Land and Environment Court New South Wales Medium Neutral Citation: ACN 603 347 834 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1261 Hearing dates: 5 June 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: By consent (1) The appeal is upheld (2) Development Application No. DA2018/0149 for the demolition of the existing buildings, excavation for a basement car park and the construction of a two storey boarding house containing 32 boarding rooms (including a manager's room) at 60 Binalong Avenue, Allambie Heights, is approved subject to conditions set out in Annexure 'A'. And further that: (3) The exhibits are returned with the exception of Exhibits A, C, 1 and 4. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a new boarding house – consent orders – public objections Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy 55 – Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2009 Disability Discrimination Act 1992 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Warringah Local Environmental Plan 2011 Cases Cited: Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) (2018) NSWLEC 204 Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180 Thurkal v Parramatta City Council [2011] NSWLEC 1019 Maharaj v Parramatta City Council [2011] NSWLEC 1074 GPC No 5 (Wombarra) pty Ltd v Wollongong City Council (2003) NSWLEC 268 Project Venture Developments v Pittwater Council (2005) NSWLEC 191 Veloshin v Randwick Council [2007] NSWLEC 428 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Texts Cited: Practice Note Class 1 Development Appeals Northern Beaches Affordable Housing Needs Analysis 2016 Warringah Development Control Plan 2011 Category: Principal judgment Parties: ACN 603 347 834 Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: R O'Gorman- Hughes (Applicant) Solicitors: Addison Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/00109854 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of the Applicant's Development Application No. DA/2018/0149 by Northern Beaches Council (the Respondent). Following the lodgement of the appeal the development application was refused by Northern Beaches Council on August 15 2018. 2. The development application seeks approval for the demolition of existing structures and the construction of a two storey boarding house and associated parking at 60 Binalong Avenue, Allambie Heights. 3. Following the termination of the conciliation, held pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act), the parties continued discussion on the form of development proposed for the site. On 30 May 2019, the Applicant, by way of notice of motion, was granted leave to rely on an amended set of architectural plans (the amended plans). 4. The amendments made to the proposal are described by the Applicant's planning expert as follows: - Reduction in rooms. Reduction in the total number of boarding rooms from 36 (including managers room) to 32 (including managers room); a reduction of 11.1%. - Increased street frontage setbacks to 6.5m. - Decreased gross floor area and building bulk. The gross floor area has reduced from 1,245 m² to 997m² which equates to a 20% reduction in gross floor area. - Increased parking. The original DA that was lodged with nine car parking spaces the modified scheme contains 19 car parking spaces which is two spaces surplus to requirements. - Increased landscaping. The landscaped Open space is 25% more than what is required in the R2 zone under the Warringah DCP. The DCP requirement is 40% or 683 m² yet the proposal provides 855 m² or 50%, which is 25% above the control. - Increased building separation. The building separation has been increased from 2 m originally to 4 to 5 m. - Three building forms. The boarding house design has been separated to avoid long lengths of building to the street frontages. The architecture reflects this by providing two, 4- to-5 meter gaps at each of the Binalong Avenue and Nargong Road frontages. - Breezeway created. There is now a four-meter-wide breezeway that has planting through its extent. This is now the entry to the building from Binalong Avenue. - Relocated common area. In response to issues raised by Council and the community, the single storey common room has been removed. The original common room has been modified and an outdoor area adjacent to the common room has been provided. - Relocated common outdoor area. The outdoor common area has been located to be adjacent to the Nargong Road / Jennifer Avenue street frontages. There is also a secondary outdoor area within the rear of the property (effectively the rear yard) which is visible from the on-site manager's room which will facilitate casual observation of the space. - Additional building entry. The main entrance to the proposed development is off Nargong Road with a secondary entrance off Binalong Avenue created, enhancing access to and from the site and activation of these frontages providing improved casual observation of these spaces. - Reduced wall heights. The amended design is compliant with Warringah DCP control B1 wall heights as shown on drawing DA904 only roof elements extend be on the wall height plane. - Waste management. The operational plan of management will be updated to include waste transfer from basement to the temporary holding area. (Exhibit E) 1. The Respondent is satisfied that the amended plans address the issues raised by them in the Statement of Facts and Contentions dated 30 May 2018 (Exhibit 1). 2. The parties seek for the appeal to be resolved through agreed consent orders. The orders sought are that the appeal is upheld and consent is granted to the development, subject to a set of agreed conditions. 3. During the proceedings the Court granted leave to a set of amended drainage engineering plans to reflect the amendments to the proposal made in the architectural plans. Leave was not objected to by the Respondent. 4. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. The Practice Note - Class 1 Development Appeals (Practice Note) sets out the procedural requirements at par 99: "Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary." Site and Locality 1. The site consists of a double allotment and is legally described as Lots 2211 and 2223 in DP 725038. 2. The site is a corner lot located on the eastern side of Binalong Avenue, the south eastern side of Jennifer Avenue and the southern side of Nargong Road in Allambie Heights. 3. The site has an approximate total area of 1,708m². The eastern boundary adjoins a public reserve and the southern boundary adjoins a detached dwelling. The remaining property boundaries are public roads. 4. There are a mix of housing forms and allotment configurations within the local context. Planning Controls 1. The site is mapped as 'bushfire prone land' under the Warringah Local Environmental Plan 2011 (LEP 2011). Pursuant to s 4.46 of the EPA Act the development application is integrated development. The NSW Rural Fire Service provided concurrence and recommended conditions by correspondence on 18 April 2018. The recommended conditions have been incorporated in the agreed conditions annexed to this judgment. 2. Pursuant to cl 45(2) of State Environmental Planning Policy (Infrastructure) 2007 Ausgrid provided their conditional consent to the development on 22 February 2018. The recommended conditions have been incorporated in the agreed conditions annexed to this judgment. 3. The Council assessment report makes the following assessment of the land under State Environmental Planning Policy 55 – Remediation of Land: Clause 7(1)(a) of SEPP 55 requires the Consent Authority to consider whether land is contaminated. Council records indicate that the subject site has been used for residential purposes for a significant period of time with no prior land uses. In this regard it is considered that the site poses no risk of contamination and therefore, no further consideration is required under Clause 7(1)(b) and (c) of SEPP 55 and the land is considered suitable for the residential land use. (Exhibit 2) 1. I accept the evidence of the Council that the likelihood of contamination is low and that the land is suitable for the residential land use proposed. 2. The site is zoned R2 Low Density Residential under LEP 2011 and development for the purpose of 'boarding house' is permissible with consent. The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah. 1. Relevantly the following uses are also permitted with consent in the zone (emphasis added): Bed and Breakfast Accommodation; Boat sheds; Building Identification signs; Business Identification signs; Centre- based child care services; Community facilities; Dwelling houses; Educational Establishments; Emergency services facilities; Environmental protection works; Exhibition homes; Group homes; Health consulting rooms; Home businesses; Hospitals; Oyster aquaculture; Places of public worship; Pond- based aquaculture; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Tank-based aquaculture; Veterinary hospitals. 1. The principal development standards relevant to the subject site are as follows: * Clause 4.1: Minimum subdivision lot size: 600 sqm * Clause 4.3: Height of Buildings: 8.5m * Clause 4.4: FSR, not adopted 1. The parties are agreed that the development is compliant with the 8.5m building height limit. 2. Pursuant to cl 6.3(3): Flood Planning of LEP 2011, the Consent Authority is required to be satisfied of the following prior to the grant of consent: Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. During the onsite component of the hearing, evidence was provided by Council's Development Engineer that the amended drainage engineering plans are acceptable to the Council. He is satisfied that the previous contentions of the Council and the concerns raised by the adjoining resident are resolved. Further he advises that the proposed development satisfies the requirements of cl 6.3 of LEP 2011. 2. I accept the evidence of the Council and I am satisfied the provisions of cl 6.3(3): Flood Planning of LEP 2011 is met by the amended proposal and the additional information filed, including the Taylor Consulting Report: Trunk Drainage and Watercourse Study (Exhibit H). 3. In addition to the LEP provisions, the application is required to be assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP ARH). 4. Division 3: Boarding Houses in SEPP ARH at cl 27 states that boarding house development cannot be carried out in the R2 Low Density zone unless it is within an 'accessible area' as defined. The parties accept that this condition is met. 5. Relevantly SEPP ARH defines 'accessible area' as follows: accessible area means land that is within: … (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 1. The Applicant's planning expert argues the development meets the definition of 'accessible area' as follows: The subject site is located within 250 metres to 2 regularly serviced bus stops on Allambie Road and is therefore deemed to be within an 'accessible area', entirely satisfying cl27(3) of SEPP ARH 2009. These bus stops are serviced by: ▪ Route 280, Forest Coach Lines, Chatswood to Warringah Mall via East Roseville, Forestville, Frenchs Forest & Allambie. These services run on all days of the week, including Sundays and Public Holidays. https://forestcoachlines.com.au/timetables/sydney/download-time-tables/ ▪ Route 142, Transport NSW, Allambie (Skyline Shops) to Manly via Allambie Heights, Manly Vale and Balgowlah. This service operates daily. https://wherewelive.com.au/wpcontent/uploads/2017/04/Allambie-Heights_- Manly_City_142_E66_Feb2017.pdf ▪ Route E66, Transport NSW, Allambie (Skyline Shops) to City - Wynyard EXPRESS via Allambie Heights, Manly Vale, Mosman, Cremorne and Neutral Bay. Service operates Monday to Friday peak hours. https://wherewelive.com.au/wpcontent/uploads/2017/04/Allambie-Heights_- Manly_City_142_E66_Feb2017.pdf For these reasons the proposed development is located within an accessible area as defined by the SEPP. (Exhibit E) 1. I note that in Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) (2018) NSWLEC 204 at [54] it was accepted that the definition of accessible area can be met by a combination of bus services or bus stops to achieve the required bus frequency. 2. Following a review of the timetables filed (Exhibit G) for the relevant routes I am satisfied the definition of accessible area is met by the 142 Bus Route, complemented the 280 Bus Route. Accordingly cl 27(3) of SEPP ARH is met. 3. During the exhibition period of the application, and at the onsite component of the hearing, a community member raised concern that the proposed and existing foot paths that allow access to the relevant bus stop, did not meet the appropriate gradients for access for wheel chair users. Further she raised concern that, given the development gained 'permissibility' by being accessible; the failure to achieve disabled access to the relevant bus stop was contrary to the provisions of the Disability Discrimination Act 1992 (DDA). 4. Relevantly 'walking distance' is defined in SEPP ARH as follows: walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings. 1. In his submissions to the Court Mr Patterson accepts that the provisions of DDA apply to the site and that compliance with the access requirements of the DDA must be demonstrated by the proposed development: see Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180. However he submits that there is no case law that demonstrates that those requirements extend beyond the site, or specifically are required in meeting the accessible area provisions of SEPP ARH. 2. Further Mr Patterson references two decisions of the Court: Thurkal v Parramatta City Council [2011] NSWLEC 1019 (Thurkal v Parramatta) and Maharaj v Parramatta City Council [2011] NSWLEC 1074 (Maharaj v Parramatta). 3. In particular he relies on paragraph [46-47] of Thurkal v Parramatta which addresses whether it is reasonable to require a boarding house development to accord with the disability access provisions of the Building Code of Australia and AS1428.1- Design for Access and Mobility. The judgment states: 46. A consideration of this issue must be balanced against the fact that this SEPP [SEPP ARH] does not require compliance with the disability access provisions of the Building Code of Australia and AS 1428.1- Design for Access and Mobility. … 47. In my assessment under the SEPP of the conversion of a 4-bedroom house into a 6-bedroom boarding house with a maximum 10 residents it is unnecessary to impose the deferred commencement condition. In the particular circumstances of the case, it is a small scale boarding house and it is unnecessary to impose requirements beyond those specified in the SEPP. 1. Mr Paterson notes this approach was adopted in the decision of Maharaj v Parramatta City at [25] and should be noted by the Court in considering the residents submission. 2. Mr O'Gorman Hughes concurs with the submissions of Mr Patterson and further argues that the DDA contains no requirement for an accessible path to be provided to a facility. Further he submits that the drafting of the definition of 'walkable distance' in SEPP ARH is distinct from how a similar concept is drafted in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP SL). For comparison he draws the Courts attention to cl 26(2) of SEPP SL which states: 2) Access complies with this clause if: (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or … 1. Mr O'Gorman Hughes notes that the specificity of these requirements in SEPP SL is not mirrored in SEPP ARH. 2. I accept the submissions of the parties that the development meets the accessibility requirements of SEPP ARH. Despite giving consideration to the residents submission, I find there is no evidence or special circumstances that warrant the imposition of requirements beyond those in SEPP ARH. 3. Relevantly at cl 29 of SEPP ARH it details a number of standards that cannot be used to refuse consent to development if the relevant conditions are met. The evidence is that these standards are met by the amended application. The standards of cl 29 of EPP ARH are as follows: (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 carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 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. 1. At cl 30 of SEPP ARH are a number of standards for Boarding Houses. The consent authority must not consent to development to which Division 3 applies, unless these standards are met. I am satisfied that the current application meets these standards. 2. Under cl 30A of the SEPP ARH, the consent authority cannot consent to the development of a boarding house under the ARH SEPP "unless it has taken into consideration whether the design of the development is compatible with the character of the local area". The issue of compatibility of the development is discussed in more detail later in the judgement at [58]-[63]. 3. Relevantly, in February 2019 the SEPP ARH was amended so boarding houses are limited to 12 boarding rooms per site within the R2 Low Density Residential zone. In addition the amendment removed the applicability of cl 30A (the character consideration). The Explanation of Intended Effect which accompanied the exhibition of the amendments notes that the intent of the changes as follows: The proposed amendment to the Affordable Rental Housing SEPP will provide for a new provision that limits the number of boarding rooms in a boarding house development in the R2 zone to a maximum of 12 boarding rooms. The intention of the proposed amendment is to ensure that the built form of boarding house development in the R2 zone is compatible with the built form of other development in the local area. The proposed introduction of a maximum room number for boarding houses is considered to assist in ensuring that amenity impacts of boarding house development on adjoining and nearby properties such as overlooking, overshadowing and car parking impacts, are able to be better managed. (https://www.planning.nsw.gov.au/Policy-and-Legislation/Housing/Diverse-and-affordable-housing/Boarding-Houses) 1. The parties agree that the amended SEPP ARH, incorporating the maximum limitation of 12 rooms, does not apply to the current application: cl 54C: Savings and Transitional Provisions - 2019 amendment. This clause states: 54C Savings and transitional provisions—2019 amendment (1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement. (2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced. (3) In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019. 1. The development is also required to have regard to the applicable provisions of Warringah Development Control Plan 2011 (DCP 2011). Merit Contentions raised 1. The Council filed a Statement of Facts and Contentions (Exhibit 1) that identified the following reasons why the unamended version of the application should be refused: 1. that the proposed development is not compatible with the character of the local area, and therefore does not comply with cl 30A of SEPP ARH. 2. as the development has excessive wall height and fails to comply with Part B1 Wall Height of DCP 2011. 3. as the proposed setbacks from Binalong Avenue, Jennifer Avenue, and Nargong Road are inadequate and do not comply with Part B7 Front Boundary Setbacks in DCP 2011. 4. as it results in unacceptable internal privacy impacts. 5. as the landscaping treatment of the site is unsatisfactory. 1. Consistent with the Practice Note, the Council has provided a planning assessment report. The report was prepared by Councils Planning expert Mr Daniel Milliken and details how the Council has formed a view that it is now satisfied the above contentions are resolved and the application warrants approval. 2. The reasoning of the Mr Milliken against each of the contentions is reproduced below, extracted from his report: 1. Character Clause 30A - Character of local area, states: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The amended development has been reduced in size and scale by breaking the built form up into three modules. This broke down the building elements to lengths similar to those of detached dwelling houses. The front setbacks were increased, allowing more landscaping within the front setback area so that the treatment of the front landscaped areas are now compatible with the existing streetscape. The total landscaped area across the site was also increased, giving the development a suitable landscaped setting, consistent with the majority of surrounding development. The 'compatible' test is not the same as requiring the design to be 'consistent' with the character of the local area. The matter of assessing the character compatibility of development has been examined by the Land and Environment Court in GPC No 5 (Wombarra) pty Ltd v Wollongong City Council (2003) NSWLEC 268 and Project Venture Developments v Pittwater Council (2005) NSWLEC 191 where Senior Commissioner Roseth set out Planning Principles to better evaluate how a development should respond to the character of its environment. The character of the amended development was assessed against these Planning Principles. The amended development is now fully compliant with all relevant controls including those which apply to a standard house, provides a suitable landscaped setting, is set well back from all boundaries and is considered to be 'compatible' with the character. Nevertheless, it is appreciated that the Community will still have concerns with the proposal for a boarding house. 2. Carparking The number of rooms decreased to 32 and the carparking increased to 19 spaces. The development only needs to provide 17 spaces to prevent any consent authority from refusing the application on the grounds of carparking. 3. Wall height The proposal is now fully compliant with the 7.2m wall height control. 4. Front Setbacks and Landscaping The proposal is now fully compliant with the 6.5m front setback control to all three street frontages, despite the DCP allowing a 3.5m setback to secondary streets. The treatment of the front setback area was also greatly improved by the removal of hard surfaces and a more appropriate landscape design. Council's Landscape Officer is satisfied with this outcome. 5. Privacy The original proposal had a common outdoor area that directly adjoined a number of rooms, leading to visual and acoustic privacy issues. This outdoor area has been moved adjacent to the entrance and the common indoor area. This change did not result in any unreasonable external privacy issues. 6. Stormwater, Drainage and Engineering The applicant submitted a revised stormwater design as well as a Flood Study. These satisfied Council's Development Engineers. 7. Insufficient Information Revised landscape plans were submitted. These satisfied Council's Landscape Officer. The applicant agreed to construct a footpath to the nearest bus stop. This footpath has been detailed on the latest set of plans and satisfies Council's Road Assets Team, Development Engineers, Traffic Officer (re: pedestrian safety) and Landscape Officer (re: the treatment of the road reserve). The waste room was amended to comply with Council's guidelines and the plan of management for the boarding house has been altered to outline how waste will be dealt with on an ongoing basis. Conclusion The amended plans, additional information and recommended conditions of consent have, in my professional opinion, satisfactorily resolved the contentions. … 1. Mr Milliken also notes he agrees with the Statement of Evidence of the Applicant's planning expert Mr Haynes (Exhibit E). 2. Mr Haynes provides the following evidence in support of the resolution of the previous contentions. The following sections are extracted from his Statement of Evidence: 1. Contention 1: Compatibility with character: Clause 30A of SEPP ARH 2009 … ▪ The scale of the proposed development has been amended by increasing the front setback and increasing the landscaped area within the front setback. ▪ The length of building elements, along each of its three street frontages have been amended. The boarding house design has effectively been separated into three separated building forms when viewed from the adjacent streets. This responds to the concern that the original design presented long lengths of building to the street frontages. The architecture now reflect this providing 4 to 5 meter gaps at the belong Avenue and Nargong Road frontages. ▪ The treatment of the front landscaped areas has been amended in liaison with Council's landscaping expert. The design reflects input from the proponents and Council's expert. ▪ The setbacks to each street boundary have been amended noting: ▪ The boundary setback to 58 Binalong Avenue has been increased from 2.1m (at ground level) to 3m; ▪ The boundary setback to Nargong Road and Jennifer Avenue has been increased from 3.5m to 6.5m. The proposal complies with all of the development standards and built form controls applicable to the site/type of development. It presents a compatible 2 storey height noting that nearby development ranges from 1 to 2-3 storeys. … The proposal is a boarding house that is permitted in the zone and will therefore have some differences in its appearance to single residential houses. But a proposed development does not need to be the same as existing development to satisfy the test of compatibility with local character. Overall, it is assessed that the proposed design: ▪ is of high quality and has appropriately responded to the established local character and likely future character ▪ is appropriate in addressing each of its street frontages ▪ will not be prominent with the site's position being below the street levels of the adjoining roadways. ▪ will be located within a landscaped setting ▪ presents no physical impacts in terms of shading, privacy, visual impact, or scale – as further addressed under the respective subject areas below ▪ is harmonious and sympathetic with existing development. The amended plans incorporate street elevations that demonstrate the proposal will fit in contextually within its streetscape setting. 1. Contention 2: Wall Height The Architectural Plans have been amended to address this contention. The amended design is compliant with Warringah DCP control 'B1 wall height' as shown on drawing DA904; only roof elements extend beyond the wall height plane, as is allowed by the control. The proposed building height is complaint with the DCP Wall height control. 1. Contention 3: Front Setbacks The architectural plans have been amended to address these contentions by the following design changes: ▪ The boundary setback to Nargong Road and Jennifer Avenue has been increased from 3.5m to 6.5m; effectively resulting in the proposed development having two primary street frontages to the benefit of the adjacent streetscapes. ▪ The majority of these increased setbacks are proposed as landscape area and generally free of structures in accordance with the Part B7 of the DCP. ▪ A landscaping concept plan has been added to the architectural plan set. It incorporates planting zones A, B and C adjacent to each of the three street frontages with a detailed planting regime associated with each planting zone. These changes have been undertaken in consultation with Council's landscaping expert to facilitate addressing the concerns raised. ▪ The primary outdoor area (adjacent to the common room) has been moved from within the front setback to be behind the front setback. 1. Contention 4: Privacy It is noted for clarity that this privacy concern is internal to the proposed development rather than relating to a neighbouring property. The Architectural Plans have been amended to address this contention by deleting the common outdoor area at the rear and relocating it adjacent to the Nargong Road / Jennifer Avenue street frontages. This resolves the issue by removing the privacy conflict on rooms 11, 12, and 13. The remaining space to the east of these rooms is now proposed to be a 1m deep raised planter that will enhance the amenity of this space. 1. Contention 5: Landscaping … The amended Architectural Plans address the manner in which the adjoining road verges (Binalong Avenue particularly). The following aspects are noted: ▪ The boundary setback to Nargong Road and Jennifer Avenue has been increased from 3.5m to 6.5m; effectively resulting in the proposed development having two primary street frontages to the benefit of the adjacent streetscapes. ▪ The majority of these increased setbacks are proposed as landscape area and generally free of structures in accordance with the Part B7 of the DCP. ▪ A landscaping concept plan has been added to the architectural plan set. It incorporates planting zones A, B and C adjacent to each of the three street frontages with a detailed planting regime associated with each planting zone. These changes have been undertaken in consultation with Council's landscaping expert to facilitate addressing the concerns raised. 1. I am satisfied on the basis of the arguments submitted by the Mr Haynes, and agreed by the Mr Milliken, that the amended development satisfactorily responds to and addresses the previous contentions raised by the Respondent, noting I have detailed my consideration of the compatibility of the proposed development with the character of the locality later in the judgment [58]-[63]. Consideration of objections 1. The original development application was notified from 16 February 2018 and 21 March 2018 in accordance with the provisions of DCP 2011. The Council received 99 objections to the development. The issues raised within the submissions can be summarised as follows: Zoning The development is not suitable for the low density residential zoning of the site or this area of Allambie Heights. Boarding houses should not be permitted within the R2 Low Density Residential zone and that the State Environmental Planning Policy (Affordable Rental Housing) 2009 should not override Council's controls. Character The proposal is not compatible with the character of the local area. Boarding house residents The boarding house will be occupied by residents who are transient, involved in crime or anti-social activities or by people dependent on social services. Concerns are also raised that this is a family orientated area and that a boarding house does not fit with this social character, particularly in relation to the relatively short term stays and the potential activities of the residents (eg: smoking). Traffic and parking The development does not provide sufficient on-site car parking and that the increased occupancy of the site will result in traffic congestion and a loss of on-street parking. Accessible area, pedestrian safety and bus services The proposal is not in an "Accessible Area', the pedestrian pathways are either non­existent or inadequate, and that the bus services it relies upon to service the residents are infrequent. Privacy The proposal would result in unreasonable privacy impacts. Building bulk The proposal has excessive building bulk. Landscaped open space The submissions raise concerns that the proposal does not sit within a suitable landscaped setting and does not comply with Council's landscaped open space control. Bushfire The bushfire report submitted with the application contained errors, including incorrect classification of the building and site vegetation. The NSW Rural Fire Service has made errors in their assessment of the application and incorrectly issued approval conditions. Impact on natural environment The proposal will have unacceptable impacts on the natural environment. Stormwater The stormwater disposal system is not adequate. Infrastructure The addition of up to 64 new residents to this one site would result in a negative impact on existing infrastructure, such as the provision of power, water and sewage services. Driveway visibility The additional cars parked on the street would reduce the visibility for surrounding residents leaving their driveways. Waste management The waste management plan submitted with the application is inadequate and that the number of new residents would generate a large amount of rubbish. Property values The proposal would impact on property values in the area. (Exhibit 6) 1. At the commencement of the proceedings, on-site evidence was heard from a number of objectors to the application. The issues raised by these objections repeated many of the issues detailed above with the following additional concerns: * Overshadowing of proximate residents. * The impacts of construction traffic, deliveries and haulage of materials from the site. * Feasibility of the bin collection and waste management approach proposed. * Impact of the proposed footpath on the park and its existing canopy trees. * Whether the development will deliver affordable housing. Expert Evidence on the issues raised by objectors: 1. Mr Haynes provides the following evidence in support of the resolution of the concerns raised by the public, noting that the following sections are extracted from his Statement of Evidence: * Traffic and parking The proposal is accompanied and supported by a traffic assessment prepared by Traffic & Urban Planning Pty Ltd. It finds that: the volume of vehicles exiting the car park is expected to be low due to it being a low traffic generating development, and pedestrian volumes in the area are also low. Furthermore, Council's experts have assessed and endorsed the proposal in their referral response subject to conditions of development consent. * Privacy It is assessed that the proposal is satisfactory and appropriately designed to reasonably address privacy considerations. The following features of the design and its relationship with adjoining land are noted: ▪ The majority of accommodation rooms are orientated to either the north (Jennifer Ave / Nargong Road) or east / west, where adjacent to Binalong Avenue to minimise the potential for overlooking across side boundaries. ▪ Significant separation provided by the adjoining roadways and the open space corridor to the east of the site. Furthermore, the design provides significant setbacks to the eastern side boundary ranging from 4.86m to 22.3m. ▪ The proposed rooms and communal spaces are appropriately separated from each other and adjoining developments. - The principal, north facing communal room is significantly separated from nearby dwellings. An onsite manager will reside on the property and support the orderly function of the communal room. Furthermore, an operation management plan accompanies the application an establishes rules for use of the communal room. - These spaces will not significantly or unreasonably affect the visual privacy of the neighbouring properties. ▪ In relation to the southern boundary interface, the proposal adjoins number 58 Binalong Avenue. The design provides an increased setback of 3m metres to the ground floor level of the southern side boundary. Window openings within the southern elevation of the building are providing appropriate light, ventilation and articulation to the elevation without compromising privacy. Privacy screens are provided to the balcony of the managers room to maintain privacy in a southerly and easterly direction. Furthermore, a garage with metal roof and driveway are located adjacent to the common boundary between the properties. The proposal will achieve an appropriate privacy outcome to this property. Noting these characteristics, it is concluded that the proposal will not significantly or unreasonably affect the visual privacy of the neighbouring properties and will achieve an appropriate privacy outcome. * Building bulk Notwithstanding the following points summarise the key changes to the design that will reduce its visual impact: ▪ Increased setbacks and landscaped area and a corresponding reduced development footprint. The landscaped Open space is 25% more than what is required in the R2 zone under the Warringah DCP. The DCP requirement is 40% or 683 m² yet the proposal provides 855 m² or 50%, which is 25% above the control. ▪ Decreased gross floor area and building bulk. The gross floor area has reduced from 1,245 m² to 997m² which equates to a 20% reduction in gross floor area. ▪ Reduced wall height. The amended design is compliant with Warringah DCP control B1 wall heights. ▪ Increased building separation. The building separation has been increased from 2 m originally to 4 to 5 m. ▪ Creation of three building forms to avoid long lengths of building to the street frontage. The architecture now reflects this providing 4-to 5- meter gaps at the Binalong Avenue and Nargong Road frontages. ▪ Breezeway created. There is now a four-meter-wide breezeway that has planting through its extent. This is now a secondary entry to the building from Binalong Avenue * Landscaped open space The amendments to the Architectural plans provide increased landscaping. The landscaped Open space is 25% more than what is required in the R2 zone under the Warringah DCP. The DCP requirement is 40% or 683 m² yet the proposal provides 855 m² or 50%, which is 25% above the control. * Bushfire The site is designated as bushfire prone. The proposed development has been designed to satisfy bushfire planning considerations and has been endorsed by the NSW Rural Fire Service. The proposal is accompanied and supported by a bushfire protection assessment report by Bushfire Consultancy Australia. Furthermore, the application was referred to the NSW Rural Fire Service and in a letter response dated 18 April 2018 they state that no concern is raised to the proposal. Subject to compliance with the bushfire protection recommendations, the proposal satisfies planning for bushfire protection requirements. * Impact on natural environment (native vegetation, tree removal, and waterway) The proposal is also accompanied and supported by an arboriculture Assessment report prepared by Urban Forestry Australia. The extent, type, quality and health of vegetation on the site has been thoroughly assessed and documented. Based on the findings of this expert report it is assessed that tree removal considerations are satisfied by the proposal. Furthermore, the amended Architectural plans incorporate a landscaping concept plan which proposes additional replanting in response to this contention. These changes have been undertaken in consultation with Council's landscaping expert to facilitate addressing the concerns raised. The proposal is accompanied and supported by Waterway Impact and Flora and Fauna Assessment reports prepared by GIS Environment Consultants Pty Ltd. The Flora and Fauna Assessment report concludes: The proposal described in this report not likely to have a significant effect to any threatened species, population or ecological community and none of the BC Act thresholds are met, therefore a Biodiversity Development Assessment Report (BDAR) is not recommended in relation to this proposal. The ecological impact of the proposal is not likely to be an unacceptable impact by itself under Section 79C of the EPA Act or to have a significant impact under part 5A. The proposal is not considered to be a 'matter of National Environmental Significance (NES)' EPBC Act referral of the proposal to the Department of the Environment and Water Resources is not considered necessary. The proposal meets the requirements and objectives of parts E2, E4, E6 and E7 of the Warringah DCP 2011. We recommend that ameliorative conditions and management recommendations in this report be followed to reduce disturbance during construction and to improve ecological outcomes. Furthermore, the Waterway Impact Assessment report states in conclusion that: 'The current condition of the vegetation in the Riparian Land is low with many weeds. The proposal will have an impact on the Riparian Land on the property. The Biodiversity Management Plan and the recommendations in this report and the Flora and Fauna Assessment will help the recovery of the Riparian Land. The proposal will not have a significant impact to the waterway or the riparian land adjacent to the property' Based on the above conclusions it is assessed that natural environmental impacts are satisfied by the proposal. With the incorporation of the ameliorative conditions it is assessed that native fauna considerations are satisfied by the proposal. * Infrastructure The property comprises existing residentially zoned, urban land that is serviced by trunk infrastructure. It will not result in exceedance of the capacity of local and regional infrastructure and community services. It will not result in excessive population density or the exceedance of the capacity of local and regional transport facilities. * Driveway visibility The proposal is accompanied and supported by a traffic assessment prepared by Traffic & Urban Planning Pty Ltd. Furthermore, Council's experts have assessed and endorsed the proposal (as stated in their referral response), subject to conditions of development consent. * Waste management Sufficient waste management provisions are provided by the application. These have been endorsed by Council in the assessment of the DA. Waste management is provided within the basement level of the proposal. Provision for a bin storage area is provided at the northern end of the basement, adjacent to the vehicle entry point. Provision is made for the accommodation of 17 bins with a separately accessible bulky waste storage room adjacent. Provision for a temporary bin holding area is provided adjacent to the driveway. The storage areas have been designed to meet the DCP requirements. The DCP provisions relating to waste management are satisfied by the proposal. 1. Property values No empirical evidence has been provided by those making submissions that the proposal would result in a reduction in the value of nearby properties. 1. (Exhibit E) 2. Mr Milliken accepts the evidence of Mr Haynes that the concerns of the residents have been appropriately addressed and the amended application warrants approval. Accordingly the Respondent seeks the Court to make the agreed consent orders. 3. During the proceedings oral evidence was provided to the Court by Mr Haynes, Mr Milliken and Mr Anthony Powe (Landscape Architect and Arborist for the Respondent). In particular they were questioned as to the following issues raised by the objectors. A summary of the agreed oral evidence of the experts is detailed below: * Overshadowing of proximate residents. As demonstrated in the Shadow Diagrams (reference architectural plans DA 500,501 and 503) the rear of 58 Binalong Avenue achieves three hours sunlight to more than 50% of their rear private open space in mid-winter. This meets the requirements of DCP 2011. * The impacts of construction traffic, deliveries and haulage of materials from the site. The agreed conditions of consent should include a condition requiring the preparation of a construction management plan prior to commencement of work on site. * Feasibility of the bin collection and waste management approach proposed. Agreement that the bin room provided is sufficient in size to accommodate the required number of bins. The holding area is acceptable and has proven to be a feasible approach on other sites. The bins will not be required to be moved to the kerb and will be collected from the holding area by the contractor. * Impact of the proposed footpath on the park and its existing canopy trees. The footpath location has been agreed by Council and makes allowance for the tree protection zone for the proximate tree. 1. A condition of consent has been included in Annexure A to address the management of construction as follows: A Construction Management Program shall be prepared. The Plan should include the following: (a) The proposed method of access to and egress from the site for demolition, excavation and construction vehicles, including access routes through the Council owned or managed land and the location and type of temporary vehicular crossing for the purpose of minimising traffic congestion and noise in the area, with no access across public parks or reserves being allowed without Council's Consent being granted; (b) The proposed method of loading and unloading, demolition, excavation and construction machinery, excavation and building materials, formwork and the erection of any part of the structure within the site. Wherever possible mobile cranes should be located wholly within the site; (c) The location and operation of any on site crane. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure appropriate measures have been considered for site access, storage and the operation of the site during all phases of the construction process in a manner that respects adjoining owner's property rights and protects amenity in the locality, without unreasonable inconvenience to the community. 1. I note the concerns of the residents in relation to whether the development will deliver affordable housing. However it is the role of the consent authority to apply the relevant planning policy's as they are drafted and I am satisfied that the amended development, when assessed against those policies, meets their requirements. 2. I am satisfied on the basis of the arguments submitted by the Mr Haynes, and agreed by the Mr Milliken, that the amended development satisfactorily responds to and addresses the concerns raised by the residents, noting I have detailed my consideration of the compatibility of the proposed development with character below. Zoning and Character 1. The concerns of the residents are well canvassed in the evidence of the experts, which I have accepted at paragraph [49] and [58]. 2. However given the pervasive concern of the residents as to the compatibility of the development with their neighbourhood, its character and the low density zoning I have given separate consideration to these matters below. 3. As noted at paragraph [17] the R2 Low Density Residential zone provides for a diverse range of uses. I accept the submission of Mr O'Gorman Hughes that the diversity of these uses, the permissibility of boarding houses as a use and the compliance of the proposed development with the standards in LEP 2012 and the controls in DCP 2011 are relevant factors in determining the compatibility of the development with the character of the locality. 4. Further, relevant to the determination of compatibility with character is consideration of the likely future character of an area and whether the planning controls are aimed at preserving that character (Veloshin v Randwick Council [2007] NSWLEC 428 at [33]). The likely future character is the affected by the realisation of the planning controls. I have given weight to the fact that the proposed development is compliant with these controls in my assessment of the compatibility of the development. 5. However, I accept that the decision of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 concludes that the weight to be given to a draft environmental planning instrument is proportionate to its certainty and imminence, although the level of consideration may differ depending on the purpose of the planning controls proposed. The recent amendments to SEPP ARH are such a draft instrument given the effect of the savings and transitional provisions, refer paragraph [43]. 6. Given that the amendments to SEPP ARH restricting the size of boarding houses to 12 rooms have been effected, I am satisfied they should be given weight in considering the compatibility of the proposed development with the character of the local area. On balance I accept the evidence of the planning experts (at paragraph [47] and [49]) that the development achieves compatibility. My reasoning is as follows: 1. the subject site contains two separate allotments. Therefore, even if the provision restricting the size of boarding houses to 12 rooms applied to the site it would apply to each lot, resulting in a maximum of 24 rooms across the subject site. 2. I accept the subject site may be capable of further subdivision given the minimum lot size standard in LEP 2012. This is relevant in considering the proposed built form. 3. I am satisfied that the provision of landscaped area in the amended plans is greater than that required by DCP 2011. Further, the increased front setback to the secondary street frontage, and the presentation of the building as three building forms with separation make the scale of the development appropriate. 1. In concluding my assessment of the public submissions I have also given weight to the Northern Beaches Affordable Housing Needs Analysis 2016 (Exhibit F). Broadly this document concludes that the Northern Beaches have a supply of affordable housing well below the Sydney average. Further, it concludes that there are increasing demands for Key Worker Housing due, in part, to major investment in health infrastructure in the Northern Beaches. The document concludes, in part that "There is, therefore, an urgent need for action to increase the supply of affordable, especially rental, housing which is targeted at low to moderate income households, who are required to live and work in the Northern Beaches to support its community and economy" (Exhibit F). 2. The evidence of local community demand for such affordable accommodation is relevant material for my consideration as it falls within matters arising from the broad public interest (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195. 3. Section 4.15(b) of the EPA Act requires a consideration and balancing of a number of factors in the assessment of a development application. These includes the likely impacts of the development, including the benefits that may arise from the development along with the public interest at s.4.15(e). Notwithstanding the parties' agreement to Consent Orders in determining this matter, I have carefully considered the evidence and objections, the submissions and my observations during the onsite view. I am satisfied in my evaluation under s 4.15 of the Act that the amended proposal warrants approval. 4. The Practice Note requires: evidence that the approval is lawful and appropriate; satisfaction that any objections have been properly taken into account; and confirmation that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am satisfied that these requirements are met and accordingly, consent is granted to the development in accordance with the consent orders signed by the parties (Exhibit 7) and subject to the conditions of consent as agreed between the parties and annexed to this judgment. Orders 1. The Court orders: 2. By consent 1. The appeal is upheld 2. Development Application No. DA2018/0149 for the demolition of the existing buildings, excavation for a basement car park and the construction of a two storey boarding house containing 32 boarding rooms (including a manager's room) at 60 Binalong Avenue, Allambie Heights, is approved subject to conditions set out in Annexure 'A'. 1. And further that: 2. (3) The exhibits are returned with the exception of Exhibits A, C, 1 and 4. ……………. D M Dickson Commissioner of the Court Annexure A: Agreed Conditions of Consent. Annexure A (130 KB, pdf) ******** 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: 13 June 2019