Land and Environment Court New South Wales Medium Neutral Citation: Ruan v Cumberland Council [2016] NSWLEC 1565 Hearing dates: 22 November 2016 Date of orders: 30 November 2016 Decision date: 30 November 2016 Jurisdiction: Class 1 Before: Dickson, C Decision: The orders of the Court are: 1. The appeal is upheld; 2. Consent is granted to Development Application No. DEV/806/2015 for the construction of a two storey boarding house which contains 14 double rooms and a managers room, with associated parking and communal areas at 41 Claremont Street, Merrylands, subject to conditions in Annexure A; 3. The exhibits are returned with the exception of 1, A, and the amended Statement of Facts and Contentions dated 27 September 2016. Catchwords: DEVELOPMENT APPEAL – Boarding house - Affordable rental housing policy- character - compatibility with local area. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Helen Ruan (Applicant) Cumberland Council (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Solicitors: Mr V Conomos, Conomos Legal (Applicant) Ms K Law, Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2016/00158139 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of Development Application No. DEV/806/2015 for the construction of a two storey boarding house, which contains 14 double rooms and a managers room, associated parking and communal areas, at 41 Claremont Street, Merrylands (the site). 2. The appeal was subject to mandatory conciliation commencing on 21 March 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 23 August 2016, pursuant to s 34(4) of the LEC Act. 3. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 30 August 2016 for the applicant to rely on an amended set of architectural plans (Architectural Plans by JSA Studio) and associated Statement of Environmental Effects. 4. In response to the joint planning report, at the commencement of the hearing the applicant tabled further amended plans incorporating the recommendation of the their town planning expert to lower the ridge height of the single storey element at the rear of the development (Architectural Plans by JSA Studio, dated 18.11.16 Revision H). The tabling of these plans was not objected to by the Council and it is these plans, with the lowered ridge, that are currently before the Court (Exhibit A). The site and its locality 1. The site is legally described as Lot 175 DP 10194 and is a rectangular shaped mid-block allotment located on the northern side of Claremont Street, Merrylands. The site has an area of 861.9m² and currently contains a single storey residential dwelling and outbuildings. The site is in proximity to the railway line. 2. The site is surrounded by residential developments, the older stock are predominately detached housing in a mixture of brick and fibro clad materials (both single and two storey) whereas the newer stock comprises single dwellings and dual occupancies constructed predominately in brick with some developments finished in render. The newer developments have larger presentation of mass to the street and street fronting garaging, as opposed to the older stock where the garage is located behind the building line. Background and the proposal 1. The application was lodged with the Council ion 9 November 2015, and was notified (in accordance with the relevant policy) to local residents, some of whom objected to the development. The Council assessment report (Exhibit 2) identified that 8 individual submissions and a petition were lodged with the Council during the notification. Copies of these submissions were tendered (Exhibit 2). 2. Whilst the applicant has amended the development since this notification the Court was addressed at the onsite hearing by residents. The central concerns of the community with the proposal can be summarised as: 1. concern that the boarding house will overlook their property and lead to a loss of privacy in both their home and garden; 2. the size of the boarding house (16 rooms) will be visually overbearing and is out of keeping with the neighbouring properties, which are predominantly houses and townhouses; 3. concern that the development is not compatible with the common with the character of street; and 4. the use of the boarding house will result in a concentration of traffic on roadside parking as well as noise that will create a loss of residential amenity. 1. The proposal comprises the demolition of the existing site improvements (including removal of four trees), the construction of a two storey boarding house containing 14 boarding rooms and a manager's room. All the rooms consist of a living room with kitchenette and ensuite bathroom. Communal spaces are provided within the development including a laundry and kitchen/dining/living area. Parking is provided for 3 vehicles, one accessible space, 3 motorcycle spaces and 3 bike racks. Planning framework 1. Section 79C(1)(a) of the Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. 2. The site is zoned R2 Low Density Residential under the provisions of Parramatta Local Environmental Plan 2011 (LEP 2011), which was gazetted on 7 October 2011. The proposed development of the boarding house is a land use that is identified as being permissible with consent in the R2 zone. 3. Pursuant to clause 2.3 (2) of LEP 2011 the consent authority must have regard to the objectives of the zone when determining an application in respect of land within the zone. The objectives of the R2 zone are as follows: ● to provide for the housing needs of the community within a low density residential environment ● to enable other land uses that provide facilities or services to meet the day to day needs of residents ● to ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment ● to allow for a range of community facilities to be provided to serve the needs of residents workers and visitors in residential neighbourhoods. 1. It is agreed between the parties and the experts that the proposal meets the objectives of the zone. 2. Part 4 of LEP 2011 contains principal development standards with clause 4.4 Floor Space Ratio (FSR) prescribing a maximum FSR of 0.5:1 for the site, and at clause 4.5 a maximum building height of 9 m. The development complies with these development standards. 3. The proposed development is defined as a boarding house under clause 3 of LEP 2001. 4. The application was lodged pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). This policy commenced in July 2009 with the "local character test" included at cl 30A via amendments on the 20 May 2011. This clause states: a consent authority must not consent to development to which this division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. It is agreed between the parties and the experts that the proposal meets the remaining provisions of SEPPARH, where relevant to the proposal. In particular the proposal complies with the mandatory standards is set out in clause 30 (1) of the SEPP which are a precondition to consent. The compliance of the development with cl 30A (the character test) is a contention between the parties. 2. The Parramatta Development Control Plan 2011 (DCP 2011) applies to the proposal. Specifically in part 5.1 the DCP provides specific controls in relation to boarding houses. The relevant controls to the current application are detailed below. 3. At cl 5.1.4 (P1) locational criteria for boarding houses are provided. These require the facilities and services likely to meet the daily needs of residents to be located within a walking distance of 400 m from the site, and a regular public transport service to be available within the same distance. It is agreed between the parties that this provision is satisfied. 4. At cl5.1.4(P4): Building form and appearance, DCP 2011 states new development (including alterations and additions) shall be consistent with the predominant built form and design elements of the surrounding locality and the streetscape. The DCP provides a cross-reference to Section 3.2: Building Form and Massing. 5. The objectives of clause 3.2.1 in relation to building form and massing are as follows: 1. to ensure buildings are compatible in form relative to the spatial characteristics of the local area. 2. to ensure building mass and form reinforces, complements and enhances the visual character of the Street. 3. to ensure the distribution a building height and mass preserves and enhances neighbourhood amenity, site characteristics and environmental constraints. 4. to ensure that where changes in building scale, mass and/or height is proposed it occurs in a manner that is sensitive to amenity issues of surrounding or nearby development. 5. to ensure development achieves the maximum floor space ratio permitted on any site does not inhibit any other Objective, Performance Criteria, Design Principal or Design Controls contained within this DCP. 1. DCP 2011 addresses Streetscape at clause 3.2.5. The clause defines streetscape as representing the interrelationship between buildings, landscape and open spaces in the street scene. The objective of this clause is as follows: 1. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment. 2. To increase the legibility of streetscapes and urban spaces so that the interrelationship between development, landscape and open space is visually coherent and harmonious. 3. To maximise opportunities for buildings to define the public domain. 4. To encourage active Street frontages and improve pedestrian amenity. Issues 1. As a result of the joint conferencing and amended plans Council accepts that the site is suitable for development as a boarding house and the contentions in relation to: the compatibility of the development with the zone objectives; any impact on trees on the adjoining property; proximity of the development to a reasonable range of services; manoeuvrability of vehicles; and the absence of a BASIX certificate are no longer pressed by the Council as reasons for the development to be refused by the Court. 2. The key issue for the Court therefore is whether the development, as proposed in the architectural plans in Exhibit A, meets the test of being compatible with the character of the local area. 3. The area of central concern for the Council in relation to the issue of the compatibility of the development is the treatment, and side setbacks, of the rear single storey component. 4. The issues before the Court therefore are: whether the agreements between the experts are well founded and satisfy the matters for consideration in s79C (1)(a)-(c) of the Act; and to consider the appropriate outcome for the setback and height of the single storey portion of the development at the rear of the site. 5. I have reviewed the agreed evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that they appropriately consider the issues raised by the contentions, and the appropriate planning controls, and I accept their conclusions. The Evidence 1. The hearing commenced on site with evidence heard from an objector to the proposal who resides to the immediate west of the site (43 Claremont Street). Her concerns are summarised at [8]. 2. Expert town planning advice was heard from Mr Scott Barwick for the respondent and Mr Nigel Dickson and Mr Warwick Gosling for the applicant. 3. In the course of the proceedings the experts agreed that the local area is characterised by low density development consisting of one and two storey, dual fronted, small windowed, hipped and tiled roofed detached dwellings. It was acknowledged that whilst this is characteristic of the area, it is going through a period of change and transition with new higher density developments being constructed. 4. It was agreed by the experts that local area was defined as the following properties: 1. Claremont Street [23-51(odd) and 34-54 (even)]; 2. Alton Street; 3. Malvern Avenue [26-38]; 4. Harper Street [1 &2]; 5. 72 Pattern Avenue; and 6. 132 ,134, 136 &150 Railway Terrace. 1. The experts also agreed that it is characteristic of the local area for structures to be located in the rear of lots. It was not agreed between the experts whether this would remain characteristic of the future character of the area as and when redevelopment occurred. 2. The planning experts concur that the character of the local area and its predominant attributes are one and two storey residential dwellings consisting of dual fronted, small windowed design with hipped and tiled roofs. The newer forms of development are of a greater density with an emerging rear alignment of the two storey component at a setback to the rear boundary of between 22m and 27m. 3. As detailed at [22] the experts have agreed that the two storey, street facing, component of the proposed development meets the objectives and numeric controls applicable to the development and is acceptable. The principal issue in which they disagree is whether the proposed design of the single storey component of the development (refer extract of the plans below) is compatible with the character of the local area. 1. The experts have opposing views of the appropriate resolution of the single storey component, its relationship to the side boundary, and its compatibility with the character of the local area. The differences of approach are demonstrated in the following diagrams: 1. Applicants Option (incorporated in the plans before the Court) 1. The proposal before the Court (Exhibit A) is the alternative proposed by Mr Dickson at the joint conference, which sought to reduce the visibility of the single storey development, from the adjoining properties, by a reduction in the ceiling height, therefore lowering the springing point of the roof. This is demonstrated in the following diagram, where the red dashed line indicates the previous roof profile. The viewing cone, indicated in yellow, is from a position approximately 1.5m from the side boundary in the adjoining property. 2. Mr Dickson argues that this outcome is acceptable as the development has reduced the bulk of the building by stepping to a single storey at the rear of the site. The two storey component of the building steps in alignment with the rear of the proximate properties, 45 and 45A Claremont Street, and 49 Claremont Street, reinforcing the existing context of the development. 3. It is Mr Dickson's evidence that: to fit into this locality the building needs to have three attributes: firstly it should have street appearance which is consistent with the setback and landscape setting of the street… secondly the bulk of the building as well as the scaling devices used in the architectural expression are consistent with the existing two storey buildings in the locality… thirdly the building at the rear is to be commensurate given the size and extent of the adjoining houses (Exhibit 1). It is agreed between the parties that the first two attributes are satisfied. 4. In relation to the rear, single storey section, Mr Dickson in the joint report proposes a reduction in the ridge height of the proposal by 600mm, as demonstrated in the above elevation. It is his view that this is sufficient to reduce the perceived bulk from the rear garden of the adjoining property. He also identifies that a number of neighbouring properties either side of the site, and to the rear, contain large single storey out- buildings within the minimum required setback and span the width of the required allotment. 5. In assessing Mr Barwick's alternative (increasing the side setback to 2.5m), Mr Dickson concluded that whilst the increasing the setback to the side boundary of the rear form by a further 1.5m (to 2.5m) would result in an improved outcome from a landscaping perspective it would not necessarily reduce the appearance of building bulk from the neighbouring properties by an appreciable amount and that the design before the Court is acceptable (Exhibit 1). 6. On the site visit Mr Dickson identified a number of existing developments, that he argued, demonstrated that it is not characteristic for properties to have vegetated or wide side boundary setbacks. It is his view that the landscaping proposed, in combination with the existing landscaping on the adjoining property, will render the single storey component of the development imperceptible from the adjoining properties. It is his conclusion that the plans before the Court meet the requirements of cl 30A of SEPPAH. 7. Mr Gosling, with reference to the aerial photograph of the local area lodged with the application, identified that there are many structures located in the rear of lots in the surrounding locality. The design of the structure as a single storey form responds to this characteristic element of the local area. He argues that the proposed development complies with Councils rear setback control and is therefore consistent with the desired future character of the local area, as defined by DCP 2011. 8. It is his evidence that the design of the boarding house development maximises privacy to the adjoining properties which has been achieved by internalising the development and reducing opportunities for residents to either look sideways from their rooms or to cause privacy impacts from the rear open space. (Exhibit 1). 9. In relation to the landscaping of the side boundary it was Mr Gosling's view that the landscape plan submitted with the development application provides landscaping within the 1m setback which will effectively create a barrier between the boarding house external wall and side fence. A 1m side setback is considered wide enough to provide screen planting. It was Mr Gosling's conclusion that the better planning outcome [in reducing the bulk and scale of the development] would be to reduce the external wall height to 2.4m and maintain the 1m setback that will contain a landscaped area. (Exhibit 1). 10. In the alternative Mr Barwick, for the Council proposes an increased setback to 2.5m as a more appropriate outcome on the site as detailed below. 1. Respondents Option 1. It is Mr Barwick's view that the length of the proposed building (32.985m) at 1m setback is uncharacteristic of the area, and that this is exacerbated when compared with the depth of the existing buildings on the adjoining sites. It was this concern that he argued could be resolved by the increase in the side setback to allow for increased landscaping provisions that would have the effect of breaking up the building mass. 2. He accepted that this may result in the removal of one boarding room at the rear, but that the reduction in mass and the increased setback was more in line with the characteristic elements (such as the outbuildings) in the local area and ensured that the development did not intrude on the neighbours enjoyment of their rear yard, and patio. 3. It was Mr Barwick's conclusion in relation to the application of cl 30A of SEPPAH that the reduction in building footprint and increase in the side boundary setbacks of the rear element of the proposed building assists in making the proposal compatible with the character of the locality. (Exhibit 1) Conclusion and Findings 1. In considering the options discussed and analysed by the experts for the resolution of the building form for the rear single storey element it is not a matter of determining the "better" option. The task of the consent authority is to assess the application before it, and its impacts, against the relevant controls and requirements and determine whether it is appropriate to grant consent. If the Court was to find that the proposal was not acceptable, it may then consider whether the second option [for example of an increased setback] was appropriate and capable of being implemented through the imposition of a condition in accordance with s80 of the Act, or whether on the basis of the planning assessment refusal was warranted. 2. It is common ground between the parties that pursuant to clause 30A of SEPPAH for consent to be granted I must take into consideration whether the design is compatible with the character of the local area. 3. In the joint report, in applying the character test under cl 30A of SEPPARH [refer 15], Mr Dickson utilises the planning principle established in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where at [22] the former Senior Commissioner Roseth considers that the most appropriate meaning of 'compatible' in an urban context is capable of existing together in harmony and at [24] to [26] : 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 1. I agree with Mr Dickson that this is the appropriate test in this case and I accept the planning expert's description of the character of the local area and its predominant attributes [32]. 2. Applying Project Venture Developments v Pittwater Council, the potential physical impacts on the surrounding development from the proposal are focussed on the perceived bulk and scale of the rear portion from the neighbouring properties. With the benefit of the site view and reviewing the side elevations of the proposal I prefer the evidence of Mr Dickson and Mr Gosling and find that the impact of the development on surrounding development, as proposed, is acceptable due to: the design of the single storey pavilion which reduces its inherent visibility from adjoining properties; the design of the development to maximise privacy to the adjoining properties; the greater than 16m (compliant) setback to the rear; and the characteristic use of outbuildings in the rear of dwellings in the local area. 3. Moore, SC in considering the question of consistency in Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019 at [22] concludes that: the test of "compatibility" is distinctly different from the concept of "consistency" with the character of the local area. Compatibility is a less rigid and less demanding standard of assessment than that which is engaged by a test of consistency. 1. As the test is compatibility, not consistency, I am satisfied that the design of the building, in particular the stepping of the form at the rear, articulation and roof form is harmony with the buildings around it and the character of the street and is compatible with its context, meeting the requirements of cl 30A SEPPAH. Findings 1. For the reasons set out in the judgment, after considering the relevant matters under s79C(1) of the Act, the amended plans, the expert reports, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances. 2. The orders of the Court are: 1. The appeal is upheld; 2. Consent is granted to Development Application No. DEV/806/2015 for the construction of a two storey boarding house which contains 14 double rooms and a managers room, with associated parking and communal areas at 41 Claremont Street, Merrylands, subject to conditions in Annexure A; 3. The exhibits are returned with the exception of 1, A, and the amended Statement of Facts and Contentions dated 27 September 2016. ……………. D M Dickson Commissioner of the Court 158139.16 - Annexure A - Conditions (177 KB, pdf) Amendments 30 November 2016 - Typographical errors corrected on the cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2016