Land and Environment Court New South Wales Medium Neutral Citation: Anglican Community Services trading as Anglicare v Fairfield City Council [2019] NSWLEC 1616 Hearing dates: Conciliation conference on 27 November 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [37] below Catchwords: DEVELOPMENT APPLICATION – residential flat building including affordable housing component and boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Fairfield City Plan 2010-2020: Community Strategic Plan Fairfield City Wide Development Control Plan 2013 Seniors Living Policy: Urban Design Guidelines for Infill Development 2004 Category: Principal judgment Parties: Anglican Community Services trading as Anglicare (Applicant) Fairfield City Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) J Reid (Respondent) Solicitors: Allens (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/93386 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Anglican Community Services trading as Anglicare (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Fairfield City Council (the Council) of Development Application No. 15.1/2019 (the application). 2. The application seeks consent under the EPA Act for lot consolidation, demolition of existing structures, removal of vegetation, construction of a residential flat building (RFB) and boarding house with communal open space (COS), and associated parking and ancillary site works at 36-40 Kenyon Street, Fairfield (the site). 3. In the Statement of Facts and Contentions filed with the Court, contentions raised by the Council regarding the application, as amended with the leave of the Court, included impact of the development on the character of the area (given the proposed side setbacks and location of COS), excess height, the proposed parking number and allocation, loading arrangements, and the amenity of a number of apartments. 4. The application was notified and 3 objections were received raising concerns in terms of inadequate on-site and on-street parking. 5. The appeal was listed for hearing before me. However, prior to the hearing, the parties conferred with respect to amendments to the application and agreed that amendments could be undertaken, supported by both parties, which addressed the contentions. 6. The parties therefore requested that the hearing be adjourned and the matter be listed as a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). This occurred and I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated. 7. As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court could make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 8. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 9. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 10. The parties provided a written jurisdiction statement with the agreement outlining why the agreement was lawful and why the appeal should be upheld. 11. In this regard, landowners consent was provided by the owner of the land, Anglican Community Services, on 7 December 2018. 12. The application was assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP) in terms of the infill affordable housing and boarding house components. 13. In terms of the infill affordable housing and cl 13 of the ARH SEPP, the proposed development complies with the maximum floor space ratio (FSR) requirement of 1.5:1 with a proposed FSR of 1.49:1. 14. In terms of cl 15 of the ARH SEPP, the Council has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the (then) Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with the ARH SEPP. 15. I am also satisfied that the design of the proposed development is compatible with the character of the local area as required by cl 16A of the ARH SEPP, and conditions of consent are imposed in terms of cl 17. 16. In this regard, for 10 years from the date of issue of the occupation certificate, the dwellings proposed to be used for the purposes of affordable housing will be used for that purpose and all accommodation that is used for affordable housing will be managed by a registered community housing provider, being the applicant. 17. A restriction will be registered, before the issue of the occupation certificate, against the title to the property in accordance with s 88E of the Conveyancing Act 1919 that will ensure that these requirements are met. 18. In terms of the boarding house provisions of the ARH SEPP and the requirements at cl 30, the proposed development provides a communal living room of 55m² located on the ground floor, does not provide any boarding room with a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25m², and does not have any boarding room which will be occupied by more than 2 adult lodgers. Further the proposed Operational Plan of Management to be enforced by Anglicare confirms that only 1 lodger will reside in each boarding room 19. The boarding house also provides adequate bathroom and kitchen facilities for the use of each lodger, being provided within each room, and there is at least one parking space for a bicycle and one for a motorcycle for every 5 boarding rooms (that is, 4 bicycle spaces and 4 motorcycle spaces are to be provided to serve 18 boarding rooms). 20. The design of the proposed development, as amended, has been found to be compatible with the character of the local area, as required by cl 30A of the ARH SEPP, and the proposed development does not include strata or community title subdivision of the boarding house, in terms of the requirements of cl 50A. 21. The development must also have regard to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG). I am satisfied that the relevant factors in SEPP 65 and the ADG have been considered. 22. In addition to the provisions of the ARH SEPP and SEPP 65, the application is required to comply with the requirements of the Fairfield Local Environmental Plan 2013 (the LEP) and the associated Fairfield City Wide Development Control Plan 2013 (the DCP). 23. In this regard, the proposed development is permissible with consent in the R4 High Density Residential zone in which the site is situated and is consistent with the objectives of the zone. 24. The proposed development does not contravene the maximum FSR requirements at cll 4.4 and 4.4A. The proposed development includes earthworks, and the matters identified in cl 6.2(3) have been considered accordingly. 25. The proposed development contravenes the maximum height requirement of 20m set by cl 4.3 of the LEP. The proposed building has a maximum height of 20.74m. This is a 740mm or 3.7% exceedance of the standard. 26. The maximum height exceedance occurs at the clerestory louvre window. Other elements that exceed the height standard include the lift overrun and a portion of the roof. The lift overrun has a maximum height of 20.72m, which equates to an exceedance of 3.6%. The roof has a maximum height of RL32.27m at the south west corner which represents an exceedance of the maximum height by 177mm being a 0.885% exceedance. 27. Prior to consent being granted, I must be satisfied in terms of the provisions of cl 4.6 including with the adequacy of the cl 4.6 variation written request submitted with the amended application dated 8 November 2019. 28. I am satisfied that the cl 4.6 written request demonstrates that compliance with the building height is unreasonable and unnecessary in the circumstances as required by cl 4.6(3)(a) as, despite the non-compliances, the development meets the objectives of the height development standard in the LEP. 29. The cl 4.6 requests also adequately establishes sufficient (and similar) environmental planning grounds that justify the height breach, as required by cl 4.6(3)(b). 30. In this regard, the following is a summary of the justification provided in the cl 4.6 written request for the height breach: 1. Reducing the height of the building so that the non-compliant elements strictly comply with the maximum height would result in a reduction in the building by one storey. In this instance, it is considered that removal of the upper floor level to achieve strict compliance would not result in an improved planning outcome. 2. The elements of the building that exceed the height limit are the lift overrun, clearstory louvre window and a very minor part of the roof structure that are ancillary elements of the building and non-habitable. 3. The architectural response in terms of these elements has been to design the building in such a way that the roof provides a comparable height response to a compliant scheme when viewed from Kenyon Street. 4. Locating the lift overrun above the maximum height limit is a site specific design response which aims to optimise the site's development potential, in a manner that is consistent with the height objectives to encourage a high quality built form, and responds to the streetscape. 5. The proposal provides social and affordable housing stock to meet latent demand in the Fairfield LGA, as outlined in the Western City District Plan and the Fairfield City Plan 2010-2020: Community Strategic Plan. 6. The height exceedances are located towards the centre of the building footprint. These structures will not cast any additional shadow than that cast by the building itself. Further, these non-habitable structures will cause no privacy or visual impact issues to neighbouring properties given their location on the roof of the building well above the sight lines from these neighbouring properties. 7. The building form has an appropriate bulk and scale that incorporates setbacks and recesses in the facades that will complement the desired streetscape character under the existing planning controls. 8. The non-compliant lift overrun and clerestory louvre window element are setback from the front building alignment to Kenyon Street, and the side and rear boundaries. Due to these setbacks, these elements will not be readily visible from the street front or from neighbouring properties. 9. The exceedences are relatively minimal in numeric terms. 1. As the development meets the objectives of the R4 zone and of the height standard, I am satisfied that the development will be in the public interest. 2. The development was amended to address the merit concerns raised and the Council is satisfied in terms of compliance with the design requirements of SEPP 65, the ADG and the DCP. 3. I note that the notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration. No objectors wished to be heard at the hearing. 4. Further, a Design Verification certificate required under SEPP 65 was submitted and was considered by the Council to be satisfactory. 5. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land requires a consent authority to consider the contamination and remediation of land when determining a development application. 6. In this regard, the parties advised that, based on findings of a preliminary contamination investigation, the land can be made suitable for the proposed development from a contamination perspective subject to appropriate removal of hazardous building materials and waste, and implementation of an unexpected finds protocol. These requirements are imposed in the conditions of consent. 7. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 8. Noting the agreement of the parties that the amendments set out in the plans the subject of the agreement are minor, the Court orders that: 1. The Applicant is granted leave to rely on the following amended plans: Name Date DA0000 Drawing Schedule/Site Location Plan Revision I 27 November 2019 DA0001 Perspective Revision I 27 November 2019 DA1001 Demolition Plan Revision H 27 November 2019 DA1100 Site Plan Revision H 27 November 2019 DA1999 Underground Floor Plan Revision D 27 November 2019 DA2000 Ground Floor GA Plan Revision J 27 November 2019 DA2001 Level 1-2 GA Plan Revision L 27 November 2019 DA2001.1 Level 3 GA Plan Revision B 27 November 2019 DA2002 Level 4-5 GA Plan Revision K 27 November 2019 DA2003 Roof Plan Revision H 27 November 2019 DA2455 Strata 2 Bed – Type 1 Revision C 27 November 2019 DA3000 Elevation Sheet 1 Revision H 27 November 2019 DA3001 Elevation Sheet 2 Revision I 27 November 2019 DA3100 Section Sheet 1 Revision H 27 November 2019 DA3101 Section Sheet 2 Revision H 27 November 2019 DA4100 GFA Calculations Revision H 27 November 2019 DA4101 SEPP 65 – BAL/POS & Common Areas Revision H 27 November 2019 DA4102 Landscape and Deep Soil Revision H 27 November 2019 DA4108 Waste Collection Diagram Revision D 27 November 2019 DA4159 Storage Plans Revision C 27 November 2019 DA4163 Fire Hydrant/Booster Details Revision B 27 November 2019 Landscape Design Report Revision I, prepared by Group GSA 26 November 2019 1. The clause 4.6 request to vary the height standard is upheld. 2. The appeal is upheld. 3. Development Application No. 15.1/2019 for lot consolidation, demolition of existing structures, removal of trees and vegetation, construction of a 6 storey residential flat building and boarding house containing 36 units (18x boarding rooms, 8x in-fill affordable housing units and 10 strata apartments) and at-grade communal open space and car, motorcycle and bicycle parking, and ancillary site works on the land at 36-40 Kenyon Street, Fairfield is approved subject to the conditions of consent annexed hereto and marked "Annexure A". ……………………………….. Jenny Smithson Commissioner of the Court Annexure A (332 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: 12 December 2019