Land and Environment Court New South Wales Medium Neutral Citation: Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 Hearing dates: 28-29 May 2018 Date of orders: 14 June 2018 Decision date: 14 June 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for the demolition of existing structures and the construction of a four storey residential flat building comprising 10 units and basement car parking at 48 Jacobs Street, Bankstown (Lot B DP 336854), subject to the conditions of consent in Annexure A and pursuant to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009, with dwelling numbers 3, 5, 8 and 10 to be dedicated as affordable rental housing for a period of 10 years following the issue of the occupation certificate. (3) The exhibits are returned, except for exhibits 6, A, B, D, E and H. Catchwords: APPEAL – residential flat building – minimum width at front building line – whether inconsistent with provisions of the SEPP for affordable rental housing – whether cl 4.6 request should be allowed – compatibility with character of local area – setbacks – overshadowing – privacy – suitability of site – precedent Legislation Cited: Bankstown Development Control Plan 2015 Bankstown Local Environment Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Cases Cited: Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Louden Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) Solicitors: Korn MacDougall Legal (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2017/188317 Publication restriction: No Judgment 1. COMMISSIONER: Jacobs Street, in Bankstown, runs downhill from North to South, where it intersects with Rickard Road and with the central shopping area of Bankstown. Its full length spans three different planning zones under the Bankstown Local Environment Plan 2015 ("BLEP 2015"), from R2 Low Density Residential in the North, to R4 High Density Residential in its mid-section, and to B4 Mixed Use in the south. At 48 Jacobs Street, in the R4 High Density Residential zone, Louden Pty Ltd ("Louden") seeks to demolish an existing dwelling house and construct a four storey residential flat building containing 10 units and basement car parking. The application is made under the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH"), and four units are proposed to be dedicated as affordable rental housing. The original development application was lodged on 20 March 2017, and refused by Canterbury-Bankstown Council ("the Council") on 24 April 2017. Louden appeals against that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 2. The Council opposes the grant of development consent on a number of grounds, which can be summarised as follows: * The width of the subject site at the front building line is inadequate to accommodate a residential flat building in that it does not comply with the development standard for the minimum width in cl 4.1B(2)(b) of the BLEP 2015, and the request to vary the standard should not be granted (contention 1); * The design of the proposed development is not compatible with the character of the area, as required by cl 16A of the SEPP ARH (contention 2); * The proposed building separation distances and setbacks are inadequate as they do not comply with the requirements of the Apartment Design Guide relating to building separation and visual privacy or with the requirements of the Bankstown Development Control Plan 2015 ("BDCP 2015") (contentions 3 and 4); * The proposed development does not minimise the overshadowing of neighbouring properties (contention 5); * The proposed development is not consistent with the design quality principles concerning context and neighbourhood character, built form and scale, and amenity pursuant to the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (contention 6); * For the reasons set out above, the site is not suitable for the proposed development (contention 7) and is not in the public interest (contention 9); and * The proposed development would establish an undesirable precedent for similar inappropriate development in the area (contention 8). 1. At the commencement of the hearing, Louden sought and obtained leave to amend the development application by relying on amended plans, which reduced the impact of the overshadowing of units in the adjacent residential development to the south. 2. In considering the appeal, the Court re-exercises the functions of the Council in determining the application for development consent (s 39 of the Land and Environment Court Act 1979 ('the Court Act')). The Court's role is therefore to assess and determine the application on its merits, based on the evidence in the proceedings and in accordance with s 4.15 of the EPA Act. Whilst there was much discussion regarding whether multi-dwelling housing was a better development for the site, it being one that could comply with both the SEPP ARH and the minimum width control in the BLEP 2015, my role is to consider the merits of the present development application for the construction of a residential flat building. The discussion and evidence concerning multi-dwelling housing is considered below only in relation to the question of the suitability of the site for the proposed development. 3. For the reasons expressed below, I have determined that it is appropriate to grant development consent for the proposal. I am satisfied that the power under cl 4.6(2) ought to be exercised to grant consent even though the development would contravene the development standard for the minimum width at the front building line, and that the development is consistent with the objectives of the zone and of the standard for the minimum width. I am similarly satisfied that the design of the development is compatible with the character of the local area, affords sufficient visual privacy to the adjoining neighbours, and has been skilfully designed with good articulation and varied setbacks to minimise the impact of overshadowing on adjoining neighbours to the south. For the reasons set out below, I find that the site is suitable for the development as proposed and that, due to the sympathetic design that accommodates the amenity of adjoining neighbours and achieves compatibility in the streetscape, it does not create an undesirable precedent. The site and the locality 1. The site is legally identified as Lot B DP 336854, and is known as 48 Jacobs Street, Bankstown. It has an east to west orientation with an area of 636.60m2, frontage of 20.115m to Jacobs Street and an average site depth of 31.65m. It has a fall from the north-western boundary toward the south eastern boundary of around 1.5m. 2. The site is currently occupied by a single storey dwelling house, and an outbuilding with attached awning and shed. Two existing street trees are located in the centre of Council's nature strip, forward of the subject site. Adjacent to the site are older style three-storey residential flat buildings to the rear and to the south, and a large dual occupancy of modern construction to its north. 3. The built form of the immediate locality varies between older style single storey residential dwellings to older style three storey residential flat buildings, which are interspersed with more recently constructed large dual occupancies and residential dwellings of up to three-storeys. Planning controls 1. The site is located within the R4 High Density Residential zone. The zone objectives, which are required to be considered in determining a development application, are as follows: "• 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." 1. Residential flat buildings are a permissible use with development consent within the R4 High Density Residential zone, as is multi-dwelling housing. Dual occupancies are a prohibited use. 2. The application is lodged pursuant to the SEPP ARH. The aims of the SEPP ARH are set out in cl 3, and include at (b) the objective "to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards". 3. Part 2 Division 1 of the SEPP ARH, which relates to in-fill affordable housing, applies to the development. Clause 10 of the SEPP ARH provides that: "10 Development to which Division applies (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that 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 under the Heritage Act 1977. (2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area. …" 1. The parties agree that the site's location meets the definition of an accessible area. As a result of the application of Part 2 Division 1, cl 13 of the SEPP ARH allows an increase in the maximum FSR that applies to the proposal by the percentage of the gross floor area of the development that is used for affordable housing. Based on dwellings 3, 5, 8 and 10 being dedicated to affordable housing, this means that 32% of the gross floor area is being provided as affordable housing and therefore increases the allowable FSR from 1:1 to 1.32:1, with which the proposal complies with a FSR of 1.08:1. 2. At cl 14 of the SEPP ARH, a number of standards are established that cannot be used to refuse consent. The first of those standards relates to site area, the result of which is that a consent authority cannot refuse consent based on site area if the site area is at least 450m2. Clause 14(1), as relevant, provides: "(1) Site and solar access requirements A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: … (b) site area if the site area on which it is proposed to carry out the development is at least 450 square metres, …" 1. Clause 14 goes on to set out other standards which cannot be used to refuse consent if a specified minimum is met. Those standards concern landscaped area, deep soil zone, solar access for the dwellings, the provision of on-site parking, and dwelling size. The proposal meets all of the specified minimums for each of those standards, including the site area of 450m2, and therefore cl 14 prevents me from refusing the application on any of those grounds. 2. Clause 16A 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." 3. Where an inconsistency arises between the SEPP ARH and another environmental planning instrument, such as the BLEP 2015, the SEPP ARH prevails. Specifically, cl 8 of the SEPP ARH provides as follows: "8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency." 1. At cl 4.1B(2), the BLEP 2015 establishes minimum development standards for both lot size and the width of the lot at the front building line. The clause requires, in the R4 High Density Residential zone, that the consent authority must not consent to a residential flat building unless the area of the lot is equal to or greater than 1500m2, and the width of the lot at the front building line is equal to or greater than 30 metres. Specifically, it provides: "(2) Despite any other provision of this Plan, development consent must not be granted to development on a lot in a zone shown in Column 2 of the table to this clause for a purpose shown in Column 1 of the table opposite that zone unless: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the table, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that purpose and shown opposite in Column 4 of the table. Column 1 Column 2 Column 3 Column 4 … … … … Residential flat buildings Zone R4 High Density Residential 1,500 square metres 30 metres … … … … 1. Louden and the Council both agree that there is an inconsistency between the development standard for the area of the lot in cl 4.1(2)(a) the BLEP 2015 and the provision preventing refusal in cl 14(1)(b) of the SEPP ARH if the lot size is 450m2 or greater. As such, the provisions of the SEPP ARH prevail with respect to the minimum lot size and cl 4.1B(2)(a) is of no effect. 2. Louden also submits that there is an incongruity between the provisions of cl 14(1)(b) of the SEPP ARH regarding the lot size and the minimum width of the lot in cl 4.1B(2)(b) of the BLEP 2015 insofar as those clauses apply to a residential flat building in the R4 zone, and that this incongruity creates an inconsistency that causes the SEPP ARH to prevail and cl 4.1B(2)(b) to have no effect. The question of whether such an inconsistency exists is considered in my reasons below. 3. Notwithstanding the position of Louden with respect to the inconsistency between the minimum lot size in the SEPP ARH and the minimum width of the lot in cl 4.1B(2)(b) of the BLEP 2015, Louden has lodged a cl 4.6 request. Clause 4.6 allows a variation to development standards to be permitted, and provides as follows: "4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. …" 1. SEPP 65 also applies to the application, and provides at cl 28(2) that: "(2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide." 1. Clause 30(2) of SEPP 65 provides: "(2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria." 1. The Apartment Design Guide ("ADG") is therefore relevant in the context of clauses 28 and 30. 2. The BDCP 2015 also applies and establishes the controls for the setbacks for the site, which are considered below. Evidence 1. Expert opinion evidence was given on the town planning issues by Mr Jonathon Wood, engaged by Louden, and Mr Ryan Bevitt, an employee of the Council. 2. The hearing commenced with a site view, at which time a number of residents attended and gave evidence or made submissions. Their concerns can be summarised as follows: * The likely occupants will be renters, who may cause problems with disruptive behaviour and rubbish left on the kerb, * The entrance to the building is not appropriately located, as it is located toward the rear of the building and adjacent to the rear balcony of number 50, * There is likely to be problems with the fencing, as demonstrated by the collapse of other fences in the area, * There is insufficient parking on the street, and the development of 10 residential units will exacerbate this problem, and the provision of on-site parking is inadequate, * The four-storey nature of the proposal is out of character with the rest of the street, and will create a precedent that could cause future developments of an undesirable character, * The site isn't sufficiently large to build a residential flat building, and * The density sought in the proposed development is too high as compared to the current density. 1. Ms Mickovska, the resident and owner of the adjacent property at 50 Jacobs Street, also spoke of past attempts that had been made to sell her property together with the neighbouring properties. Her written submission demonstrated that that sale had not eventuated due to differing asking prices between the neighbours. At the site view, she indicated that she might sell in the future if circumstances permit, but her current circumstances meant that she is not presently considering selling her property. 2. With respect to the residents' concerns regarding the adequacy of on-site parking, the proposal provides 9 car spaces, which is in excess of the requirement in cl 14(2)(a)(ii) of the SEPP ARH that "at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom" and "at least 1 parking space is provided for each dwelling containing 2 bedrooms". As a result and pursuant to cl 14(2) of the SEPP ARH I cannot refuse consent on the basis of parking given that minimum requirement is met. 3. The remainder of the residents' concerns are considered below in the context of issues raised by the Council. Is there an inconsistency with the control for the minimum width at the front building? 1. Louden submits that the requirement in cl 4.1B(2)(b) of the BLEP 2015 for there to be a 30m minimum width at the front building line for residential flat buildings in the R4 zone is incongruous with cl 14(1)(b) of the SEPP ARH, which precludes the refusal of development consent if the lot size is greater than 450m2. Louden submits, through its counsel, that whilst this doesn't create inconsistency between the provisions as a whole, it does create an inconsistency insofar as cl 4.1B(2)(b) requires a 30m frontage for residential flat buildings in the R4 zone. 2. That submission is made on two primary grounds. Firstly, Louden says that in cl 4.1B of the BLEP 2015 the lot width is related to lot size, such that they need to be taken into account as a whole and cannot be separated. Therefore, Louden submits that inconsistency in the standard for lot size between the SEPP ARH and the BLEP 2015 creates an inconsistency between the SEPP ARH and the BLEP 2015 with respect to the minimum width. Secondly, Louden submits that to maintain the 30m standard with respect to lot width for a residential flat building only requiring a minimum lot size of 450m2 is so onerous that it is inconsistent. In support of this submission, Louden relies on the evidence of Mr Wood that a site of 15m depth would not be sufficient for a residential flat building, and the evidence of both town planners that they are not aware of any sites in the Bankstown area of 30m width and 15m depth. Louden refers to decision of the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324, in which Kirby P found that "there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument." This test was confirmed in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164, in which the majority of the Court of Appeal applied this test and determined that a provision regarding a building height plane was inconsistent with a provision regarding building height and massing. Louden submits that a "lack of accordance or harmony" occurs with the present provisions as they apply to residential flat buildings, and that they are therefore inconsistent. 3. The Council submits that no such inconsistency arises, and that the extent of the inconsistency is only insofar as it relates to lot size. The Council says that had the SEPP ARH intended to override development standards for the minimum lot width, it would have had a provision similar to cl 25 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, which specifies that "the development may be located on a site of any size and have any length of street frontage or any allotment depth." The Council submits that cl 14(1)(b) of the SEPP ARH clearly only relates to lot size, and is capable of being reconciled with the minimum width contained in cl 4.1B(2)(b), such as with multi-dwelling housing. The provisions are not inconsistent 1. I accept that with a lot size of close to 450m2, achieving a frontage of 30m for a residential flat building is unlikely and/or onerous. To expect to achieve such a frontage might be unreasonable in light of the "do not refuse" provision preventing refusal of the development based on lot size if the lot size is 450m2. However, I do not accept that because a standard that is unlikely to be achieved, or onerous to achieve, if cl 14(1)(b) is met, it falls within the ordinary meaning of creating an "inconsistency". In that sense, the present provisions can be distinguished from those in Castle Constructions v North Sydney Council, in which their Honours were concerned with the inconsistency of two different provisions concerning the applicable height control. Whilst inherent incongruity in two different applicable provisions relating to the same control (e.g. height) may create an inconsistency, in my view incongruity due to a difficulty in achieving two different standards does not. 2. Further, whilst they are proportionally related, a standard with respect to the minimum width at the front building line is different to a standard with respect to lot size. In this respect, I accept the submission of the Council that cl 14(1)(b) of the SEPP ARH and cl 4.1B(2)(b) are capable of being reconciled, albeit it may be difficult to do so in the context of a residential flat building. For those reasons, and because cl 4.6 of the BLEP 2015 applies to allow consent to be granted notwithstanding a breach of cl 4.1B(2)(b), I do not accept that an inconsistency arises that causes cl 14(1)(b) of the SEPP ARH to prevail over cl 4.1B(2)(b). Had cl 4.6 not applied to cl 4.1B(2)(b), I may have reached a different view. Therefore, the development standard for the minimum width at the front building line of 30 metres applies to the application, but cl 4.6 allows consent to be granted notwithstanding non-compliance with this standard. Should the clause 4.6 request be granted? 1. The proposal breaches the development standard for the minimum width at the front building line by proposing a residential flat building on a site that only has a frontage of 20.11m. Clause 4.6 of the CLEP 2012 allows development standards to be applied flexibly in certain circumstances. For there to be power to grant development consent for a development that contravenes a development standard, I must be satisfied that: * The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), * The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)), * The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), and * The written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 1. Clause 4.6(4)(a)(ii) presumes that if the proposed development is consistent with the objectives of the zone and of the standard, then it is in the public interest. I also note that nothing in cl 4.6 requires the consistency with the objectives to be established in or by the written request. 2. The objectives of the development standard for the minimum width at the front building line are: "(a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to ensure that multi dwelling housing and boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development, (c) to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas, (d) to minimise any likely adverse impact of the development on the amenity of the area, (e) where an existing lot is inadequate in terms of its area or width—to require the consolidation of 2 or more lots." The clause 4.6 request 1. Louden's written request sets out the following justification for the non-compliance of the proposal with the standard for the minimum width at the front building line: * The adoption of a 450m2 lot size leads to an incongruous situation whereby a 30m frontage applies to a development on a small lot, and to achieve compliance with 450m2 and 30m frontage would only require a 15m site depth, which is not sufficient to accommodate a residential flat building. * Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as the underlying objectives of the control are achieved through providing adequate private open space, landscaped area and deep soil planting, parking and access and by accommodating setbacks consistent with the ADG through the adoption of raised sill windows where a 6m building separation is not achieved. * The size of the site permits sufficient separation of the building from neighbouring land, and allows there to be negligible impacts in terms of privacy and overshadowing to adjoining properties. * The proposal allows the site to develop to its full zoning potential. * The proposal complies with the key planning controls and complies with the minimum lot size contained in the SEPP ARH. * The variation to the allotment width enables development of the site pursuant to the SEPP ARH, which strict adherence to the control would prevent. 1. This was also supported by the oral evidence of Mr Wood, who opined, in relation to objective (e) of the standard, that the design of the proposal demonstrates that the lot is adequate in size and width to accommodate a residential flat building, and therefore consolidation is not required. His evidence is that the side setbacks are sufficient to minimise overshadowing and protect privacy. Mr Wood also questioned whether it would be economically viable to consider the adjacent lot as a development lot, given the recent construction of the dual occupancy. The Council's response to the request 1. The Council opposes the cl 4.6 request and submits that the Court could not be satisfied that the proposal is consistent with objectives of the standard, or that the request raises sufficient environmental planning grounds to justify a departure from the standard. In particular, the Council submits that the proposal is not consistent with the objective to ensure that "lots for residential accommodation are of sufficient size to accommodate… setbacks to adjoining residential land". The Council says that the applicable setback controls require that there be a minimum 4.5m side setback and an average of 7.2m side setback, and that the ADG requires a 6m setback to the side boundaries. The Council says that this is consistent with the existing residential flat buildings in Jacobs Street, which generally have side setbacks of 6m with limited exceptions. As the proposal only provides for setbacks of 3m to the north, and a minimum of 3m setback to the south, the Council submits that the proposal is antipathetic to the objective to accommodate setbacks. 2. The Council also submits that there is no evidence to enable the Court to be satisfied that objective (e) is met, or that the site doesn't require consolidation with the adjacent site owned by Ms Mickovska. The Council says that no evidence has been provided of reasonable attempts made to consolidate the sites. The exception to the development standard should be allowed 1. I am satisfied that the cl 4.6 request should be allowed, and that there is therefore power to grant consent pursuant to cl 4.6(2) even though the development would contravene the development standard. 2. Firstly, I accept that the proposal is consistent with the zone objectives, and in particular with the objective to provide for the housing needs of the community within a high density residential environment. Council raises no issue in this regard. The proposal for the residential flat building with some affordable housing is consistent with that objective. The proposal for residential units is consistent with the high density nature of the zone, and also meets the housing needs both through standard residential units and affordable residential units. 3. Secondly, I accept that the proposal is consistent with the objectives of the standard. Objective (a) refers only to the lot size, and arguably does not apply to the standard for the minimum width at the building frontage. Notwithstanding this, consistent with objective (a) to "ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas", each of the SEPP ARH minimum standards with respect to landscaping, deep soil zones and parking are met. The basement is sufficiently wide to allow for vehicle manoeuvring and the dwellings also meet the private open space requirements of the ADG. Further, I accept the evidence of Mr Wood that the site is sufficient size and width to allow setbacks that are adequate to protect visual privacy and minimise overshadowing. This is also consistent with objective (d) to minimise "any likely adverse impact of the development on the amenity of the area", with respect to which I am of the view that the amenity is also maintained by the landscaping proposed in the front and side setbacks. 4. I also accept the evidence of Mr Wood that the site is of sufficient width and depth to accommodate a residential flat building and that therefore consolidation in accordance with objective (e) is not required. In any event, the Council did not contend in its contentions or its evidence that consolidation was required. 5. Thirdly, I'm satisfied that the request sufficiently establishes that compliance is unreasonable in circumstances where the SEPP ARH allows a minimum lot size of 450m2 and cl 14 of the SEPP ARH precludes refusal on the basis of lot size if that minimum is achieved. Further, I am satisfied that the request establishes that it is unnecessary to comply with the control for the minimum width at the front building line in circumstances where the building has been adequately designed to minimise its impacts on adjacent properties and the objectives of the standard are otherwise met. 6. Fourthly, I'm satisfied that the request establishes sufficient environmental planning grounds to justify the departure from the standard. The request clearly sets out how the proposal is consistent with the aims and provisions of the SEPP ARH, and that maintenance of the standard creates an incongruous situation whereby to achieve compliance with 450m2 and 30m frontage would only require a 15m site depth, which is not sufficient to accommodate a residential flat building. The request therefore sets out that to allow the delivery of a residential flat building on a site of 636.6m2 and a frontage of 20.11m in the zone is consistent with the desired character of the locality, enables the delivery of residential units in proximity to the Bankstown CBD, and facilitates delivery of affordable rental housing in an accessible area. 7. I am therefore satisfied that there is power to grant consent pursuant to cl 4.6(2) even though the development would contravene the development standard. Whether the design of the development is compatible with the character of the local area 1. The Council contends that, in taking into consideration whether the design of the development is compatible with the character of the local area pursuant to cl 16A of the SEPP ARH, the overall scale of the building and its design is not compatible with the character of the local area. 2. In considering the character of the local area, Mr Wood and Mr Bevitt consider that the local area is comprised of the visual catchment viewed from Jacobs Street in close proximity to the site. This comprises both sides of Jacobs Street between Heath Street to the north and RM Campbell Reserve to the south, including the visual catchment toward Conway Street to the rear of the site. The evidence 1. Mr Wood's evidence is that the western side of Jacobs Street contains a variety of two storey dual occupancies, 1-2 storey dwelling houses, a child care centre and a residential flat building to the south of the site. His evidence is that on the eastern side, there are series of older 3-storey walk up flats of brick construction and pitched roof forms, as well as a number of 1-2 storey dwelling houses. He opines, therefore, that the character of Jacobs Street is mixed with a variety of building typologies and similar variety in building heights, setbacks and landscaping. 2. Relying on the planning principle concerning compatibility in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, in which Roseth SC stated that 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" (at [26]), Mr Wood opines that the proposal is compatible with each of these aspects. In particular, his evidence is: * In relation to building height, the proposal will sit comfortably in the streetscape given that the overall building height is comparable to the adjoining development to the south, and is compliant with the maximum height limit in the BLEP 2015, * In relation to landscaping, the proposal complies with the landscaped area requirement, including the requirement for 45% of the front setback to be landscaped as required by cl 8.15 of Part B of the BDCP 2015. The landscaped front setback therefore responds well to the existing context and the desired future character expressed in the BDCP 2015, and * In relation to setbacks, the size of the setbacks and distances of separation vary considerably in the area, with as little as 1m side setbacks provided to a number of 2 storey dwellings and dual occupancies, greater side setbacks to some existing older single storey dwellings, side setbacks of up to 6m for the residential flat buildings opposite the site on Jacobs Street, and a landscaped 4.5m side setback to the adjoining 4 storey residential flat building on the common boundary with the subject site, with a smaller setback of less than 900mm on the southern side of the adjoining residential flat building. In this context, the proposal provides setbacks that are compatible with the existing varied character by providing a setback of 3m to the north, and a varied building separation relative to the adjoining residential flat building to the south of 3m- 6m setback at ground and first floor with a much greater setback of 4.5m-9.7m at the 3rd and 4th storey of the building. 1. Mr Wood has also undertaken an analysis of the building width relative to the allotment width in other high density building forms across the local area. In doing so, he found that the relationship between the building length and allotment width expressed in numerical terms for those buildings ranged between 62.5% and 82.5%. His evidence is that the current proposal had a relationship between building length and allotment width expressed in numerical terms of being 55-70% at the first and second level and 40-62.5% at the upper levels. 2. He therefore opines that the proposed development demonstrates a suitable relationship between the allotment frontage and the building width and that the scale of the building and its setbacks, landscaping and relationship to adjoining properties is satisfactory and therefore compatible with the existing character of the local area. 3. In contrast, Mr Bevitt's evidence is that the local character of the area is established by allotments between 7 and 25 metres in width consisting of dwelling houses and dual occupancies, whereas allotments of 30m or more generally consist of residential flat buildings. Mr Bevitt says that the residential flat buildings are generally characterised by side setbacks of approximately 6m or more, with visual breaks between buildings, repetition in the streetscape and accommodate established canopy trees. Mr Bevitt's opinion is that because the present application does not reflect the characteristics of other residential flat buildings in the local area, it is not compatible with the character of the local area. Further, Mr Bevitt excludes from his consideration of character and compatibility the building typology that is likely to be turned over into higher density in the future due to the zoning and controls that apply to the area. The proposal is compatible with the character of the local area 1. I accept Mr Wood's analysis of the character of the local area and his evidence that the proposal is compatible with that character. Firstly, the character of the local area requires consideration of all existing building forms in their context. Mr Bevitt's analysis of what characteristics are typical of the local area is unreasonably constrained to the existing residential flat buildings. To do so is contrary to both the meaning of "local area", which comprises all building typologies, and is also contrary to the general principle that determining the character of the local area incorporates both the existing character and the desire future character. As such, I consider that the streetscape has diversity in building forms and I accept that there is no well-defined existing character as it relates to building forms. Given this diversity, none of the existing buildings can be identified as being out of character and therefore disregarded in considering the character. Further, it is apposite to consider the existing building typologies of recent construction, such as recently constructed dwelling houses and dual occupancies, as they form part of the existing local character and will likely do so for some time before they are turned over in favour of higher density development. 2. Secondly, I accept that the side setbacks and scale of the proposed building are compatible with the character of the local area. The fact that the proposed development differs in its side setbacks and frontage width as compared to existing residential flat buildings does not, in itself, result in incompatibility. As discussed by Roseth SC in Project Venture Developments v Pittwater Council, (at [22]) "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." I accept the evidence that the side setbacks are not consistent across the local area, and in fact there is much variation in side setbacks. The existing side setbacks vary with the form of building typology, with newer dwellings and dual occupancies having smaller frontages and setbacks as small as 1m, and the residential flat buildings on larger frontages with side setbacks varying from around 1m to 6m, but generally of 4.5m and larger. Given that context, it is entirely compatible with the local area that a building that has a narrower frontage than the existing residential flat buildings has smaller side setbacks. In that respect, I accept the analysis of Mr Wood expressing the relationship of building width to allotment width in numerical terms and consider that in light of that analysis the proposed development demonstrates a relationship between allotment frontage and building width, and therefore side setbacks, that is compatible with the existing character of the local area. 3. Thirdly, the quantity of landscaping in the front and side setbacks varies across the local area. As a result, I do not accept the evidence of Mr Bevitt that an essential element of the local area is setbacks that accommodate established canopy trees. A number of the newly constructed dwellings and dual occupancies have limited landscaping and setbacks that do not accommodate deep soil landscaping at the front or side. This is in contrast to the older residential flat buildings that have generous landscaping and canopy trees. The development proposes landscaping that falls midway in the range already present in the streetscape, and provides greater canopy trees in the front setback than the dwellings and dual occupancies to its north. It therefore provides sufficient landscaping to render it compatible with the character of the local area as it relates to landscaping. 4. Fourthly, I accept the evidence of Mr Wood that the development will sit comfortably with the streetscape as its height is comparable to the adjoining development. The building is highly articulated with greater setbacks at the upper levels, allowing it to effectively transition between the residential flat building to the south and the large dual occupancy to the north. 5. For these reasons, I am satisfied that the design and scale of the built form proposed on site is compatible with the character of the local area. Is the proposal acceptable in light of the building separation, setbacks and privacy impacts? 1. The Council contends that the proposed building separation distances and setbacks are inadequate as they do not comply with the requirements of the ADG or with the requirements of the BDCP 2015. The relevant planning guidance and controls 1. Objective 3F-1 of the ADG is to ensure that "[a]dequate building separation distances are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy." To achieve this objective, the design criteria states: 1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: 1. The design guidance also states that "[n]o separation is required between blank walls." 2. The BDCP 2015 also sets out controls with respect to boundary setbacks. At Part B1, Section 9, cl 9.5 establishes that the minimum setback for the building wall to the primary frontage is 6m. Clause 9.8 states that in relation to other setbacks: "9.8 For a building with 3 or more storeys, the minimum setback to the side and rear boundaries of the allotment is 4.5 metres provided the average setback is 0.6 multiplied by the wall height." 1. The relevant objectives of these setback controls (in Part B1 Section 9 of the BDCP 2015) are: "(a) To ensure the building form, building design and landscaping of residential flat buildings, serviced apartments and shop top housing are compatible with the suburban character of the high density residential areas. (b) To ensure the building form and building design of residential flat buildings, serviced apartments and shop top housing provide appropriate amenity to residents in terms of access to sunlight and privacy. (c) To ensure the building form and building design of residential flat buildings, serviced apartments and shop top housing do not adversely impact on the amenity of neighbouring properties in terms of visual bulk, access to sunlight and privacy." The evidence 1. Both Mr Bevitt and Mr Wood agree that the ADG is a more contemporary control and greater weight should be afforded to the ADG as it relates to consideration of the acceptability of building separation and setbacks. 2. Mr Bevitt's evidence is that the narrow lot width means that there are inadequate setbacks and building separation, which do not comply with the above design criteria and DCP controls. In cross-examination, Mr Bevitt confirmed that the only impact that this non-compliance resulted in was adverse privacy impacts for the adjoining neighbours. In identifying from which windows privacy impacts arose, Mr Bevitt identified only windows that are highlight windows. Further, Mr Bevitt says that the sill height of 1.7m for the highlight windows facing north is inadequate to protect visual privacy of the adjoining neighbours. 3. Mr Wood's evidence is that to achieve compliance with the ADG, each of the walls facing north and south could have the windows removed. His evidence is that although the bedrooms rely on other large primary windows for natural light, removing the highlight windows would result in a worse outcome for the bedrooms. His opinion is that a 1.7m sill height is sufficient to protect the visual privacy of the adjoining neighbours. Mr Wood also relied on his evidence given in relation to compatibility to establish that the scale of the building is appropriate in the streetscape. The setbacks are sufficient 1. Notwithstanding the non-compliance with the ADG building separation guidelines and the BDCP 2015 setback controls, for the following reasons I accept the evidence of Mr Wood that the setbacks and building separation from the side boundary meet the relevant objectives and are therefore sufficient. 2. Firstly, the objective of that part of the ADG that Mr Bevitt relies upon is to achieve visual privacy. I accept that if the walls facing north and south were blank they would comply with the ADG, but that provision of the highlight windows is a better outcome than having a blank wall. I accept also that the 1.7m sill height of the highlight windows is sufficient to protect visual privacy of both residents and the adjoining neighbours, given that 1.7m is above the sightline of an average person. I am therefore of the view that visual privacy is achieved and therefore objective 3F-1 of the ADG is achieved. Similarly, the visual privacy aspects of objectives (b) and (c) within Part B1 Section 9 of the BDCP 2015 are also achieved. 3. Secondly, the highlight windows are not the only source of natural light for those bedrooms. The development is cleverly designed so that each room with a highlight window also has a primary window facing either west or east. As such, there is sufficient amenity for those rooms, consistent with objective (b) of Part B1 Section 9 of the BDCP 2015. 4. Thirdly, the privacy screen to the balconies on the northern side of the development is similarly of sufficient height at 1.7m to prevent overlooking from the balcony to the adjacent dual occupancy, whilst also allowing the balcony the additional access to natural light and sunlight from the north. 5. Fourthly, for the reasons expressed earlier with respect to compatibility with the character of the local area, I accept that objective (a) of Part B1 Section 9 of the BDCP 2015 is achieved. The building form will sit comfortably within the streetscape as it meets the height control, is consistent with the storey control in the BDCP 2015, and has a building width to site width proportion consistent with or less than similar high density development in the locality. For the same reasons, and given that the proposal complies with the allowable FSR, I accept that the proposal does not result in unacceptable visual bulk, consistent with objective (c). 6. Fifthly, the Council accepts, as I do, that the encroachment of the bin enclosure room into the front setback is acceptable. Such an encroachment is consistent with other encroachments in the locality. 7. Insofar as objective (c) of Part B1, Section 9 of the BDCP 2015 concerns access to sunlight for neighbouring properties, this issue is dealt with separately below. Does the proposed development minimise the overshadowing of neighbouring properties? 1. Objective 3B-2 of the ADG requires that "[o]vershadowing of neighbouring properties is minimised during mid-winter." Similarly, the protection of neighbouring properties from adverse impacts of new development on access to sunlight forms part of objective (c) with respect to siting of the building and setbacks in Part B1, Section 9 of the BDCP 2015. 2. The experts have considered each of the 4 units on the northern side of the residential flat building to the south of the proposed development, which each have balconies and living area windows facing north to the development site. In doing so, they agree that the apartments on that side of the building retain adequate access to sunlight, except for the unit at the north western point on the ground floor, known as lot 4. Lot 4 nonetheless retains between 1hr 15min and 1.5 hours of sunlight to the living room and private open space. 3. Mr Bevitt's view is that this is not an acceptable outcome as it does not comply with the ADG. 4. On the other hand, Mr Wood's evidence is that lot 4 is a highly vulnerable unit with access to sunlight that is difficult to protect due to its orientation to the northern side boundary, it having no living room windows to the west and located at the rear of the site on the ground floor in an area that has an height control of 13m. Mr Wood's evidence is that the proposal has been skilfully designed to minimise the shadow impact to the adjoining residential flat building. Mr Wood also considered shadow diagrams that showed a multi-dwelling housing development on the site, with 3m setbacks as per the control for multi-dwelling housing, and demonstrated that such a proposal would create a worse outcome for overshadowing of the neighbouring units. 5. I accept the evidence of Mr Wood that the building has been skilfully designed and articulated to retain solar access to the four northern units of the adjoining residential flat building. It has done so by reducing the floor space at the upper levels to improve solar access across the site. I accept that the unit identified as lot 4 is highly vulnerable due to its orientation and location. In circumstances of such vulnerability, I accept that the retention of 1hr 15m to 1.5hours of sunlight to that unit is sufficient to satisfy me that the proposal has minimised its overshadowing of adjoining development. As such, it meets objective 3B-2 of the ADG and objective (c) with respect to siting of the building and setbacks in Part B1, Section 9 of the BDCP 2015. Consistency with the Design Quality Principles 1. The Council contends that, for the reasons of allotment width, character, setbacks and separation, amenity of rooms, and overshadowing impacts, the proposal does not comply with a number of the design quality principles in Schedule 1 of SEPP 65. Specifically, it says that it does not comply with Principle 1: Context and Neighbourhood Character, design quality Principle 2: Built form and scale and design quality Principle 6: Amenity for residential apartment development. 2. However, for the reasons expressed above, I am satisfied that the development has sufficient allotment width for the built form proposed, is compatible with the character of the local area, has adequate setbacks and separation, offers sufficient amenity for residents and has reduced and designed floor space to minimise overshadowing of neighbouring development. As such, I am satisfied that the proposal is consistent with the design principles in Schedule 1 of SEPP 65. Is the site suitable for the development? 1. There was some evidence from Mr Bevitt that a multi-dwelling housing was a better development for the site, it being one that could comply with both the SEPP ARH and the minimum width control in the BLEP 2015. However, Mr Bevitt was unable to articulate precisely any aspect of multi-dwelling housing that distinguished it from a residential flat building in such a way as to make the residential flat building inappropriate for the site. His view was that in multi-dwelling housing there may be more flexibility in design to achieve a better streetscape, but was unable to say what design that might be, other than by reference to compliance with the minimum width at the front building line. 2. Mr Wood's evidence was instead that a multi-dwelling development is more restrictive, and that as each unit of multi-dwelling housing must be separated by a wall with separate entrances at the ground floor, you cannot achieve the articulation in the building form and the variation in setbacks that can be achieved with a residential flat building. Mr Wood also points out that for multi-dwelling housing, a 3m side setback applies and the proposed development has greater setbacks than this. 3. I accept the evidence of Mr Wood with respect to the flexibility that the design of a residential flat building allows. I am also of the view that the proposal has taken advantage of that flexibility, and has been designed in such a way as to minimise the impacts on neighbouring properties, and to present an articulated form at the front and side that provides an appropriate transition between the existing residential flat building to the south and the dual occupancy to the north. The proposal is sensitive to the width of the site, offering sufficient setbacks that result in a building width to frontage proportion similar to or less than other high density development in the locality. 4. For these reasons, together with my reasons expressed earlier regarding the sufficient width and size of the site, the site is suitable for the proposed development. Does the proposal create an undesirable precedent? 1. The Council submits that the proposal is not in the public interest and should be refused as it would set an undesirable precedent in the locality. The Council directs the Court to the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]): "…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration." 1. The Council submits that there are a number of other sites within the locality that are of a similar size and comprise old housing stock that could be turned over to similar undesirable residential flat buildings should this development be approved. 2. As set out by Lloyd J, the test as to whether a proposal creates an undesirable precedent comprises two steps. The first step is whether there is something objectionable about the development itself. The second is whether "there is a sufficient probability that there will be further applications of a like kind". 3. I am not satisfied that the Council has met the first step of this test. Whilst the Council has a preference for residential flat buildings on larger lots with larger frontages, the Council has not established that there is anything objectionable about the proposal, which will be the first on a smaller allotment on Jacobs Street. The SEPP ARH permits the development of in-fill affordable housing in the form of residential flat buildings in zones where they are permissible, and on lots greater than 450m2. To accommodate the building on a site of 636.60m2 and a width of 20.115m, the present proposal has been sensitively designed with articulation and varied setbacks, which result in a building width to frontage proportion similar to or less than other high density development in the locality. The result is that whilst the permissible FSR is 1.32:1, the actual proposed FSR is 1.08:1. 4. The development therefore fulfils the objectives of the SEPP ARH in a high density area with appropriate concessions to respect the amenity of adjoining neighbours and to achieve compatibility in the streetscape. As such, it cannot be said to be an undesirable precedent. The appropriateness of the pathway to the entrance 1. The owner and occupier of 50 Jacobs Street expressed concern about the location of the entrance to the development and the pathway to the entrance, which would be directly adjacent to her rear balcony. She submits that this will interfere with the amenity and quiet enjoyment of her balcony. 2. Mr Wood's opinion is that the pathway is not of concern given that it won't be the only way that residents will enter, with many accessing their units through the lift from the basement, and two units accessible directly from the street. As a result, his view is that the pathway and entrance will have minimal impact on the adjoining neighbours. 3. Mr Bevitt's opinion was that this would not, of itself, warrant refusal of the application but might be considered together with other factors as forming a basis for refusal. 4. I accept Mr Wood's evidence that the pathway will not be the only way that residents will enter the building, and that this means that any amenity impact caused to the balcony of 50 Jacobs Street will be occasional and minimal. Orders 1. As set out above, I find that the development is an appropriate application of the SEPP ARH and an appropriate response to the site's constraints, the applicable controls, and its location and context. Given that the other planning controls of the SEPP ARH, the BLEP 2015 and the BDCP 2015 are met, there is no basis to refuse the development application and it is granted accordingly subject to the conditions of consent as agreed between the parties. 2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures and the construction of a four storey residential flat building comprising 10 units and basement car parking at 48 Jacobs Street, Bankstown (Lot B DP 336854), subject to the conditions of consent in Annexure A and pursuant to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009, with dwelling numbers 3, 5, 8 and 10 to be dedicated as affordable rental housing for a period of 10 years following the issue of the occupation certificate. 3. The exhibits are returned, except for exhibits 6, A, B, D, E and H. ___________________ Joanne Gray Commissioner of the Court Annexure A (74.9 KB, pdf) ********** Amendments 10 January 2019 - Correct typographical error at [32]: site depth of 15m. 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: 10 January 2019