Anglican Community Services v Blacktown City Council

[2020] NSWLEC 1031

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031
Hearing dates:	18-20 November 2019
Date of orders:	22 January 2020
Decision date:	22 January 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend the application to rely on amended architectural plans listed in condition 1 of the conditions of consent at Annexure A. (2) The Applicant is to pay the Respondent those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3)   The appeal is upheld. (4)   Development Application No. SPP-18-01556 for a mixed use development comprising three 8 storey buildings containing 60 affordable housing apartments, 54 boarding rooms including a manager’s room and 55 residential apartments, is approved, subject to the conditions of consent at Annexure A. (5)   The exhibits, other than Exhibits 2, A, H and N, are returned.
Catchwords:	DEVELOPMENT APPLICATION – mixed use development comprising in-fill affordable housing apartments, a boarding house and residential apartments – compatibility with local character –amenity and separation – setbacks – location of waste room – design excellence – design architect to be retained to undertake detailed design documentation for the purpose of obtaining all required construction certificates
Legislation Cited:	Blacktown Local Environmental 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 No 65—Design Quality of Residential Apartment Development
Cases Cited:	Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 Lonergan v Ashfield Municipal Council [2011] NSWLEC 1378 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Apartment Design Guide Blacktown Development Control Plan 2015
Category:	Principal judgment
Parties:	Anglican Community Services (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Allens (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/77976
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. SPP-18-01556 for a mixed use development comprising three 8 storey buildings containing 60 in-fill affordable housing apartments, 54 boarding rooms including a manager’s room and 55 residential apartments and basement parking (the proposal) at 21-27 Durham Street and 56-60 Mount Druitt Street, Mount Druitt (the site) by Blacktown City Council (the Council).

2. The appeal was subject to conciliation on 21 October 2019 in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 11 October 2019 for the applicant to amend the application by relying on amended drawings (Ex A) subject to a cost order pursuant to s 8.15(3) of the EPA Act.

4. Leave was granted by the Court on the second day of the hearing for the applicant to amend the application by relying on amended drawings (Ex H) subject to the applicant paying those costs of the respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed. The amendments made to the architectural drawings reflected the agreements reached by the urban design and planning experts in response to contentions raised by the Council.

5. Further amended architectural plans were admitted into evidence as Ex N on the final day of the hearing. The respondent submitted that the amendments made to the architectural drawings in Ex N were minor within the meaning of s 8.15(3) of the EPA Act.

Issues

6. The Council’s contentions can be summarised as:

• The proposal does not exhibit design excellence;

• The proposal is not compatible with the character of the local area and will have an unacceptable impact on the streetscape as a result of the built form of the proposal;

• The proposal does not provide appropriate amenity for future residents and results in an excessive built form;

• The separation between buildings between the 5th and 8th storeys and the setback from the northern boundary are insufficient;

• The frontage to Mount Druitt Road and the treatment of the buildings between the 5th and 8th storeys lacks visual interest;

• The proposal does not provide an appropriate level of amenity for future residents as a result of visual and acoustic privacy impacts, inadequate solar access and cross ventilation and poor internal design;

• The boarding rooms exceed the maximum area of 25sqm permitted;

• The waste management area should be located in the basement and not at ground level.

7. The remaining contentions in the Council’s Statement of Facts and Contentions (Ex 2) were not pressed following amendments made to the proposal as agreed by the urban design and planning experts (Ex H) and conditions of consent.

The site and its context

8. The site is on the north-eastern corner of Mount Druitt Road and Durham Street. The site is rectangular in shape and is comprised of a number of allotments. The site is currently vacant as the former dwellings on the site have been demolished. The site has a frontage of 103.7m to Durham Street and a frontage of 47.9m to Mount Druitt Road and an area of 5,149sqm.

9. There are four residential flat buildings of four storeys to the north of the site. There is a single storey dwelling to the east of the site and residential developments to the east of the dwelling at 11-13 Durham Street and 7-9 Durham Street of five and six storeys.

The proposal

10. The proposal is for 3 x eight storey buildings over a common basement containing 102 car parking spaces and service areas. Building A fronts Mt Druitt Road and Durham Street. Building B, the central building, is to the east of Building A and Building C is to the east of Building B. The proposal comprises a total of 169 units, comprised of 54 x boarding rooms including the manager’s room, 60 x 1 bedroom apartments (pursuant to the provisions of Part 2, Division 1 of SEPP ARH) and 55 residential apartments (to be the subject of a future strata plan). The residential apartments include 7 x studio apartments, 1 x one bedroom apartment and 47 x two-bedroom apartments.

11. Building A contains a common area on the Ground Floor opening onto an outdoor area and the waste loading area and basement entry are both accessed from the north side of Building A. Building A includes an ancillary Anglicare management office on the Ground Floor with external access from Durham Street. Building A contains in-fill affordable housing apartments and residential apartments.

12. Building B contains a common area on the Ground Floor opening onto an outdoor courtyard. Building B contains all of the boarding rooms opening onto the western and northern façades of the building and in-fill affordable housing apartments. Building B contains a total of 85 in-fill affordable housing apartments and boarding rooms.

13. Building C contains a common area on the Ground Floor opening onto an outdoor courtyard shared with Building B. Building C contains the boarding manager’s studio on the Ground Floor. Building C contains in-fill affordable housing apartments and residential apartments.

14. The proposal has been designed by the architectural firm Group GSA.

Planning framework

15. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). SEPP ARH applies to the proposal at cl 10(1)(a), as the proposal is permitted with consent in the R4 zone under the Blacktown Local Environmental Plan 2015 (LEP 2015) and the site is within an accessible area pursuant to cl 10(2).

In-fill affordable housing component of the proposal

16. Part 2 of SEPP ARH applies to new affordable rental housing and Division 1 applies to in-fill affordable housing. The proposal complies with cl 10(1) of SEPP ARH as residential flat buildings are a permissible use in the R4 zone pursuant to LEP 2015.

17. Clause 14 of SEPP ARH includes standards that, if met by the in-fill affordable housing component of the proposal, cannot be used to refuse consent. The proposal does not meet cl 14(e) solar access, which requires that a minimum of 70% of apartments receive a minimum of 3 hours direct sunlight in living rooms and private open spaces between 9am and 3pm on the winter solstice. The remaining standards under cl 14 are met by the proposal.

18. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) applies to the in-fill affordable housing component of the proposal, pursuant to cl 16 of SEPP ARH.

19. A consent authority must not consent to development to which Part 2, Division 1 of SEPP ARH applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area, at cl 16A of SEPP ARH.

Boarding house component of the proposal

20. Part 2, Division 3 of SEPP ARH applies to boarding houses. The division applies to land zoned R4 at cl 26. Clause 29 of SEPP ARH includes standards that, if met by the boarding house component of the proposal, cannot be used to refuse consent. The boarding house component of the proposal meets the standards for building height of 26m (LEP 2015 at cl 4.3 and Height of Buildings Map Sheet HOB_004) and solar access, as the communal room in Building A receives a minimum of 3 hours direct sunlight between 9am and 3pm on the winter solstice. Landscaped area cannot be used to refuse consent to the boarding house component of the proposal if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.

21. The proposal provides the required 11 car parking spaces in the basement for the boarding house component of the proposal, pursuant to cl 29(e)(i) of SEPP ARH.

22. Standards for boarding houses are at cl 30 of SEPP ARH. The consent authority must not consent to the proposal for a boarding house unless the following relevant requirements at subcl (1) are met:

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

23. The parties agreed that the standards are met, other than cl 30(1)(b) of SEPP ARH, as the Council’s urban design expert maintained that the boarding rooms have an area greater than 25sqm.

24. The consent authority must not consent to development to which Part 2, Division 3 applies, unless it has taken into consideration whether the design of the development is compatible with the character of the local area, at cl 30A of SEPP ARH.

In-fill affordable housing and residential apartment components of the proposal

25. In determining the components of the proposal to which SEPP 65 applies, the consent authority is to take into consideration the design quality of the development when evaluated in accordance with the design quality principles and the Apartment Design Guide (ADG). Development consent must not be granted if in in opinion of the consent authority, the development does not demonstrate that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria, at cl 30(2) of SEPP 65.

The proposal

26. The site is zoned R4 High Density Residential pursuant to LEP 2015 and the proposal is permissible with consent. Boarding houses and residential flat buildings are nominate uses in the R4 zone. The objectives of the R4 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

• To permit residential flat buildings in locations close to public transport hubs and centres.

27. The site is within an area identified as “design excellence” (Design Excellence Map Sheet DEX_004 of LEP 2015). The design excellence clause of LEP 2015, at cl 7.7, is in the following terms:

(1) The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Blacktown.

(2) This clause applies to land identified as “Design excellence” on the Design Excellence Map.

(3) Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) whether the development detrimentally impacts on view corridors,

(d) whether the development detrimentally impacts on any land protected by solar access controls established in the Blacktown Development Control Plan,

(e) the requirements of the Blacktown Development Control Plan,

(f) how the development addresses the following matters—

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements,

(x) the impact on, and any proposed improvements to, the public domain.

28. There is no floor space ratio development standard for this site.

29. The Blacktown Development Control Plan 2015 (DCP 2015) applies to all land in the Blacktown Local Government Area, at 1.1.

30. The objectives and controls for residential flat buildings are included in DCP 2015 at Part C Section 6.

31. The objectives for all setbacks, at 6.6 of DCP 2015, are to ensure that setback provide space for building separation that is equitably shared between neighbouring sites, to ensure that setbacks facilitate a consistent urban design character and protect view corridors and items of environmental heritage, to provide opportunities for deep soil landscaping around the perimeter of the site to enhance residential amenity and local character and to minimise impacts on adjacent properties, including privacy, views, solar access and visual intrusion.

32. The front setback must generally be in line with the setback characteristic of neighbouring properties, at 6.6.2(a) and the minimum front setback is 9m for 3 or more storeys, at 6.6.2(b). The minimum setback applies to sites adjoining or opposite low density residential development even if the dominant street setback is less. Basements and basement parking are not permitted into the setback, at 6.6.2(f). Buildings adjacent to lower density residential zones must increase the separation distance from the boundary by 3m.

33. The objectives for building separation are to protect visual privacy and amenity for residents and adjoining development and to minimise visual impacts of development, at 6.8.1 of DCP 2015.

34. Where more than one building is to be erected on a development site, the minimum separation distance between room types at 5-8 storeys is 18m between habitable rooms, 12m between habitable rooms and non-habitable rooms and 9m between non-habitable rooms.

35. Garbage and recycling facilities are to be provided in a manner that meets health, safety and environmental standards and promotes waste minimisation principles, at 6.10.11 of DCP 2015. Where internal collections are provided, service vehicles must be able to access the garbage and recycling collection points and provision must be made for safe manoeuvring of the vehicle on the site and egress and access should be in a forward direction. A management plan must be submitted outlining who will be responsible for maintaining and monitoring the waste management system for the development.

Public submissions

36. Three resident objectors gave evidence at the commencement of the hearing onsite. Most of their concerns related broadly to the strategic planning of the area, Government policy as reflected in the State Environmental Planning Policy (Affordable Rental Housing) 2009 and the conduct of the applicant. Their concerns regarding the proposal included that the proposal will generate additional traffic, the proposal will result in increased on-street parking in the area and the negative social impact flowing from the provision of affordable housing as a significant component of the proposal.

Expert evidence

37. The applicant relied on the expert evidence of Peter Smith (urban design), Murray Donaldson (planning), Tim Field (landscape), Dr Rachel Trigg (social planning), Phillip Cornish (stormwater) and Kasia Balsam (traffic).

38. The Council relied on the expert evidence of Matthew Sales (urban design), John Brunton (planning), Michael Maxwell (social planning), Laith Almoil (stormwater) and Tom Wheatley (traffic).

39. Only the urban design and planning experts were required to give oral evidence. The evidence of the other experts was provided in joint reports and the issues addressed by those experts were resolved by agreed conditions of consent.

Consideration

Standards for boarding houses are met by the proposal

40. There are three communal rooms included in the proposal on the Ground Floor of each building. The communal room in Building B shares courtyard with the communal room in Building C. Only the communal room in Building A receives a minimum of 3 hours direct sunlight between 9am and 3pm on the winter solstice pursuant to cl 29(2)(c) of SEPP ARH and the Council submitted that the communal room in Building B, the building which contains the boarding rooms, should be the communal room that receives a minimum of 3 hours direct sunlight on the winter solstice. In Mr Brunton’s view, the areas designated as common spaces are merely enlarged corridors and are not rooms.

41. I accept the applicant’s submission that cl 29(2)(c) of SEPP ARH is satisfied because each of the three communal rooms can be used flexibly by all the residents within the development and so the communal room in Building A is able to be accessed by the residents of the boarding rooms. I am satisfied that the three communal rooms will together provide adequate amenity for the future residents of the development and that they are designated rooms with entry doors and that they are each of a sufficient size and layout to be suitably furnished and function as communal living rooms.

40. Clause 30(1)(b) of SEPP ARH requires that no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres. The urban design experts disagreed on the area of some of the boarding rooms. In Mr Brunton’s view, some boarding rooms have a gross floor area of more than 25sqm, because Mr Brunton only excludes the area of the room allocated to the joinery unit of the kitchen and not to circulation space in front of the joinery. In Mr Brunton’s opinion, the kitchen is in a corridor into the room and the primary purpose of the corridor is to provide access to the room. Contrary to this approach, Mr Smith allows for an area 600mm deep in front of the kitchen joinery to be excluded from the calculation of floor area.

41. I prefer Mr Smith’s reasoning that an area in front of the kitchen joinery of at least 600mm deep be excluded from the calculation of the area of a boarding room because the provision excludes any area used for the purposes of private kitchen or bathroom facilities. The area immediately in front of the kitchen joinery must be devoted to the kitchen for its proper use and cannot, for example, be occupied by furniture. For this reason, the area immediately adjacent to the kitchen joinery is to be excluded from the calculation of floor area of a boarding room. This approach is consistent with the interpretation of cl 30(1)(b) of SEPP ARH in numerous Class 1 matters over many years (see, for example, Lonergan v Ashfield Municipal Council [2011] NSWLEC 1378 at [32]). I am satisfied that the requirement in cl 30(1)(b) of SEPP ARH for boarding rooms to have an area of 25sqm or less is met by the boarding house component of the proposal.

The proposal is consistent with the desired future character of the locality

44. In Mr Brunton’s opinion (Ex 6, p 7), Building A “does not provide an appropriate or comfortable transition from the low scale housing to the west and south to the apartment buildings in the north and east”. The design does not recognise the importance of the corner and does not relate to the houses to the west. “The abrupt vertical form of the building does not provide an excellent solution”. In Mr Brunton’s view, more than half the elevation of Building A is not activated because it accommodates waste management areas and it would be more appropriate for apartments to be located at ground level along the Mount Druitt Road frontage to eliminate the “unattractive black hole” in the northern elevation where the waste loading area is visually prominent for pedestrians approaching from the northern and neighbours.

45. In Mr Burnton’s opinion, the Durham Street streetscape context is single storey houses opposite and the four/five storey apartment buildings to the east, which contributes to the diverse character for the local area. The eight storey vertical forms of the buildings do not recognise the height of existing residential flat buildings or the character of the local area. The façade articulate is insufficient. “Eight storey buildings with design excellence could have a form that is compatible with the character of the local area but this would necessitate fundamental changes to the design”.

46. In Mr Smith’s opinion, the context of the site is set by the sharp transition established by the change in zone and change in height controls across Durham Street. The proposed development continues the pattern of development of residential flat buildings on the northern side of the street. Although development to the north of the site is a lower scale due to earlier planning controls, this development does not provide a ‘transition’ with respect to its relationship with the single storey dwellings on the south side of the site.

47. I prefer and adopt Mr Smith’s evidence and I am satisfied that the proposal is consistent with the desired future character of the locality. If the Council desires a transition in scale between zones, the appropriate mechanisms to facilitate a transition in scale are zonings and development standards, which are determined at a strategic planning stage. The scale of development is broadly given by the site area and a height of buildings development standard combined with a FSR development standard. It is characteristic of the Blacktown LGA that R4 zones are located adjacent to a business zone and/or a special use zone and surrounded by a R2 zone. In this way, the R4 zones, combined with a business and/or special use zone, forms a distinct and abrupt island within a sea of low density residential development. Although there are also some examples within the LGA, to the north-east of the site and far-east of the site, of a R3 zone buffering a R4 zone, the pattern of an abrupt change within the backdrop of the R2 zone to a distinct block of R4 zone combined with a local business centre is typical. The abrupt change in scale between R4 zones and R2 zones under LEP 2015, between 16m-26m and 9m height of building development standards, is not moderated by a FSR development standard for either zone. Furthermore, the R4 zone which includes the site has the greatest height, 26m, when compared to many of the R4 zones in the broad vicinity of the site which commonly have a height of buildings development standard of 16m.

48. There is no requirement for a transition in scale to be accommodated on an individual site that forms the border of the R4 zone. A FSR development standard for the R4 zone would have been mechanism to encourage a stepping in the height of development on an individual site within the R4 zone by limiting the gross floor area of the proposal. Had the Council wanted a transition in scale between the 26m of the R4 zone which includes the site and the 9m of the R2 zone to the west and south of the site, they could have introduced an area of R3 with a lower height of buildings development standard.

49. The site forms the south-western corner of the block of high density residential development given by the R4 zoning and a height of buildings development standard of 26m around the neighbourhood centre of the Mount Druitt Village on the opposite side of Mount Druitt Street. This block is relatively close to the Mount Druitt railway station and the commercial core to the north of the railway station. The R4 and B1 zones wrap around the Council owned heritage item, “The Manse”, located within a park. Having carefully considered the strategic planning philosophy that has informed LEP 2015 and the relevant controls in DCP 2015, I am satisfied that the Council envisaged that the R4 zone that includes the site be developed as a dense vertical village around the B1 zone of Mount Druitt Village and that the proposal is consistent with this vision.

50. I accept the agreement of the urban design experts that the incorporation of the projecting single storey colonnade on the Durham Street elevation better relates the proposal to the scale of the R2 Low Density Residential on the southern side of Durham Street. I am satisfied that the design of the proposal is compatible with the character of the local area, pursuant to cll 16A and 30A of SEPP ARH, because the provision of the colonnade on the southern façade of the proposal is an appropriate and sufficient gesture to the scale of residential development in the low density residential zone on the southern side of Durham Street and that the built form proposed achieves an appropriate streetscape and site scale.

51. I am satisfied that the landscape treatment of the front setback area is compatible with the streetscape in which the building is located pursuant to cl 29(2)(b) of SEPP ARH, because the landscaped setbacks to both Mount Druitt Road and Durham Street include deep soil zones and will provide abundant mounded landscaping to provide a positive contribution to the streetscape and soften the built form, similar in character to the front setback of the residential flat building to the north of the site.

52. The location of the waste loading area and vehicular entry to the basement is satisfactory because they are integrated into the building envelope of Building A and accessed on the northern façade and not on the western, street elevation. I accept Mr Smith’s evidence that if the waste collection was located in the basement, the basement would require a larger footprint or excavation of an additional level and that it is not necessarily desirable to locate apartments on the ground level fronting Mount Druitt Street because those apartments would be at street level fronting a busy road. I am satisfied, having considered all of the circumstances this proposal, that the location of the waste collection room is acceptable.

53. I accept Mr Sales’ evidence that a ride on bin tug and trolley will be necessary to move the bins from the waste rooms below Buildings B and C to the bin hoist at the western end of the basement. I accept Mr Sales’ evidence that the route through the basement from the waste room under Building C to the bin hoist is contorted. This issue is not, in my view, determinative, however it should be improved upon during the design development of the project.

54. I am satisfied that the proposal is compatible with the established local character of the locality (within the meaning of Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [23]) and particularly that the proposal is consistent with the desired future character of the locality given by the zoning, development standards and objectives in LEP 2015 and DCP 2015, which together envisage a dramatic change in character in this R4 zone.

Internal separation and layout provides acceptable amenity

55. The proposal does not meet cl 14(e) solar access, which is a standard that if met, the proposal cannot be refused on the ground of solar access, and requires a minimum of 70% of in-fill affordable housing apartments receive a minimum of 3 hours direct sunlight in living rooms and private open spaces between 9am and 3pm on the winter solstice.

56. Using the SEPP 65 guide of 2 hours sunlight, 41 of the 60 in-fill affordable housing apartments receive 2 hours of direct sunlight between 9am and 3pm on the winter solstice (DA4101-J of Ex H), which represents 68.3% of in-fill affordable housing apartments. 34 of the 55 residential apartments receive 2 hours of direct sunlight between 9am and 3pm on the winter solstice, which represents 61.8% of residential apartments.

57. Mr Smith said the plan of Building B could be reflected so that the apartments achieve numerical compliance for the in-fill affordable housing and residential apartments component of the proposal and I accept Mr Smith’s reasoning that it is preferable to locate the boarding rooms so as to achieve better solar access on the western side of Building B, because these are small rooms with limited amenity. If the floor plan of Building B was reflected, an additional 6 in-fill affordable housing apartments would probably reach the 2 hours of sunlight on the winter solstice which would represent around 78% of in-fill affordable housing apartments.

58. Balancing all the considerations relevant to this proposal regarding the planning regime, the opportunities and constraints of the site, the benefits of the proposal in terms of its provision of affordable housing and the amenity of boarding rooms and apartments; I am satisfied that the spatial planning of the proposal achieves an acceptable level of amenity for the future residents, because the boarding rooms have been appropriately located so as to have excellent solar amenity in winter and the in-fill affordable housing apartments are numerically very close to achieving 70% of apartments with at least 2 hours of solar access on the winter solstice. Those in-fill affordable housing and residential apartments on the south-eastern corners of the three buildings, which receive no direct sunlight on the winter solstice, will be compensated by having pleasant, open and distant outlooks to the south and south-east across Mount Druitt.

59. I am satisfied that the internal separation between buildings achieves acceptable amenity for the future residents. The amendments made to the proposal to delete the central apartment on the western side of Building C on the upper levels leaves Building C with two apartments on the western side which orientate north and south respectively and both have pleasant outlooks and do not depend for privacy or amenity on the separation between Buildings B and C. This feature also protects the privacy and amenity of the apartments on the eastern side of Building B. Similarly, the two apartments on Levels 1-8 of the eastern side of Building A orientate north and south respectively and this feature protects the privacy and amenity of the boarding rooms on the western side of Building B.

Setbacks to the northern boundary are adequate

60. I am satisfied that the setback to the northern boundary and particularly the north-eastern corner of the site is adequate and provides for the equitable sharing of setbacks between sites to ensure that setbacks facilitate a consistent urban design character across the sites within the R4 high density residential zone.

61. The north-eastern corner of the site includes a “step” into the site, so that the northern boundary steps closer to Building C. Building C includes a 6m setback to both northern boundaries on all levels. The western portion of Building C has a blank wall to the eastern boundary of the step and the setback is less than 6m.

62. The layout and privacy of residents in a future residential flat building on the adjoining site to the north-east will not be compromised by this proposal, because the apartments on the northern façade of Building C orientate to the north (western side) and east (eastern side) and the future development on the adjoining site will have sufficient setbacks from Building C because the site’s meet at an overlapping corner, increasing the actual diagonal distance between the buildings. Building C has a blank wall facing east at the northern end which will provide the future building on the adjoining site with the option of habitable rooms and balconies in the south-western corner.

Design excellence criteria are met by the proposal

63. I do not accept the Council’s submission and the evidence of the Council’s experts that the proposal must achieve all of the numerical design criteria in the ADG in order to achieve design excellence within the meaning of cl 7.7 of LEP 2015. The proposal has to respond to the specific constraints and opportunities of this site and give adequate regard to the generic design quality principles and the objectives specified in the ADG. This is a juggling exercise in designing any project and the architectural design and spatial layout of the proposal has successfully responded to the brief, the site’s constraints and opportunities and the requirements of the planning regime. I accept Mr Smith’s evidence that the design excellence clause does not require the development to exceed controls in the ADG or DCP 2015, but instead asks how it meets the matters listed in cl 7.7(4) of LEP 2015. I agree with his evidence that a proposal could meet or exceed numerical standards and controls and still not achieve a good design outcome.

64. I prefer Mr Smith’s evidence that the proposal provides a high standard of architectural design, detail and materials, evidenced by the balanced composition of elements within the external façade and how the façade elements, where appropriate, relate in scale to adjoining development. I agree with Mr Smith that the building presents a cohesive design language with pleasant proportions and an appropriate level of articulation for the location and budget. I accept his evidence that the form and external appearance and street frontage heights improve the quality of the public domain through providing three buildings that run perpendicular to the street, as this replicates the pattern of contemporary development already established in Durham Street. I agree with Mr Smith’s evidence that the colonnade provides a single storey element that projects from the main building forms and relates to the lower scale of development in the R2 zone across the street.

65. I prefer Mr Smith’s evidence that the location of the communal rooms fronting Durham Street provide some activation and activity to the street frontage, whilst maintaining a sense of separation and privacy for the future residents of the development. The open landscape design of the front setbacks allows the proposal to engage with the street and contribute to the character of locality.

66. I am satisfied that the proposal exhibit design excellence at the development application stage of the development, having regard to the matters under cl 7.7(4) of LEP 2015, for the following reasons:

• The proposal includes a relatively high standard of materials and finishes as shown on the material’s legend on the elevations (DA3001.1-DA3005 of Ex H).

• The form and elevations of the proposal promise a good quality development with appropriate bulk, massing and modulation of buildings and with a well-designed site layout that includes front setbacks to both street frontages that will contribute to the character of the public domain and transitional semi-public spaces and communal spaces within the development that will contribute to the amenity enjoyed by the future residents.

• The proposal does not impact on any public or private views.

• The proposal will not impact on the nearby heritage item, “The Manse” and the public park of “The Manse” will provide amenity for the future residents of the proposal.

• The proposal is consistent with the relevant objectives for residential flat buildings within DCP 2015.

• The proposal is an innovative project which will provide a mix of housing within the development, including affordable rental housing, in a location close to public transport and business centres.

• The proposal is consistent with the strategic planning vision for the locality and provides a suitable interface to surrounding development.

67. It is my view that an essential aspect of achieving a high standard of architectural design, materials and detailing in the finished product, appropriate to the building type and location, is for the proponent to engage the services of a highly competent and experienced architectural firm for the future stages of the project, including the administration of a building contract. The applicant agreed to the inclusion of a condition of consent requiring Group GSA to be retained to undertake detailed design documentation for the purposes of obtaining all required construction certificates for the development (condition 3.9.3 of the conditions of consent at Annexure A), to ensure that the vision for the design quality of the development, embodied in the development application proposal designed by Group GSA, is realised in the development.

Disputed conditions of consent

68. The applicant disputed the following conditions of consent:

Deferred Commencement Condition 1.2(e)

69. Condition 1.2(e) is in the following terms:

“The boarding rooms in the development shall be clustered on floors dedicated to that tenure type.”

70. The Council submitted that condition 4.3(a) is not addressed in the amended plans for the following reasons and should be retained:

“a. The condition requires boarding rooms within the development to be on floors where they are the sole tenure type. While the accessible boarding rooms have been relocated into the same building as the non-accessible rooms (Building B), each floor of Building B still has a mix of tenure types:

i. the ground floor has a threefold mix of strata, social housing and boarding rooms

ii. floors 1-7 have a mix of social housing and boarding rooms.

b. The condition requires ‘boarding rooms in the development to be clustered on floors dedicated to that tenure type’. Boarding rooms in this context would include the ‘communal living room’ required by both the Boarding Houses Act and the ARHSEPP. The living room is required as an integral element of a boarding house with more than 5 rooms due to the maximum size (25m2) of living space allowed to individual lodgers. While the provision of ‘building common areas’ in the applicant’s proposal is designed to support resident integration, the purpose of the ‘communal living room’ is quite different and is specifically required by the Act and SEPP as a resource for boarding house lodgers. Three of the four ‘building common areas’ are the entry corridors of each building with the only separate ‘building common area’ located in Building A where there are no boarding rooms.

Condition 1.2(e) is required as a deferred commencement condition on the basis that compliance with these conditions may need a [sic] substantial amendments to the DA plans. For example for condition 1.2(f), I am not sure if they can change all plans to have the same type of tenure type at each floor without amending the floor plans. (i.e. changing one bedroom infill units to boarding rooms (studios) on some levels). We usually impose a deferred commencements condition to review the plans if the floor plans are to be changed for example from one bedroom to studios.”

71. The applicant submitted:

“The Applicant does not agree to proposed condition 1.2(e). The Further Amended Plans locate all boarding rooms within Building B only. There is no requirement of any Act, Regulation or environmental planning instrument which requires the kind of outcome contended for by Council and accordingly, the Applicant's position is that this condition is not required or appropriate having regard to the overall design of the proposed development. The Applicant also considers that any such condition would not need to be a deferred commencement condition.”

72. I prefer and accept the applicant’s submission. The Council’s submission is correct that the imposition of the condition would require a substantial change to the layout and design of the proposal. It is not acceptable to substantially change the proposal by a condition of consent as the outcome of this condition is wholly uncertain. In response to the Council’s contentions, all the boarding rooms, except for the Manager’s room, were moved to Building B (Ex H).

73. The proposal is for a variety of housing types and this mix potentially addresses, at least to some extent, any social stigma associated with a boarding house. It would be contrary to the innovative and inclusive spirit of this development to require Building B to be devoted to the boarding house to the exclusion of other housing types in order to attempt to isolate the boarding house tenants from the residents of the rest of the development.

74. Condition 1.2(e) is deleted.

Condition 1.3

75. The deferred commencement conditions (Ex 9) specified a period of 2 years from the date of determination for evidence to be presented to the Council that would enable the Council to be satisfied that the deferred matters have been satisfactorily complied with. I raised this limited time period for satisfaction of the deferred matters with the parties during the hearing and I have amended condition 1.3 of the conditions of consent at Annexure A to a period of 5 years in order to avoid the circumstance of a lapsed deferred commencement consent in the event that the Council is not satisfied by the evidence provided (see Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 at [39]).

Condition 4.3.1 Boarding house

76. Condition 4.3.1 is in the following terms:

“The boarding rooms in the development shall be clustered on floors dedicated that tenure type.”

77. For the same reasons that condition 1.2(e) is deleted, condition 4.3.1 is deleted.

Condition 4.3.2 Amended plans

78. The terms of conditions 4.3.2(a) and (b) are:

“Prior to the issue of a construction certificate amended plans which incorporate the following changes are required to be submitted to and approved by the Private Certifier:

a) a revised basement car park design that reduces the number of car spaces and provides additional deep soil zones (being two deep soil areas, each of 24 square metres) adjacent to the property boundaries where large trees can be planted. The total number of car parking spaces for all residential units, infill affordable housing units and boarding rooms are to comply with the requirement of car parking under State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”) and State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (“SEPP 65”). However in the event the reduction in basement car parking results in non-compliance with the minimum required car parking, the number of the units [is] to be reduced to achieve the compliance with the required car parking.

b) A detailed landscape plan consistent with Sketch Option SK001 must be submitted to show the landscape treatment of the area within the Durham Street frontage where ground level car parking is removed, planting of large trees in deep soil zones created as a result of basement car parking spaces being removed, and the height and extent of walls to the street boundary being reduced.

The revised landscape plan for the site must include:

i. [Not used]

ii. mounding and intense planting within the deep soil of the building setback along Mount Druitt Road to improve the screening of the services area.

iii. removal of retaining walls and battering of the ground level within 3 metres of the property boundary in the south west corner of the site

iv. adjustments to ground levels across the site as a result of the changes to the ground level heights of Buildings B and C.

v. two deep soil areas to the south of Buildings B and C within the Durham Street frontage, each of 24 square metres with one large tree in each area, rather than one large area of 49 square metres with one large tree.”

79. The Council submitted:

“The parties’ experts had discussed that there would be more than one zone for the planting of trees, with at least two trees included. The amended plans provide one deep soil area with dimensions of 8.9 x 505 metres with one tree. The basement car park design should provide two deep soil areas within the frontage, each of 24 square metres, rather than one large area of 49 square metres.”

80. The applicant submitted:

“The Applicant does not agree to the proposed condition 4.3.2(a). The Further Amended Plans provide appropriate provision of additional deep soil planting within the Durham Street frontage (in front of Building B and the OSD tank) as a consequence of the removal of car parking spaces within the basement, and otherwise satisfy the requirements of this condition. Therefore a condition of consent is unnecessary.

The Applicant does not agree to the proposed condition 4.3.2(b). The Further Amended Plans already provide for the matters referred to in (ii) – (iv), and appropriate provision of additional deep soil planting within the Durham Street frontage (in front of Building B and the OSD tank) as a consequence of the removal of car parking spaces within the basement.”

81. I prefer the applicant’s submission. The deep soil areas in the front setbacks are shown on the Basement Level Plan DA2000 Rev R as amendments 27 and 28 (Ex N).

82. Condition 4.3.2 is amended to require a detailed landscape plan to be submitted to and approved by the Certifier, as there is not a landscape plan provided as part of the development application documentation (see condition 3.1.1 of the conditions of consent at Annexure A).

Condition 6.4.7

83. Condition 6.4.7 is in the following terms:

“Bins must be stored on the same level they are collected from.

Therefore, bins must be either stored in, and collected from, the basement, or stored at, and collected from ground level.

Bin hoists or service lifts should be avoided to reduce reliance on mechanical aides to reduce WHS.”

84. The Council submitted:

“If Council is to service this development then this condition should be retained as bin storage and collection should occur on the same level.

Council agrees to the delete of the condition if a condition is agreed to by the Applicant that requires the registration of a restriction as to user pursuant to 88B of the Conveyancing Act confirming that Council will never service the property and the cost of waste services will be the full responsibility of the Body Corporate and/or Strata Group.”

85. The applicant submitted:

“The highlighted section of this condition not agreed as the Applicant proposes waste collection from the loading area located at ground floor of Building A. Condition 13.16.5 already imposes the requirement for registration of a restriction as to user pursuant to s88B of the Conveyancing Act in the terms requested by Council. Accordingly, the Applicant submits that the highlighted section of Condition 6.4.7 can be deleted.”

86. I prefer the applicant’s submission and condition 13.16.5 is imposed on the consent. The Council’s version of this condition attempts to require the applicant to redesign the development in relation to a matter that was a contention in the proceedings. The imposition of the condition would require a substantial change to the layout and design of the proposal and it is not acceptable to substantially change the proposal by a condition of consent as the outcome of this condition is uncertain.

87. Condition 13.16.5 is retained.

Condition 6.11 Floor to ceiling heights

88. Condition 6.11.1 is in the following terms:

“All residential habitable rooms are to have a minimum floor to ceiling height of 2.7 metres. Service bulkheads are not to intrude into habitable spaces.”

89. The Council submitted:

“This is a requirement as per ADG (which automatically applies to strata units). However this should not result in all services being incorporated in affordable rental housing (infills and boarding rooms) and accordingly less ceiling height only for these units. Therefore, this condition is to remain unchanged and apply to all residential habitable rooms.”

90. The applicant seeks the following wording:

“All residential habitable rooms are to generally have a minimum floor to ceiling height of 2.7 metres. Any service bulkheads are to be localised, restricted to the minimum dimensions required to conceal services and serve only the affected apartment.”

91. The applicant submitted:

“Minor encroachments or services bulkheads are not unusual in residential flat building developments and it is commonplace to incorporate services bulkheads for bathroom, laundry and ducted kitchen exhausts. The proposed development provides for all habitable rooms to have 2.7m high ceilings with localised bulkhead only where required.”

92. I prefer the applicant’s version of condition 6.11.1 as it provides some flexibility in servicing the development. I have added boarding rooms to the wording of the condition to ensure that the requirement for 2.7m floor to ceiling heights also applies to boarding rooms.

Condition 8.9.2 On-site detention

93. Condition 8.9.2 is in the following terms:

“The engineering drawings approved under this consent are not to be used for construction. The Construction Certificate drawings shall be generally in accordance with the approved drawings however any significant variation to the on-site detention design shall require a section 96 application.”

94. The Council submitted:

“This condition is required in circumstances where there will be a new set of engineering plans required as part of the deferred commencement matters.”

95. The applicant submitted:

“The Applicant does not agree to this condition 8.9.2. It does not make sense as drafted and is unnecessary insofar as it restates the law.”

96. I prefer applicant’s submission for the reason given by the applicant.

97. Condition 8.9.2 is deleted.

Condition 8.10.2 Stormwater quality control

98. Condition 8.10.2 is in the following terms:

“The engineering drawings approved under this consent are not to be used for construction. The Construction Certificate shall be generally in accordance with the approved DA plans however any significant variation to the water quality treatment design shall require a section 96 application.”

99. The Council submitted:

“This condition is required in circumstances where there will be a new set of engineering plans required as part of the deferred commencement matters.”

100. The applicant submitted:

“The Applicant does not agree to this condition 8.10.2. It does not make sense as drafted and is unnecessary insofar as it restates the law.”

101. I prefer the applicant’s submission for the reason given by the applicant.

102. Condition 8.10.2 is deleted.

Condition 9.1.6 Safety, health amenity

103. Condition 9.1.6 is in the following terms:

“A single vehicle/plant access to the land shall be provided to minimise ground disturbance and transport of soil onto any public place. Such access shall be provided in accordance with the requirements of Appendix “F” of Council's Soil Erosion and Sediment Control Policy. Single sized 40mm or larger aggregate placed 150mm deep, and extending from the street kerb/road shoulder to the land shall be provided as a minimum.”

104. The applicant’s version of the condition is:

“No more than three (3) vehicle/plant access points to the land shall be provided (one (1) from Mount Druitt Road and two (2) from Durham Street) to minimise ground disturbance and transport of soil onto any public place. Such access shall be provided in accordance with the requirements of Appendix “F” of Council's Soil Erosion and Sediment Control Policy. Single sized 40mm or larger aggregate placed 150mm deep, and extending from the street kerb/road shoulder to the land shall be provided as a minimum.”

105. The Council submitted:

“This is a standard condition in accordance with Council’s policy which aims to avoid excessive ground disturbance. The submitted Sediment and Erosion Control Plan also shows one temporary site access.”

106. The applicant submitted:

“The Applicant proposes the above amendments to this condition as 3 vehicular access points will be required given the size of the site. The site access shown on the Sediment and Erosion Control Plan was labelled as "indicative location to be confirmed by site contractor”.”

107. I prefer the applicant’s version of the condition, because this is a large site and its corner position provides an opportunity for multiple access points during construction. Multiple access points during construction do not necessarily contribute to “excessive ground disturbance” and the risk of ground disturbance is addressed by the requirements in condition 10.1.5.

108. Condition 10.1.5 is amended to be consistent with condition 9.1.6.

Condition 13.16.5 Waste

109. Condition 13.16.5 is in the following terms:

“As the development will be serviced by private waste and recycling contractors, residents are unable to access Council’s household clean up service, or garbage and recycling service. These must be provided by the Owners Corporation. A Section 88B must be listed on the title to this effect.

Ensure the Section 88B Instrument contains the following:

• The registered proprietor of the Burdened Lot, or where the Burdened Lot includes a Strata Scheme, the Owners Corporation of the Burdened Lot:

• Is responsible for providing all waste and recycling services for the residents of the building or Strata Scheme

• Must ensure waste and recycling services for the residents of the building or Strata Scheme are to be provided and undertaken by a private waste and recycling contractor (not Blacktown City Council);

• Must not access Council’s household clean up service or waste/recycling service.

• Indemnifies Council in respect of any claim regarding the non-provision by Blacktown City Council of waste services.”

110. The Council submitted:

“The references to ‘household clean up service’ must be retained. Council does not split waste services so providing a household clean up service without the waste and recycling collection service is not an option.”

111. The applicant submitted:

“The Applicant agrees to this condition with the exception of the third bullet point. As a ratepayer, the Applicant considers that it should continue to have access to Council's household clean up service, notwithstanding the use of a private contractor for garbage and recycling collection. Council's website identifies that 12 separate household clean-up collections are provided per year and that residents can book a household collection at no fee.”

112. I prefer the applicant’s submission and the third bullet point is deleted. All councils provide a clean-up service to their constituents for the disposal of larger household items that would not normally fit into the standard rubbish bin and items not accepted as part of the weekly domestic waste collection. A clean-up service is a separate service from the weekly domestic waste collection service. The Council’s website states that the Council offers a “household clean up service to all Blacktown City residents” [italics added]. As the future residents of the development will be Blacktown City residents, they are entitled to the free service.

Condition 14.4.4 Waste management and collection

113. Condition 14.4.4 is in the following terms:

“Bins must be stored on the same level they are collected from.

• Therefore, bins must be either stored in, and collected from, the basement, or stored at, and collected from ground level.

• Bin hoists or service lifts should be avoided to reduce reliance on mechanical aides to reduce WHS.”

114. The Council submitted:

“If Council is to service this development then this condition should be retained as bin storage and collection should occur on the same level.

Council agrees to the delete of the condition if a condition is agreed to by the Applicant that requires the registration of a restriction as to user pursuant to 88B of the Conveyancing Act confirming that Council will never service the property and the cost of waste services will be the full responsibility of the Body Corporate and/or Strata Group.”

115. The applicant submitted:

“Condition not agreed as the Applicant proposes waste collection from the loading area located at ground floor of Building A. Condition 13.16.5 already imposes the requirement for registration of a restriction as to user pursuant to s88B of the Conveyancing Act in the terms requested by Council. Accordingly, the Applicant submits that this condition can be deleted.”

116. I accept the applicant’s submission. The Council’s version of this condition attempts to require the applicant to redesign the development in relation to a matter that was a contention in the proceedings. The imposition of the condition would require a substantial change to the layout and design of the proposal and it is not acceptable to substantially change the proposal by a condition of consent as the outcome of this condition is uncertain.

117. Condition 14.4.4 is deleted.

Conclusion

118. The proposal is an innovative and well-designed development that will provide a variety of housing types within a high density residential environment close to public transport and business centres. Having had regard to all of the evidence before me, I am satisfied that it is appropriate to grant development consent to the proposal.

Orders

119. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on amended architectural plans listed in condition 1 of the conditions of consent at Annexure A.

2. The Applicant is to pay the Respondent those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. SPP-18-01556 for a mixed use development comprising three 8 storey buildings containing 60 affordable housing apartments, 54 boarding rooms including a manager’s room and 55 residential apartments, is approved, subject to the conditions of consent at Annexure A.

5. The exhibits, other than Exhibits 2, A, H and N, are returned.

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Susan O’Neill

Commissioner of the Court

Annexure A (717 KB)

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Decision last updated: 23 January 2020