Land and Environment Court New South Wales Medium Neutral Citation: Petrovski v Inner West Council [2017] NSWLEC 1287 Hearing dates: 8 May 2017 Date of orders: 19 June 2017 Decision date: 07 June 2017 Jurisdiction: Class 1 Before: Morris C Decision: See para 69 Catchwords: DEVELOPMENT APPLICATION: alteration and additions to existing boarding house, whether alterations to existing rooms are required; compliance with controls in development control plan; whether sufficient amenity and adequate car parking is provided; whether an overdevelopment of the site and orderly and economic use of the land. Legislation Cited: Environmental Planning and Assessment Act 1979; Marrickville Local Environmental Plan 2011; State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Gligor Petrovski (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Solicitors: Planning Law Solutions (Applicant) Mr S Kondilios Hall & Wilcox Lawyers (Respondent) File Number(s): 281762/2016 Judgment 1. Mr Petrovski owns as existing boarding house at 115 Livingston Road, Marrickville and authorised lodgement of development application DA201500545 with Inner West Council seeking consent for alterations and additions to that boarding house to increase the number of boarding rooms from 22 to 31 and provide additional boarding house facilities within the premises. 2. That application was refused consent on 4 April 2016 and an application for review of the determination was lodged with the council pursuant to the provisions of s82A of the Environmental Planning and Assessment Act 1979 (EP&AAct) accompanied by amended plans that attempted to address the council's original reasons for refusal of consent. 3. The council also refused the review request and Mr Petrovski is appealing that determination. The site and its context 1. The site is located on the western side of Livingstone Road with a 10.26m frontage to that road, a depth of 48.77m and site area of 512m². It has an access handle running along the western rear boundary that connects to George Street and provide vehicular access to the site and also to adjoining properties to the north. 2. Existing improvements include a two-storey terrace house converted to a 22 room boarding house in accordance with previous approvals issued by the Council. The site does not contain any existing vegetation of significant. 3. The land uses surrounding the site to the north, south and west comprise a mixed scale of residential land uses. A small scale strip of neighbourhood business shops are situated opposite the site on the eastern side of Livingstone Road. Background and the proposal 1. According to the evidence, the Council issued development consent No. 2/1991 on 23 December 1970 for 18 lodger rooms and owner's quarters. Building application No. 256/84 dated 5 July 1984, approved alterations and additions to an existing lodging house which limited the number of occupants to 24 persons. Determination No. 497/92, dated 11th February 1993, approved an application to relocate internal wall to the storeroom of the boarding house as to increase the size and use of the room for habitable purpose. The application limited the number of occupants to 32. 2. The subject application proposes alterations and additions to the existing boarding house to increase the number of boarding rooms to 28. Those additional rooms would be provided in an addition to the rear of the existing building at ground level and a new storey constructed over the rear portion of the existing terrace building. Internal alterations that reconfigure bathrooms, common room/kitchen/dining areas are also proposed. 3. The existing hardstand area to the rear of the site would be removed with an access ramp constructed adjacent to the site's northern boundary which would provide an accessible access to the building. This is currently not available. A second ramp would be provided at the frontage of the site and run along the southern setback area to a new pedestrian entry midway along the ground floor. An outdoor area would be provided adjacent to Room 3 which would be the designated Manager's room. An area for bicycle parking would be set aside adjacent to the new entry point. 4. The resultant development would comprises 10 boarding rooms (including manager) a common room/kitchen/dining/lounge area, 3 bathrooms and laundry at ground level, 11 boarding rooms, common kitchen/dining area and 2 bathrooms at first floor level and 7 boarding rooms, a common room/kitchen/dining area and bathroom at second floor level. 5. Of the 28 rooms, 3 and 9 exceed 16m2 and are therefore capable of occupation by 2 persons. Room 5 is the nominated Manager's room. 6. A landscaped grassed area of 41.97m2 adjacent to the ramp would be provided with a clothes drying area and two motor cycle parking spaces at the rear of the site and a new garbage bin storage area in the south western corner. The planning controls 1. The site is zoned R1 General Residential under Marrickville Local Environmental Plan 2011 (LEP). The proposed development is permissible with consent on the site. Clause 2.3 (2) of the LEP requires that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R1 zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for retail premises in existing buildings designed and constructed for commercial purposes. • To provide for office premises in existing buildings designed and constructed for commercial purposes or as part of the conversion of existing industrial or warehouse buildings. 1. Part 4 of the LEP provides Principal development standards and those relevant to the application are clauses 4.3 Height of buildings and 4.4 Floor space ratio (FSR) with a maximum of 14m and 0.6:1 permitted respectively. 2. The application is lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). Part 2 Division 3 applies to boarding houses with clause 29(1)(c)(i) providing for an additional 0.5:1 FSR on the site because residential flat buildings are a permissible use. Therefore a maximum FSR of 1.1:1 is permitted and the proposed development complies with that maximum and, with a building height of approximately 9 m, the development standard in 4.3 is also met. 3. Marrickville Development Control Plan 2011 (DCP) applies to the site with Part 2.1 Generic provisions - Urban design; 2.7 Solar access and overshadowing 2.9 Community safety and 4.3 Boarding houses particularly relevant to determination of the application. The Council submits that Part 4.2 Multi dwelling housing and residential flat buildings is also a relevant consideration. The issues 1. The contentions in the case are the proposal does not comply with the minimum accommodation size described in clause 29(2)(f) of SEPPARH; that inadequate communal living areas are provided with the layout being impractical and providing limited opportunity for use given the ratio of occupant numbers to the proposed space; inadequate bathroom facilities are provided; the proposal is not compatible with the desired future character of the local area and therefore contrary to clause 30A of SEPPARH; the development does not comply with a number of controls in the DCP; the proposed development will result in poor amenity outcomes for future occupants of the development; the development does not comply with the car parking requirements for the boarding house; the development represents an overdevelopment of the site and does not promote the orderly development of land and is therefore not in the public interest. The evidence 1. At an earlier conciliation conference, the Court took a view of the site and the surrounding locality and had heard evidence from a number of persons in relation to their concerns regarding the proposed additions. Those concerns related to waste management, stormwater disposal limitation on number of occupants, potential impacts on infrastructure, asbestos concerns, height and FSR concerns, construction noise, the nature of occupants and whether backpackers were to be encouraged to utilise the premises, security/antisocial behaviour, parking for assisted services, concerns that dogs may be permitted and therefore noise results, impact on the availability of on-street parking due to the additional population and a concern about the nature of the proposed development. 2. Expert town planning evidence was heard from Mr M Shanahan for the applicant and Mr A Hammoud for the Council. They agree that the proposed new boarding rooms meet the minimum size of 12m² required by clause 29(2)(f) of SEPPARH and that the proposed boarding rooms 20 and 21, being alterations and enlargement of existing rooms are of an acceptable size. They also agree the development will increase the ratio of communal room space per resident by 72% from the existing areas provided and the provisions of clause 29(2)(c) of SEPPARH are met as the first floor communal room receives at least three hours of sunlight in midwinter and whilst not meeting that standard, they agree the ground floor communal room receives sunlight around noon in midwinter. 3. It is also agreed that the additional overshadowing of the proposal on the private open space of No. 117 Livingstone road is acceptable however they disagree on the acceptability of overshadowing of the rooms of that property. 4. It is common ground that there is a serious shortage of accommodation that is affordable for low and very low income tenants in the Inner West LGA and that the development provides accommodation for people on low and very low income. They also agree that there is evidence that a significant proportion of the residents of this boarding house would be at risk of homelessness if this accommodation was not available and that the provision of additional accommodation for people on low and very low incomes could assist reducing the extent of homelessness, is a positive social and economic impact of the development however they disagree as to the weight that should be given to this impact in weighing up the overall acceptability of the impacts of the development or that it is in the public interest. 5. They do not agree on whether the existing boarding rooms that are below 12m² are acceptable, whether the site coverage proposed is appropriate and whether the change in the area of open space and the loss of available car parking is acceptable. 6. The Council, in its draft conditions of consent, sought to impose deferred commencement conditions that require amendment of the plans so as to delete the proposed ground floor addition to the rear of the building containing proposed rooms 7 and 8 and the laundry; convert room 10 to a laundry; combine existing ground level rooms 1 and 2, 4 and 5 into one room for two lodgers, consolidate ground level room six into the adjacent communal living area, combine first floor rooms 14 and 16 into one room for two lodgers, consolidate first floor room 17 into the adjacent communal living area, proposed second floor rooms 25 and 26 into a communal living room and convert the proposed second floor kitchen/dining area into a single occupant room with a minimum floor area of 12 m². In addition, amendments to the roof plane are required that ensure the adjoining boarding house at 117 Livingstone Road achieves no less solar access to the boarding rooms than the current level and the area of the proposed addition was to be developed as open space. 7. The resultant building would contain 4 boarding rooms, 3 bathrooms, an enlarged common room/kitchen/dining area and a laundry on the ground floor. Nine boarding rooms, an enlarged common room/kitchen dining area and 2 bathrooms would be provided on the first floor with a large common room, one bathroom and 6 boarding rooms provided within the second floor. 8. The amendments sought by way of the council's proposed deferred commencement condition would result in a total of 19 boarding rooms, of which four would be of a size capable of accommodating two persons. The issue was not properly canvassed during the hearing as the numbers discussed did not have regard to the provisions of draft condition A1(a) and (b). The evidence was provided on the basis of 24 rooms however the effect of these conditions is that only 19 rooms would result, therefore an effective reduction in the number of rooms from 22 to 19 however an increase in potential capacity from 22 persons to 25. 9. The applicant opposed that condition on the basis that it would not be economically viable to carry out the extent of works proposed to lose three rooms. It is also argued that double rooms are rarely occupied by two people and therefore there would be a reduction in occupancy should the condition be imposed. 10. In his expert report, Exhibit 3, Mr Hammoud includes a table that identifies the proposed room sizes, whether they are existing or proposed, and whether they meet the requirements of clause 29(2)(f) of SEPPARH. That clause is in the following form: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:…… (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. 1. On the basis of that table, Mr Hammoud says that only 2 of the 15 existing rooms in the boarding house achieve the minimum accommodation size prescribed and those non-compliant existing rooms within the boarding house provide poor amenity for occupants due to their sizes. This situation is exacerbated by the poor level of amenity those rooms attract (i.e. sunlight and space). According to the table, the smallest room with in the existing boarding house has an area of 7.71 m² with other rooms ranging from 8.2 m² to 11.52 m². All of the proposed new boarding rooms have an area of 12 m² or greater. 2. It is Mr Hammoud's position that the provisions of SEPPARH should be applied to the whole of the boarding house to improve its amenity. He says that given the extent of the modifications proposed to the existing boarding house, the non-compliant rooms could be altered to improve the amenity of those rooms and ensure compliance with the minimum room size requirement of 12 m² whilst not reducing the overall capacity of the boarding house. This would be achievable by making the non-compliant single occupant rooms double occupant rooms. 3. Clause 30(1)(a) of SEPPARH is in the following form: (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, 1. The proposed development includes a total of three communal living rooms with one room provided on each level of the building. Mr Hammoud accepts that the proposal satisfies the quantitative component of the control however argues that on a qualitative basis, the rooms are inadequate as communal living areas as they have impractical layouts and provide limited opportunity for practical use by occupants. That is because he says the communal living, dining and kitchen area on the ground floor is located within a compromised area incorporating the main hallway which significantly reduces the width and usability of the space. The communal living, dining and kitchen room on the first floor is located within a small room measuring 7.5m² which would not provide sufficient space for the placement of any furniture to allow occupants to enjoy the use of the room and amenity. 2. He considers the room is barely of sufficient size to service the communal kitchen let alone the proposed combined communal, kitchen/dining indicated on the plans. In relation to the communal room on the second floor he notes it is located on the southern side of the building with no direct solar access in midwinter and says its size does not provide sufficient space for placement of any furniture apart from kitchen cabinetry to allow occupants to enjoy the use of the room and amenity. Accordingly, he concludes that a better spatial design of the rooms would bring about a better provision of communal living space for the occupants of the boarding house. 3. Mr Shanahan says the proposal provides a 72% increase in the ratio of communal living space to residents than currently provided. At present two communal rooms with a combined area of 18.54m² serve 23 residents (0.8m² of communal room per resident). The proposal provides three communal rooms with a combined area of 42.78m² serving 31 residents (1.38 square metres per resident). The proposed ground floor communal area is substantially larger than the existing kitchen/dining room which it replaces and the main for area is available for general circulation and adds to the sense of spaciousness of the room. The indicative furniture layout is accurately scaled and the room readily accommodates seating for six people at the dining table and adequate lounge areas. Similarly, he considers the common room on the first floor is adequately sized or its purpose he notes that it is proposed to relocate the kitchen bench to the southern side of the room so the breakfast table can be placed against the north facing window which is being increased in height to extend the penetration of sunlight into the room. 4. In relation to the likely occupancy of the double rooms, it is Mr Hammoud's position that these could be occupied by unrelated people which would provide more affordable housing and he has observed to such rooms being let to such people in a couple of circumstances compared to around 500 rooms that he has observed in the area. 5. Mr Shanahan notes that four of the existing boarding rooms are designated as double rooms and are all let to single lodgers for $10 per week more than the remaining single rooms within the boarding house. For that reason he does not consider that converting rooms from single to double occupancy would automatically result in an increase in population of the boarding house and considers that the proposed conditions would not result in affordable housing. 6. Clause 29(2)(d) of SEPPARH is in the following form: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, 1. The plans provide an area of 9.02m² for manager outdoor area and 41.97m² landscaped open space within the rear yard of the site. It is common ground therefore that the development complies with those requirements. Mr Hammoud says the issue is the quality of that open space which was required as car parking under the previous consent. The proposal seeks to reduce the area of open space to a level more than compliant (41.97m2 proposed - 20m2 required) with the provisions of SEPPARH which he considers does not offset the fact that the existing rooms are substandard in terms of that policy and he said the amenity would be further reduced by taking away open space and adding additional occupants to the development. He advocates a minimum area of 10.8m² for boarding house rooms. 2. Mr Shanahan says that having regard to the 1984 approval, the area of open space is not being reduced however he does accept that the four parking spaces provided at that time would be deleted. He says the existing boarding rooms are adequate, there is a low vacancy rate within the boarding house and this fact indicates that the facility is providing much-needed affordable rental housing in the locality. He notes that the provisions of clause 29(2)(f) are not minimum areas, they are areas that if met cannot be used to refuse development consent. 3. Clause 29(2)(e) is in the following form: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (e) parking if: (i) in the case of development in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and (iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, 1. Clause 29(4) is in the following form: (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 1. The effect of subclause 4 is that the provisions of clause 29 are not development standards, they are in effect, standards that if met are not reasons that consent cannot be refused. Accordingly, consent can be granted in the event that the non-compliance with any of the controls within the clause are considered to merit consent being granted. Applying the parking provisions of subclause 2(e), the development would generate a parking requirement of one parking space for the manager and 5.6 spaces for the 28 boarding rooms as the site is within an accessible area for the purposes of the SEPPARH. 2. Mr Shanahan notes that typically, none of the lodgers within the boarding house own a car and says there is no reason to expect that this pattern of low car ownership will change. Contrary to the Council's contention, the provision of car parking on the site would reduce the amenity of all lodgers by creating additional hard paved area and reducing the landscaped area available for recreation. He says the development with nil car parking represents the best amenity outcome for lodgers and if the development was refused on that basis or car parking required by previous approvals reinstated, the landscaped area would be halved, the rear fence (which provides privacy and security) would have to be removed and none of the other additional amenity benefits conferred by the development would be available. 3. Mr Hammoud says that the car parking spaces required however not provided under the 1984 consent are a form of amenity afforded to the occupants of the boarding house. The proposal seeks to remove those spaces as approved but more than that reduce the amount of existing communal open space at the rear of the site to construct two additional rooms thereby increasing the yield of the property and reducing the amenity of boarding house occupants. 4. Clause 30 of SEPPARH is in the following form: (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house. 1. These provisions are development standards. The numerical provisions of subclauses (a), (b), (c), (e) and (h) are met. The experts agree that adequate bathroom facilities are provided. The main area of disagreement between the experts is in terms of functionality of the common areas rather than adequacy of kitchen facilities. 2. Clause 30A is in the following form: 30A Character of local area 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. The experts have agreed that the proposal is compatible with its context when viewed from the Livingstone Road frontage of the site. Having regard to the View Study prepared for the applicant, they agree the three locations from which the proposal is presented are relevant positions for determining compatibility and that the presentation of the proposal from location to in study is acceptable however they disagree on the acceptability of the appearance of the development from location one and (to a lesser extent) location three. 2. Mr Hammoud says the visual catchment for the particular development is made up of two catchments including along Livingstone Road which is the principle street frontage of the development and along George Street where the addition will be highly visible. Along George Street the visual catchment is defined by properties between Livingstone Road to the east and up to 37 George Street to the west, approximately 60m to the west of the site. 3. He says the character of the "local area" when viewed from Livingstone Road is considered to be at the established built form within the immediate vicinity of the site comprises mostly single and two storey detached dwellings on single allotments with some 2 and 3 storey residential flat buildings dispersed between. When viewed from George Street the local area is equally considered to be the established built form within the immediate vicinity of the site which comprises mostly to and three-storey residential flat buildings with some single storey detached dwellings on single allotments dispersed between them. The character of the wider catchment is made up of a mixture of residential development type including single and two storey detached dwelling houses and 2 to 3 storey residential flat buildings. He does not dispute the proposal is not compatible with its context when viewed from Livingstone Road however he says it is incompatible when viewed from George Street. 4. In acknowledging this section of George Street, which is zoned R1 General Residential where residential flat buildings up to 14m high are permissible on the northern side and 17m on the southern side Mr Hammoud says that FSR, setbacks, site coverage and other building envelope controls are likely to result in development not being able to achieve the height limits. In addition, he says the physical impacts of the development are unacceptable, in particular the overshadowing impacts on 117 Livingstone Road and therefore the development would be inconsistent with the future character fo the local area and the wider catchment which he says will remain relatively unchanged. 5. Mr Hammoud says that any new development within the local area is required to be sympathetic to existing development by interpreting and translating any positive characteristics found in this street and locality into design solutions (control C20 in Part 4.2.5 of the DCP). With the exception of the existing rear addition on the subject site and the addition on the rear of 117 Livingstone Road, the roofs of development in the local area are characterised by traditional pitched roof. The addition of the rear of 117 Livingstone Road was approved in 2006 prior to the current LEP and DCP. A more recent addition to the rear of 113 Livingstone Road was approved in 2013 under the current LEP and DCP which adopts a more sympathetic and characteristic pitched roof form. The proposed addition in the subject application incorporates a skillion style roof with shaved edges that do not translate any characteristic of development in the local area. The roof shape and overall building appearance when viewed from George Street is unsympathetic and incompatible with the local area and the appearance of the development is not considered capable to exist in harmony with the buildings around it and the character of the street. 6. Similarly he says the 400mm setback for the third story addition on the northern boundary and a 1.8m/part nil setback for the third story on the southern boundary are not characteristic of any development in the local area and similarly incompatible. That reduced boundary setback would create a constraint for adjoining properties that would consequentially require increased boundary setbacks for any future development. The application proposes a reduction in the amount of landscaping around the site particularly within the rear setback that currently contains the existing outdoor communal open space. The rear western setback area of properties between 111 to 117 Livingstone Road contain landscaped rear yards or car parking spaces with 117 Livingstone Road being the only property on the run of terraces that contains a single storey rear structure. The proposed single story addition to the rear of the site will reduce the amount of existing landscaping on the site and results in a built form that is uncharacteristic of development within the local area and incompatible with the character of the surrounds. He concludes the proposal is not consistent with the rhythm of the built form, does not reflect the landscape character of the area and the resultant built form involves the use of a larger portion of the site than is characterised by other development in the local area. 7. Mr Shanahan says Part 9 of the DCP provides a desired future character statement for the specific precinct and the site is within the Marrickville Road (Central) precinct No 19. Part 9.19 states that "the area is characterised by a mix of dwelling houses and residential flat building.... The land use pattern of the precinct consists of a mix of low and medium density residential areas. Multi dwelling housing and residential flat buildings are part of every street in the precinct." The desired future character statement relatively includes: "to protect groups or run of the buildings which retain their original built form including roof forms, original detailing and finishes. To protect significant streetscape and/or public domain elements within the precinct including landscaping, fencing, open space, sandstone kerbing and guttering, views and vistas and prevailing subdivision pattern. Preserve the predominantly low to medium density residential character of the precinct." 8. He considers the main compatibility issue is the third storey addition over the rear part of the existing boarding house and notes the Council assessment reports of the original DA considered that views of the third story would be restricted immediately in front of the site from Livingstone Road and would be highly visible further south and whilst it was acknowledge that three-storey forms exists on George Street the site has a primary frontage to Livingstone road which is the predominant character for the site. 9. In relation to the agreed view study locations in George Street, Mr Shanahan notes the rear third story addition is visible from location one but does not appear higher than the chimney of the boarding house or the ridges of the neighbouring buildings to each side. It comfortably infills a gap in the existing built form. A number of walk-up residential flat buildings along George Street are also visible from this location. The bulk and scale of the proposal is appropriate in this context. From points further west along George Street, flats become more dominant in the streetscape and the addition becomes a more minor visual element. From location 2 on George Street, the third story has minimal visibility. This has been achieved by the roof being designed to generally follow the plane of the roof of 117 Livingstone Road and by adopting reasonable ceiling heights to minimise building height. From location 3 off Livingstone Road the proposal has minimal visibility. He says this confirms the development does not have an adverse impact on the George Street streetscape, is not a poor design outcome and will be compatible with the existing built form of the adjoining development in a sense of being capable of existing in harmony. 10. In terms of impacts on 117 Livingstone Road, Mr Hammoud says that because each boarding room is in effect a "living room" the solar access provisions of the DCP should be applied and the additional storey would increase overshadowing to the first floor windows and is therefore unacceptable. 11. Mr Shanahan disagrees and says that the rooms are bedroom and whilst the elevational shadow diagrams indicate that some windows in the upper floor of No 117 are progressively overshadowed through the day in midwinter the living room windows of that property face south towards George Street and therefore the development does not affect the DCP compliance. The 8.6m height of the proposed third story addition is well below the 14m height limit permitted by the LEP and has been minimised by using raked ceilings. The southern edge of the roof has been chamfered so that its overshadowing impact is further reduced. Given the east west orientation of the site and the minimal setback of No 117 from the common side boundary, the extent of overshadowing is considered to be reasonable and within the parameters that anticipated by the relevant planning controls. Conclusion and findings 1. Clause 30A of SEPPARH requires consideration whether the design of the development is compatible with the character of the local area. In this regard, guidance is provided in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 with the following relevant considerations: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 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. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials. 1. Having regard to these principles and the existing character of the local area, I find that the design of the building is compatible with that area. That is because there are a range of buildings including three-storey walk up residential flat buildings, a variety of building bulk and shape, and no established pattern of rear yards, landscaped corridors or built form. This fact is acknowledged in the character statement of the DCP and I do not consider that there is any reason that a particular roof design should be incorporated in to the proposal. The proposed development does not have to be the same to be compatible. Importantly, the original terrace built form is maintained to Livingstone Road. Similarly as the building is well below the maximum building height I consider the impacts of the proposal on adjoining properties are acceptable and that whilst there will be some overshadowing of adjacent boarding rooms, that is not inconsistent with the controls of the DCP which apply to living areas. 2. I do not accept the Council's proposition that the provisions of SEPPARH should be applied to the existing boarding rooms. To do so would be contrary to the aims of the plan which seeks to facilitate the retention and mitigate the loss of existing affordable rental housing and to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing. The Council's draft conditions have the effect of reducing the number of rooms from the 22 currently provided to 19 and I accept the submission of Mr Pickles for the applicant that the imposition of such conditions would result in the proposal not being financially viable. For that reason I consider the draft conditions would be tantamount to refusal and contrary to the aims of SEPPARH. 3. Whilst the existing rooms do not satisfy the recommended minimum room sizes under the policy, those are, according to the agreed evidence, currently providing low to very low income housing and have a high occupancy rate. The provisions of the clause if met, are reasons for which consent cannot be refused and therefore, it is possible for consent to be granted for rooms of a smaller size if the circumstances of the case merit such a conclusion. I consider that in this case, the room sizes are adequate, given that they have been functioning for a number of years and providing much needed low-cost affordable rental housing. 4. Similarly, I except Mr Shanahan's evidence that the facilities to be provided as a result of the proposal improve the ratio of bathroom and common room facilities and note that there is no contention in relation to the adequacy of kitchen facilities. SEPPARH does not establish any minimum size for common rooms and I am satisfied that adequate area is provided for occupants of the boarding house. Whilst I accept Mr Hammoud's concerns that the current boarding house is not optimal in terms of room size and amenities, it has functioned satisfactorily since approved by the council in its current form since 1984 and operated since 1970 and is clearly meeting a social and economic need in the locality. 5. The development satisfies the landscaped open space requirement and whilst no on-site car parking would be provided, this is not mandatory under the provisions of SEPPARH and, having regard to the circumstances of the case, the evidence provided in relation to the boarding house catering for low to very low income earners, the lack of car parking is not considered to be grounds for refusal of consent. I note the motorcycle and bicycle parking provided is compliant with the policy. 6. Having regard to the DCP, I accept Mr Shanahan'ss evidence, and consider that the proposal, whilst not meeting numerical compliance with those controls, is acceptable in the circumstances of the case and satisfies the objectives of those controls having regard to the new works and the fact that the premises is currently operating as a boarding house. 7. Contrary to the Council contention, I consider the proposal does promote the orderly development of land and is therefore in the public interest. 8. In view of my findings there are no reasons why consent should not be granted. As the parties had not agreed on consent conditions by the conclusion of the hearing, it was agreed that it was appropriate that I deliver my findings in relation to the application and in particular the deferred commencement conditions. That would allow the parties to prepare conditions that reflected my decision. 9. I find no reason why the works should not be approved in accordance with the plans in Exhibit B. There is no need to consolidate any of the rooms as outlined in the council's deferred conditions nor to delete the proposed ground floor additions or amend the roof design. The development of 28 boarding rooms including one Manager's room and 2 double rooms is appropriate. A agreed Plan of Management should be prepared and referenced in those conditions. I do not consider that it is appropriate for the applicant to provide a bank guarantee in lieu of s94 condition in the event that the property is eligible for land tax exemptions (draft condition B47 alternate) nor is it necessary to modify any previous consents as the consent that will follow would apply to the whole of the land and operation of the boarding house. Directions 1. The parties are directed to file agreed conditions of consent by 4pm 16 June 2017 that reflect this decision. On receipt of those conditions, final Orders approving the application will be made in Chambers. Orders 1. In accordance with the terms of paragraph 68 in my judgment of 7 June 2017, on 16 June 2017 the parties provided me with the agreed conditions of consent. I am satisfied that the conditions of consent accord with my findings and accordingly I make orders in chambers as follows: 1. The appeal is upheld. 2. Development Application DA201500545 for alterations and additions to an existing boarding house at 115 Livingstone Road, Marrickville to increase the number of boarding rooms from 22 to 31 and upgrade bathrooms, kitchens and common areas is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 2, B and G, are returned. ____________________ Commissioner Sue Morris 281762.2016 (C) (337 KB, pdf) ********** Amendments 19 June 2017 - Orders made by Commissioner Morris 19.6.17 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: 19 June 2017