Land and Environment Court New South Wales Medium Neutral Citation: Elcheikh v Cumberland Council [2018] NSWLEC 1165 Hearing dates: 7-8 March 2018 Date of orders: 05 April 2018 Decision date: 05 April 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is dismissed. (2) The development application, numbered 540/2016, for the demolition of an existing single storey dwelling and the construction of a 5-storey boarding house at 15 Cross Street, Guildford, is refused. (3) The exhibits are returned, except for exhibits A and B. Catchwords: APPEAL – development application – boarding house – character of the local area – whether apartment design guide can be used to determine future character – compatibility – amenity impacts – overshadowing – internal amenity Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Parramatta Development Control Plan 2011 Parramatta Local Environmental Plan State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285 Category: Principal judgment Parties: Obeida Elcheikh (Applicant) Cumberland Council (Respondent) Representation: Solicitors: Mr G McKee, McKees Legal Solutions (Applicant) Mr A Gough, Storey & Gough (Respondent) File Number(s): 2017/158784 Publication restriction: Nil Judgment 1. Around 100m east of Guildford train station, Cross Street runs parallel to the train line and ends to the north at an intersection with the main shopping and business centre at Guildford Road. Cross Street is currently in a state of transition anticipated by multiple changes to the planning controls. That transition will increase the intensity of the residential development so that many of the remaining single storey dwelling houses may, over time, be developed for residential development with higher densities of varying heights. 2. At 15 Cross Street, Mr Obeida Elcheikh seeks approval to construct a 31 room, 5 storey boarding house with basement car, motorcycle and bicycle parking. The 31 boarding rooms proposed comprise 13 double rooms and 18 single rooms, resulting in a capacity for 44 residents. The development application was lodged with Cumberland Council ("the Council") on 1 December 2016. Following the expiry of the period after which an application is deemed to be refused, Mr Elcheikh appealed pursuant to the former s 97 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). Following amendments to the EPA Act which commenced on 1 March 2018, the provisions of the former s 97 have been renumbered to s 8.7(1). 3. At the hearing, Mr Elcheikh sought and obtained leave to rely on further amended plans. Those plans arise following the joint conference of the town planners, and seek to improve the quality of the communal lounge room and the communal open space. 4. The Council oppose the grant of development consent on the basis of a number of contentions, which can be summarised as follows: * The design of the proposed development is not compatible with the existing or desired future character of the local area, particularly when considered against the envelope controls of the Parramatta Development Control Plan 2011 ("PDCP 2011"). * The proposed development does not meet the boarding house design principles contained in the PDCP 2011 and would result in an unacceptable level of amenity for future occupants. * The proposed development would result in excessive and unacceptable overshadowing of adjoining properties. * The subject site is not suitable for the proposed development and the resulting side setbacks are contrary to PDCP 2011 and the established pattern of setbacks in the streetscape. * The width of the driveway at the entry is insufficient to allow the passing of cars. * The proposed development provides inadequate landscaping and deep soil area. * The stormwater drainage plan is inadequate to demonstrate that the stormwater can be accommodated by being drained to Cross Street. * There is insufficient information to consider the application, as overshadowing plans do not provide a table of compliance and noncompliance with known criteria. 1. At the conclusion of the hearing I made a direction for the parties to provide, within 14 days, an agreed stormwater drainage plan, together with the typed record of the objector evidence and the final conditions of development consent. That direction was not complied with. 2. For the reasons set out below, I have determined that the design of the proposed boarding house, particularly insofar as it includes an unarticulated southern façade set back only 3.5m from the southern boundary, is not compatible with the character of the local area, does not minimise the overshadowing of the adjoining property, and causes adverse visual amenity. I have also determined that there is insufficient communal living area provided by the proposed boarding house. I have therefore resolved to refuse the development application in its current form. In reaching this conclusion, the documents that were the subject of the direction were not ultimately required. The site and locality 1. The site is legally identified as Lot 6 in DP 10355, and has a site area of 661.4m2. It is a rectangular shaped mid-block allotment located on the western side of Cross Street, with a frontage of approximately 14.48m. The site currently contains a single storey residential dwelling and a single storey granny flat and garage at the rear. The site contains some trees and has a fall in natural ground level by 0.77m towards the rear boundary. 2. The locality surrounding the subject site consists of a mix of residential accommodation ranging from single storey dwelling houses to 3 and 4 storey residential flat buildings. The dwelling houses, which dominate the eastern side of Cross Street, are a mixture of low density one and two storey detached houses of fibrous cement, weatherboard and brick construction with metal and tile roofs. There are also some villa style multi-unit housing and a range of residential flat buildings of brick and rendered cement construction ranging in age and scale, from 2 to 4 storeys in height. Roof forms vary with the range of residential building forms, with recently constructed residential flat buildings having predominantly flat or gently sloping roofs The planning framework 1. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) 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 R4 High Density Residential under the provisions of Parramatta Local Environmental Plan ("PLEP 2011"). Clause 2.3(2) of the PLEP 2011 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives for the R4 zone are: "• To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities. • To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood." 1. Consistent with the objective to provide a variety of housing types, the uses that are permissible with consent range from dwelling houses to residential flat buildings, and include boarding houses. 2. Clause 4.3 of the PLEP 2011 establishes a 17m building height development standard in accordance with the Height of Buildings Map, and cl 4.4 establishes a maximum floor space ratio of 1.4:1 in accordance with the Floor Space Ratio map. The proposal complies with both controls, with the maximum height of around 14.5m and a floor space ratio of 1.38:1. 3. The State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH") applies. At cl 29 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides: "29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (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, (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, (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. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (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. It is common ground that the "must not refuse" criteria concerning density or scale, building height, solar access, private open space, parking and accommodation size are all met, and that therefore development consent cannot be refused on any of those grounds. However, there is a dispute between the parties concerning the adequacy of the landscaping and whether it complies with cl 29(2)(b). 2. Clause 30 of the SEPP ARH set out some standards for boarding houses that must be met, otherwise the consent authority "must not consent" to the development. These requirements concern the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager's room, requirements for motorcycle and bicycle parking, and use of the ground floor on land zoned for commercial purposes. They therefore form the minimum standards required for a boarding house, specified at cl 30(1) as follows: "(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." 1. Clause 30A of the SEPP ARH also prevents a consent authority from consenting to a development "unless it has taken into consideration whether the design of the development is compatible with the character of the local area." 2. The PDCP 2011 applies, and Part 5.1 sets out the controls regarding boarding houses. Relevantly, two of the objectives of those controls are to [at O4] "[e]nsure an acceptable level of amenity in boarding house premises to meet the needs of residents" and to [at O7], "[e]nsure that all new boarding houses are compatible with the scale and character of the surrounding built form." 3. Design Principle P4 in section 5.1.4 of PDCP 2011 provides that "new development shall be consistent with the predominant build form and design elements of the surrounding locality and streetscape". Design Principle P7 provides that "Landscape treatment at the front of the site should be compatible with the streetscape in which the building is located." 4. P10 of Part 5.4.1 of the PDCP 2011 provides that new boarding houses "shall comply with the Preliminary Building Envelope Tables provided in Section 3.1.3 of this DCP for the comparable predominant building type in the relevant zone where the new development is proposed." At Table 5.1.4.1, the comparable predominant building type in the R4 High Density Residential zone is a residential flat building. The resulting building envelope controls, which refer to the Apartment Design Guide in Section 3.1.3 of the PDCP 2011, require 4.5m side setbacks, and a frontage of 24m. The site has a frontage of 14.7m and the proposal has side setbacks of 3.5m, except for the 5th storey, which complies. 5. Section 5.1.4 of the PDCP 2011 also sets out the design principles for communal lounge rooms, communal kitchens and laundry facilities, which are discussed further below. 6. Section 3.6.2 of the PDCP 2011 sets out the controls for parking and vehicular access. Objective O1 and O2 are as follows: "O.1 To ensure that the location and design of driveways, parking spaces and other areas used for the movement of motor vehicles are efficient, safe, convenient and are integrated into the design of the development to minimise their visual impact. O.2 To ensure that adequate off-street parking is provided to serve the needs of development." 1. Design Principle P7, P14 and P20 of section 3.6.2 of PDCP 2011 provide: "P.7 Car parking spaces are to be designed to ensure ease of access, egress and manoeuvring on-site. The standards of AS 2890 are to be complied with. P.14 Basement car parks and manoeuvring must comply with AS 2890 P.20 Development must provide safe vehicle access and adequate sight distances. Development on arterial roads or development that is not a dwelling house must make provision for vehicles to leave the site in a forward direction." 1. The controls of the PLEP 2011 are required to be considered pursuant to s 4.15 of the EPA Act. In the event that there is a provision that creates an inconsistency, cl 8 of the SEPP ARH applies. It provides that in the event of an inconsistency between the SEPP ARH and any other environmental planning instrument, the SEPP ARH prevails "to the extent of the inconsistency". That is, as considered by Young JA in relation to a similar provision in Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285 at [84], "if there is a situation where there is a "can do" under the SEPP-SL and a "can't do" under the local environmental plan, then the SEPP-SL prevails." Resident evidence 1. Ms Mitchell spoke on behalf of the residents of 17 Cross Street, Guildford, which is the adjoining property to the south. She raised the following issues: * That a five storey, 32 room boarding house is an overdevelopment of the site, particularly next to the residential dwelling at 17 Cross Street, * It is out of character in the area, with the only other five storey building in the commercial zone, * Privacy impacts for residents of 17 Cross Street, * Overshadowing of the northern facing windows of 17 Cross Street, and overshadowing of the private open space. * Exacerbation of the problems caused by inadequate parking on Cross Street, which causes safety concerns. Expert evidence 1. Mr McDonald and Mr Kennan, town planners, gave expert opinion evidence in their joint report and at the hearing. Their evidence addressed the issues concerning compatibility with the local character, internal amenity, overshadowing, side setbacks, and landscaping. 2. Mr Sudarson and Mr Corbett gave evidence on the impact of the proposal on traffic, particularly in light of the proposal for a driveway width that does not accommodate vehicles passing one another. Whether the design of the development is compatible with the character of the local area 1. In considering whether the design is compatible with the character of the local area, consistent with cl 30A, Mr McDonald and Mr Kennan consider that the local area is comprised of the visual catchment viewed from and surrounding the subject site, which includes both sides of Cross Street in the vicinity of the site and the backdrop of development on Railway Terrace. They agree that Cross Street is in transition, and that within the visual catchment of the subject site there exist a wide range of residential dwelling types ranging from modest single storey detached dwelling houses situated within generous gardens to contemporary multi-storey residential flat buildings. They have observed that the roof forms also vary with the periods of development and are predominantly hipped and tiled, although some residential flat buildings include flat roofs. The residential flat building at 29-31 Cross Street includes a setback fifth storey which has a butterfly type roof form. They also identify that within the visual catchment there is the rear of a four storey mixed use building to the north-west, located at 320 Railway Terrace and within the B4 Mixed Use Zone. 2. Mr McDonald's evidence is that the PDCP 2011 takes the approach of requiring boarding houses, a permissible use in the R4 zone and more widely in the residential zones in PLEP 2011, to meet the building envelope controls that apply to the anticipated predominant residential form in that zone, which for the R4 zone are residential flat buildings ("RFBs"). This means that boarding houses are required to meet an envelope control consistent with the form of RFBs, including external bulk and scale, relationship to neighbouring properties and within the streetscape, and separation of the built form within the future residential context. His evidence is that this includes ensuring that 5 storey buildings are appropriately separated for urban design, building bulk and streetscape reasons, not just for residential environmental amenity reasons. His evidence is that in this way, the local planning controls intend to ensure that boarding house buildings will be consistent and compatible with the desired future character of the area. 3. Mr McDonald's opinion is that the proposed form and massing of the boarding house the subject of the application, with side boundary setbacks of 3.5m in lieu of the minimum of 4.5m and the landscaped areas (landscaped area is 22% in lieu of 40%) substantially less than that required under PDCP 2011 for the scale of development proposed, results in the development not meeting the objectives of the PDCP 2011 regarding desired future character. His view is that the building is proposed to occupy a site significantly deficient in terms of site frontage (width 14.7m in lieu of 24m), with a substantially greater footprint and building envelope than anticipated as the desired future character, and a landscaped area and setting, both for the building and within the context of the local area, significantly less than desired. His view is that by virtue of this bulk and scale, the resultant building will be inconsistent with the desired future character. 4. Mr McDonald's evidence is also that the design approach used, with the largely unbroken and flat bulk of the southern façade and the extensive roof with long dormers, is not reflective of the character of the existing and recently erected RFBs in the local area. His view is that the bulk of the southern façade will be highly visible from the adjoining properties to the south and the public domain to the south. His view is that the design treatment of this southern facade reflects the constrained nature of the site, being narrow and long, and that there is a lack of visual articulation. 5. The Council submits that, consistent with this evidence, the local area has a sense of horizontality whereby the built form is set within generous frontages at a height that is proportionate to their frontage. The Council submits that the proposed development does not meet those elements of the local area, and instead proposes a building that is vertical with a long unbroken southern façade. 6. In oral evidence, Mr McDonald expressed the opinion that a boarding house of a smaller scale would be suitable for the site, and that given the small frontage of the site it should adopt the building envelope controls of a different building typology, such as a dwelling house or multi-dwelling housing. Mr McDonald says that such an approach is a logical extension of the PDCP 2011 to apply the building envelope controls based on the scale of the buildings. In expressing this opinion, it is clear that Mr McDonald accepts that a flexible approach to utilising the building envelope controls can be taken. 7. Mr Kennan's evidence is that the requirements of the SEPP ARH also contribute to the character of the local area. Further, his view is that, to the extent that the building envelope controls rely on the Apartment Design Guide (ADG), those controls do not apply to the consideration of an application for a boarding house by virtue of cls 4(4) and 6A of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development ("SEPP 65"). 8. Mr Kennan's opinion is that, having regard to the fact that consolidation of 15 Cross Street with the adjoining 17 Cross Street is not possible, and there is little, if any, likelihood that there would be a consolidation of 15 Cross Street with 11-13 Cross Street, 15 Cross Street must be treated as a single development lot. As a result of its size, Mr Kennan says that there is no potential for development as a residential flat building and therefore the highest development potential for 15 Cross Street is for a boarding house. In his opinion, the SEPP ARH contains a number of development controls applying to boarding houses, those controls having been formulated to give guidance as to the desired character of boarding house development. He says that the current proposal meets all of the controls contained within SEPP ARH and, as such, is a form of development which is envisaged to form part of the desired future character of the area. 9. Mr Kennan's opinion is also that, given the diversity of buildings and roof forms in the local area, the proposed building will sit in harmony with the existing and future character of the locality. In response to Mr McDonald's evidence regarding the flexibility of the building envelope controls, Mr Kennan points to the fact that the proposed building is well within the height control and the FSR control for the site. The current character of the local area 1. I accept that the local area is characterised by a wide range of residential dwelling types ranging from modest single storey detached dwelling houses to contemporary multi-storey residential flat buildings. An essential element of the existing built form within the area, for both residential flat buildings and dwelling houses, is that it is broken by articulation and/or generous setbacks. I accept the submission made by the Council that the current built form has a sense of horizontality, with an articulation of facades. Many of the residential flat buildings have partial upper storeys. Even where a contemporary multi-storey residential flat building has vertical bulk elements, they form part of the articulation of the built form. 2. The existing roof forms in the visual catchment, although varied in form, are also articulated so as to reduce their appearance on the streetscape and to minimise the bulk and scale of the buildings. The future desired character of the local area 1. Firstly, I do not accept Mr Kennan's position that the fact that the building envelope controls refer to the ADG means that they hold no weight in considering the application or the desired future character. On the contrary, the building envelope controls are directly relevant to the future character of the area. The fact that the controls are adopted from the ADG reflects that the PDCP 2011 seeks to apply building envelope controls consistently across the built form of the locality, with the requirement that the applicable controls for boarding houses reflect the controls that apply to the anticipated predominant residential form in the zone, which for the subject site are residential flat buildings. I accept Mr McDonald's evidence in this regard. That is, in order to be compatible with the future character of the local R4 area, the boarding house must reflect the controls that apply to the predominant residential form in the zone, which are residential flat buildings. However, as acknowledged by Mr McDonald, there is some flexibility in utilising those building envelope controls and I accept that, given that the site needs to be considered as one development lot, some flexibility is appropriate. 2. Further, cls 4(4) and 6A of SEPP 65, relied upon by Mr Kennan, are not relevant. It is accepted that SEPP 65 does not apply to boarding houses. However, that SEPP 65 does not apply does not mean that a development control plan cannot use the provisions of the ADG to establish building envelope controls for boarding houses. As outlined above, in the PDCP 2011 this is done for the purpose of achieving consistency with other built form, where RFBs are likely to be the predominant residential form. 3. Secondly, I do not accept that the SEPP ARH has any role to play in determining the desired future character of the locality. The SEPP ARH is a state-wide policy for the provision of affordable housing (cl 3(a)). In relation to boarding houses, it provides some minimum non-discretionary standards that must be met (cl 30), as well as some "must not refuse" grounds that might have otherwise been used by consent authorities to refuse the application (cl 29). It also requires that the consent authority consider compatibility with the local area (cl 30A), but does not set out a framework of objectives, standards and design principles for local areas, as the PLEP 2011 and PDCP 2011 do. The mere fact that there is compliance with the standards in cls 29 and 30 does not mean that the proposal is compatible with the local area in accordance with cl 30A. 4. I consider that the standards of the PLEP 2011 and the design principles of the PDCP 2011 establish the desired future character of the area. This includes that the roof form should minimise the appearance of bulk and scale of the building (P.2 of section 3.2.3), in addition to the building envelope controls discussed above. Compatibility with the current and future character of the local area 1. In my view, the non-compliance with the side setbacks and minimum frontage is not sufficient, of itself, to establish a lack of compatibility with the future desired character. As acknowledged by Mr McDonald, a flexible approach to the building envelope controls is required to determine the appropriate size of a boarding house on the site. In that respect, the setbacks of 3.5m reflect the smaller frontage and the fact that the site needs to be treated as one development lot. 2. Notwithstanding this, I accept the evidence of Mr McDonald that the largely unbroken, unarticulated and flat bulk of the southern façade is not reflective of the character of the local area, which is comprised of built form with articulation and/or generous setbacks. The unbroken southern façade is treated with design features only, and its unarticulated form is uncharacteristic of the local area. Similarly, the verticality of the front façade is emphasised by the lack of building articulation, with the only articulation provided through the ground level, basement entrance, front windows and roof. What results is a built form that comprises unarticulated facades presenting to the street in a narrow, long and vertical style that is not characteristic of the current local area or envisaged in the future desired character of the local area, which requires a significantly larger frontage for a building of this height. The 3.5m side setback to the south accentuates the bulk of the southern façade and the vertical nature of the built form. The result is a built form that is so uncharacteristic as to be incompatible with both the current local area and its desired future character. 3. I accept that the proposed roof form contributes to this incompatibility. Both the current built form in the visual catchment, and the controls in the PDCP 2011, create a local area with roof forms that have or are required in future to have elements or articulation on the front elevation to reduce the appearance of the bulk of the roof form. No such elements or articulation are provided in the front façade of the pitched roof proposed in the design of the building. 4. I am therefore of the view that the proposal should be refused on the basis that it is not compatible with the character of the local area. Overshadowing and visual amenity 1. Objectives O3 and O7 of section 5.1 of PDCP 2011 provide as follows: "O.3 Minimise the potential adverse impacts of boarding houses on adjoining properties and the wider locality by introducing effective planning, design and on-going management controls. … O.7 Ensure that all new boarding houses are compatible with the scale and character of the surrounding built form." 1. Design principle P6 requires that the building be designed and sited to minimise the extent of shadows that it casts on the private open spaces and habitable rooms of adjoining development. It provides as follows: "P.6 Development is to be designed and sited to minimise the extent of shadows that it casts on: • Private and communal open space within the development; • Private and communal open space of adjoining dwellings; • Public open space such as bushland reserves and parkland; • Solar collectors of adjoining development; and • Habitable rooms within the development and in adjoining developments." 1. In providing the background to this principle, the PDCP 2011 provides within section 5.1.4 that for site planning: "As many boarding houses occur as infill development in established areas, a sympathetic relationship with adjoining development is critical to their long-term success. A site analysis is required to establish the site context and should be reflected in the design, addressing the constraints and opportunities of the site and its context." 1. The Council says that the proposal offends design principle P6 by causing the overshadowing of both the private open spaces and windows to habitable rooms of the adjoining dwelling at 17 Cross Street. The Council also contends that the inadequate visual articulation and the unarticulated southern façade will appear as a predominantly sheer wall when viewed from 17 Cross Street, and will dominate the visual outlook for the neighbouring properties to the south. 2. In support of the Council's position, Mr McDonald's evidence is that due to the building not complying with the side setback control of 4.5m to the southern boundary, the southern edge of the top of the building casts the shadow, with a resultant greater impact to the south than a building complying with the PDCP 2011 envelope controls for boarding houses. His evidence is that the form, bulk and scale of the proposal is excessive given the significantly undersized site width, and that a reduced form, bulk and scale of development, reflective of the constrained nature of the site would result in a reduced overshadowing impact. Mr McDonald's opinion is also that the largely unbroken and flat bulk of the southern façade and extensive roof will be highly visible from the adjoining property to the south. 3. Mr Kennan's evidence is that any development on 15 Cross Street would cast shadow onto the rear open space of 17 Cross Street, and that the shadow is restricted to the morning. He is also of the opinion that there are sufficient design elements in the southern façade so as to break up its bulk, and that although the façade will be visible it does not warrant the refusal of the proposal. He is also of the opinion that there is sufficient visual privacy afforded to residents of 11-13 Cross Street and 17 Cross Street either through design elements that prevent overlooking or sufficient separation between the building and the habitable rooms of the adjoining developments. The amenity impacts of the proposal on the adjacent dwelling are unacceptable 1. Firstly, I accept the Council's submission that the proposal offends design principle P6, which requires minimising overshadowing. The development application makes no effort to design and site the building so as to minimise overshadowing of the north facing windows of the dwelling at 17 Cross Street, which are to both living areas and bedrooms. The smaller setback than that required under the PDCP 2011, together with the lack of building articulation on the southern façade, directly contribute to the overshadowing of both the north facing windows and the private open space at 17 Cross Street. Further, that the overshadowing of the private open space is limited to the morning does not render the proposal acceptable, particularly given that the private open space of 17 Cross Street is likely to be overshadowed by other development after the morning period. The result of the failure to design and site the building to minimise overshadowing is that there is an unacceptable impact on the adjoining property at 17 Cross Street, which loses sunlight throughout the day to its north facing windows and through part of the day to the private open space. 2. Secondly, I accept that the unarticulated southern façade will appear as a predominantly sheer wall when viewed from 17 Cross Street, and will dominate the visual outlook from 17 Cross Street. In doing so, the proposal does not meet the objective in O7 to ensure that it is "compatible with the scale and character of the surrounding built form". The design of the built form with an unarticulated wall that is 3.5m from the boundary is not sympathetic to the dwelling house located to the south at 17 Cross Street. Further, no assumption can be made that the future development of 17 Cross Street will be for a residential flat building given that development for the purpose of a dwelling house remains a permissible use within the zone. 3. Whilst I accept that privacy concerns have been addressed through design elements, this alone does not relieve the issues of overshadowing and visual amenity, which arise from the unarticulated wall located 3.5m from the boundary and around 10m in height. 4. As a result, I am of the view that development consent should be refused for these reasons also. Internal amenity 1. Objective O4 of section 5.1 of the PDCP 2011 states than an objective of the controls is to "ensure an acceptable level of amenity in boarding house premises to meet the needs of residents". In section 5.1.4 of the PDCP 2011, P.24 requires the provision of a communal lounge room for each floor of the building, and P.46 requires that all "boarding houses are to provide a common living area of a minimum 20m² in area, with a further 1.5m² provided per resident where resident numbers exceed 12 persons." 2. The proposal only has one communal lounge room, located on the ground floor, of 27.86m2. It is of high quality and integrated with a common open space comprising a deck, barbeque and grassed area. To meet the numerical requirements of the PDCP 2011, the proposal would need a total of 68m2 of communal living area. 3. Mr Kennan's evidence is that the additional communal lounge room space, as well as the requirement for communal lounge rooms on each level, is not necessary given the high quality communal area provided on the ground floor. He is also of the view that no additional communal area is required in circumstances where the requirements of the SEPP ARH are met for both the provision of at least one communal living room (cl 30(1)(a)) and the provision of adequate private open space (cl 29(2)(d)). Mr Elcheikh also submits that a high level of amenity is provided in each room, it being a "new generation" boarding house, which avoids the need to provide communal living space throughout the building. 4. Mr McDonald's opinion is that the requirements of the PDCP 2011 are distinct from those of the SEPP ARH. He says that whilst under the SEPP ARH the provision of 20m2 private open space for boarders is a standard that cannot be used to refuse consent, the PDCP 2011 seeks to build upon this minimum standard and includes a modest requirement of an additional 1.5m² per person, above the 20m2, for a facility of greater than 12 people, as well as the distribution of communal space across each level of the building. In his opinion this standard enhances the level of internal amenity to boarders occupying individual rooms. 5. I accept that the standards of the PDCP 2011, insofar as they relate to the provision of common living areas, apply as an additional layer of controls over the standard set out in cl 30(1)(a) for there to be at least one communal living room. I am of the view that the standard for common living areas, or communal living rooms, is distinct from the "must not refuse" requirement established for private open space in cl 29(2)(d). Just because a proposed boarding house meets the minimum for private open space in cl 29(2)(d) does not mean that it cannot be refused for failure to provide adequate communal living areas, as the two requirements are distinct. Further, the standard for a least one communal open space is a minimum standard and in conducting an assessment pursuant to s 4.15(1)(a)(iii) of the EPA Act, I am required to consider the standards in the relevant development control plan. 6. I am of the view that the high quality communal living area and private open space provided on the ground floor, together with the high level of amenity of the boarding rooms, is not sufficient to provide the internal amenity sought through the requirement for 68m2 of total communal living area dispersed through living areas on each floor. Without anything additional, the congregation of residents indoors will be limited to either within the boarding rooms or in the 27.86m2 provided. In my view, this is not sufficient for a boarding house of 44 residents. Whilst strict compliance may not be necessary, something additional is required to provide the amenity that is sought through the controls. This also warrants refusal of the application. Other contentions 1. A number of the other contentions, summarised earlier (see paragraph [4]), were the subject of evidence and submissions at the hearing. Having considered that the proposal should be refused for the reasons expressed, I need not make any findings on those remaining contentions. The present application before the Court must therefore be refused. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. The development application, numbered 540/2016, for the demolition of an existing single storey dwelling and the construction of a 5-storey boarding house at 15 Cross Street, Guildford, is refused. 3. The exhibits are returned, except for exhibits A and B. _______________________ Commissioner Gray ********** 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: 05 April 2018