Australex Group Pty Ltd v Fairfield City Council

[2022] NSWLEC 1685

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australex Group Pty Ltd v Fairfield City Council [2022] NSWLEC 1685

Hearing dates:

29 and 30 September 2022

Date of orders:

09 December 2022

Decision date:

09 December 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Development Application No. 134.1/2021 for a two-storey boarding house comprising 12 double occupancy boarding rooms, including one boarding manager room at 89 The Promenade, Old Guildford (Lot 3 DP 35091), is approved subject to the conditions in Annexure A.

(3) Exhibits are retained with the exception of the following which are returned: Exhibits 2, 3, 4, 5, 6, 7, 8, E, F, H and J.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – interpretation of standard definition of gross floor area – contravention of floor space ratio standard – built form character – acoustic considerations – vehicle access considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 1.4, 8.7, 8.15

Fairfield Local Environmental Plan 2013, cl 4.3, 4.4, 4.5, 4.6

Land and Environment Court Act 1979, s 39

Standard Instrument (Local Environmental Plans) Order 2006)

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30, Div 3

State Environmental Planning Policy (Housing) 2021

Cases Cited:

Britely Property Pty Ltd v Randwick City Council (No 2) [2020] NSWLEC 1389

Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289

Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000

Cranbrook School v Woollahra Council [2006] NSWCA 155

GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521

Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009

HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006

Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Australian Building Codes Board, National Construction Code

Fairfield Development Control Plan 2013

Fairfield Local Planning Panel

Category:

Principal judgment

Parties:

Australex Group Pty Ltd
Fairfield City Council

Representation:

Counsel:
J Lazarus SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/69104

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 134.1/2021 (DA) by Fairfield Local Planning Panel. Fairfield City Council (Council) is the respondent to the appeal by virtue of s 8.15(4) of the EPA Act.

2. The DA, as amended, seeks consent for the construction of a two-storey boarding house at 89 The Promenade, Old Guilford, legally described as Lot 3 in Deposited Plan 35091 (site).

Site and setting

3. The site is regular in shape, having a depth varying between 49.75m (east)- 50.57m (west), and a width varying between 16.77m (north) – 16.69m (south). The site has a total area of 835.5 m². The site is currently vacant with no significant vegetation.

4. The site environs comprise a mixture of detached single and double storey dwellings of various ages, styles and materials. A small local shopping area is located close to the site to the south-west. Springfield Park, of considerable size, is located to the near north-west of the site.

Proposal

5. The proposed boarding house would accommodate 12 double occupancy boarding rooms over two levels, including one boarding manager room. Each room would accommodate an ensuite bathroom, washer/dryer and kitchen. There would be a single communal living room located on the ground floor, with covered communal areas on either side of the living room.

6. Vehicle access would be via a single lane driveway adjacent to the western boundary providing access to the basement containing six car parking spaces, three motorcycle spaces, and storage space. The ground level would also accommodate waste storage area and bike storage. Site landscaping details are included in the application.

Statutory setting

7. The site is located within the R2 – Low Density Residential zone under Fairfield Local Environmental Plan 2013 (FLEP). While boarding house development is not permissible within the zone, the otherwise repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) continues to apply. This is because the savings provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) make clear that SEPP Housing does not apply to a development application made, but not yet determined, on or before its commencement date. There is no dispute that the DA was lodged prior to 26 November 2021, the commencement date of SEPP Housing, and therefore that SEPP ARH applies. Boarding house development is permissible with consent within the subject R2 zone under Div 3 of SEPP ARH.

8. The applicable Floor Space Ratio (FSR) control under cl 4.4 of FLEP is 0.45:1. While it is a point of dispute between the parties, it will be seen that I agree with Council that the proposal would contravene this standard.

9. There are no other development standards at issue and I note that I am satisfied in regard to each of the matters listed at cl 30(1) of SEPP ARH (ie in regard to standards for boarding houses).

Issues

10. In closing submissions, Council summarised the remaining issues in dispute as follows:

• Floor space ratio contravention and related issues

• Development character and built form

• Acoustic impacts

• Driveway access and parking.

11. I will deal with these in turn, albeit I consider the second and third matters together, as they are inter-related.

12. The experts assisting with evidence in the proceedings were as follows:

Name	Expertise	Engaged by
P Bull	Town planning	Applicant
S McDonald	Town planning	Council
P Thalis	Design/architecture	Applicant
P Gould	Acoustics	Applicant
R Haydon	Acoustics	Council
V Doan	Traffic	Applicant
S Rajathurai	Traffic	Council

Floor space ratio considerations

Setting

13. A central issue in this matter is whether there is compliance with the applicable FSR development standard under cl 4.4 of FLEP. The applicant’s evidence is that the proposal’s FSR is 0.44:1, thus meeting the standard. Council’s evidence is that the proposed FSR is 0.59:1. Under cl 4.6 of FLEP, there can be power to grant consent to a proposal, notwithstanding contravention of a development standard, providing certain jurisdictional thresholds are met. In this instance, and notwithstanding its technical position on the question, the applicant has opened up a capacity for engagement of this power by lodging a written request seeking to justify the contravention of the development standard under cl 4.6(3) of FLEP.

Particulars

14. Under cl 4.5(2) of FLEP, FSR is defined as follows:

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

15. Thus, in order to determine FSR, it is necessary to determine Gross Floor Area (GFA). The actual calculations are not at issue between the experts. The point of dispute goes to the interpretation of the definition of GFA under the Dictionary to FLEP, and what areas should, and should not, be included.

16. The definition of GFA under FLEP’s Dictionary (consistent generally with the numerous local environmental plans made under the Standard Instrument (Local Environmental Plans) Order 2006) is as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

(a)  the area of a mezzanine, and

(b)  habitable rooms in a basement or an attic, and

(c)  any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes—

(d)  any area for common vertical circulation, such as lifts and stairs, and

(e)  any basement—

(i)  storage, and

(ii)  vehicular access, loading areas, garbage and services, and

(f)  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)  any space used for the loading or unloading of goods (including access to it), and

(i)  terraces and balconies with outer walls less than 1.4 metres high, and

(j)  voids above a floor at the level of a storey or storey above.

17. The design in the proposal before me is irregular, involving what might be thought of as three principal, and separate, two-storey elements. These are a northern element closest to the road, a southern element to the rear and a central somewhat smaller element. This can be interpreted from Figure 1 which is introduced below. These principal two-storey elements are interlinked with horizontal accessways (some of which are more internalised, some of which are more external), above a single basement garage/utilities area, which sits under much of the proposed above-ground built form.

18. There were useful figures provided to the Court which allowed an understanding of the different opinions in the GFA interpretation debate. I will particularly reference Ex E, which I reproduce in part below.

Figure 1 – Gross Floor Area – areas in dispute (Source: Ex E)

Substance of disagreement

19. In principle, I can disaggregate the dispute between the experts into two related points of interpretation. Each involve the chapeau of the GFA definition, as cited above (at [16]). The first surrounds the question of the interpretation of “building” at the opening to the chapeau. This point of interpretation is particularly relevant to whether certain, what I would ultimately describe as, considerably unenclosed horizontal access areas between the three building elements, should count as GFA. The second point is in regard to the interpretation of the chapeau to the GFA definition’s phrasing “measured from the internal face of external walls” and “measured at a height of 1.4 metres above the floor”. The main practical query here related to whether certain corridors or breezeways, with a significant degree of enclosure, should count as GFA. It is this second point which was the subject of considerable submissions by the parties, who referenced a number of authorities with differences in interpretative findings.

Authorities

20. In the matter of the interpretation of GFA generally, it was put to me by the applicant that the “lead”, or most followed, decision in regard to the interpretation of GFA, and the second point of interpretation I nominate above in particular, is that made in GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 (Danks). However, other judgments of this Court were put to me, in submissions by the Council, where decisions at least to an extent inconsistent with Danks were made. Here I note that different facts apply in each of the circumstances, but my interpretation is that the decisions do take different positions in regard to the legal interpretation of the GFA definition’s phrasing “measured from the internal face of external walls” and what constitutes external walls as a factor in the interpretation of GFA, specifically in regard to partially open corridors or similar configurations.

21. The finding of Danks was that where communal corridors were open at both ends then this area of corridor would not form part of GFA, paraphrasing from Danks at [31]:

“….The definition of GFA … requires the floor area of each level to be measured from the internal face of external walls, measured at a height of 1.4m above ground. The corridor is contained on either side by the external face of walls that form the external walls of the units on either side of the corridor … . The external face of the wall cannot be characterised as an internal face, because an external wall must provide the weatherproofing that maintains the internal wall or face as a dry wall, in other words, an external wall has a specific function that distinguishes it from an internal wall. In full brick construction, where the wall forms the façade of a building, the outer skin of brickwork is wet during inclement weather and the purpose of the cavity between the brickwork skins is to maintain the inner or internal wall as dry. The internal face of an external wall in the definition of GFA must refer to the interior surface of the wall that forms the façade or exterior of a dwelling, being the wall that weatherproofs the interior space, and cannot refer to the exterior surface of the outer wall. Therefore, the sum of the floor area of each floor of a building measured from the internal face of external walls requires the floor area that is included in the GFA calculation to be internal floor space. The corridor will be wet during inclement weather by rain blown along the gap, the walls containing the corridor function as external walls and so the corridor cannot be characterised as internal floor space.”

22. I understand the essence of the finding to be that because of the corridor openings at either end (which include openings to weather), there is a need for built construction with the function of external walls along the corridor. In turn, as the side walls of the corridors would undertake the specific function of external wall (distinguished from that of internal walls, as a point of measurement for the purposes of the definition), then the encompassed floor area should be considered as external space and not included in GFA. The Danks finding was confirmed by the same Commissioner in HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243 (HPG) [30]-[39]), and certainly other Commissioners have followed this judgment. In HPG at [35] the Commissioner noted there was no definition of “external wall” in the relevant local environmental plan and referenced the definition of “external wall” in the National Construction Code (NCC), cited as follows: “an outer wall of a building which is not a common wall”, concluding that (HPG at [35]):

“…An outer wall of a building is either the façade that forms the building envelope or an external wall that is the threshold between an internal room and an external space.”

23. It is noteworthy that in HPG at [33], the Commissioner gave some attention to the limits to the relationship between FSR as a development standard and control of “volume of the building envelope”:

“I agree with Mr Wells’ sentiment that the GFA of the breezeways contribute to the volume of the building envelope, however, the calculation of GFA must be consistent with the definition of GFA in the Dictionary of LEP 2012. Floor space ratio is an inexact measure of a building’s volume, because it excludes all the volumes of all areas identified in the definition of gross floor area at (d)-(j), including internal voids and inset (recessed) balconies with an outer wall less than 1.4m high.”

24. Consideration was also given to a practice (seen as “cynical” by the respondent council in that case) of “creating horizontal circulation spaces in multi-residential developments which are external spaces by dint of the deletion of a window in an opening or an open-ended corridor, in order that the spaces do not contribute to the calculation of the GFA”, with the Commissioner suggesting that (HPG at [38]):

“…The definition of GFA should be clarified or amended so that common horizontal circulation in multi-residential developments, such as corridors or breezeways, is explicitly included in the definition of GFA.”

25. Commissioners have come to different conclusions on the question of the treatment of horizontal communal corridors and, relatedly, semi-enclosed balconies (and whether the enclosures should be adjudged as “outer walls less than 1.4 metres high” under paragraph (i) of, in this case, FLEP’s GFA definition). I note that in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 (Landmark), a finding was made that partially open breezeway or corridor areas were “within the internal face of external walls of the building” and thus were included within GFA (at [59]-[60]). This was followed in Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289 , where corridors with louvred openings at the end walls were included as GFA, a factor here was that the louvred openings where considered “proportionally insignificant” (at [60]). There was also a finding in Britely Property Pty Ltd v Randwick City Council (No 2) [2020] NSWLEC 1389 that a lobby “wholly within the envelope of the building” but in part enclosed by louvred screens should be included within GFA (at [56]). A partially related point is that a “perforated metal screen” greater than 1.4m in height was found to form the “outer wall” to balconies and not excluded from GFA in Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000 at [46]. In Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009 (Haralambis), when considering whether openable glass louvres above solid balustrades effected an external wall, like in HPG the Commissioner also noted the lack of definition to “wall” and “external” in the related local environmental plan and called on Macquarie Dictionary definitions (which remain current) as follows (paraphrasing from [41]-[43]):

…consistent with the principles of statutory construction, the natural and ordinary meaning should be used. The Macquarie Dictionary defines "wall" to include the following meaning:

Noun 1. an upright structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry.

…

The Macquarie Dictionary defines "external" to include the following meanings:

Adjective 1. of or relating to the outside or outer part; outer 3. situated or being outside something;

26. The Commissioner went on to conclude (Haralambis at [44]):

The "walls" of the balconies relate to the outside and form the outer part of the building. They are therefore external walls. While they may not be structural or meet acoustic or fire requirements, I do not accept that this is necessary in determining whether the wall is external for the purpose of GFA and FSR. …

Comity and Commissioner judgements in Class 1 of the Court’s jurisdiction

27. In Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006 (Intrapak) [90]-[107], after consideration of various judicial authorities, some attention was given to the question of comity in Class 1 matters, including in regard to decisions by Commissioners of the Court. What I take from the Intrapak examination (e.g. at [105]) is that while “there is no obligation to follow, or even refer to and take into account, a decision which is a purely merit based decision by another Commissioner (or judge)”, there is a higher bar in relation to findings on questions of law or mixed law and fact, such as this interpretive question before me here. The higher bar would establish that previous decisions on questions of law or mixed law and fact cannot be ignored, rather there is a need to directly consider such decisions and directly establish the correctness of the (proposed) decision if a different conclusion is reached.

Consideration

28. Mindful of the above, with respect to the proposal before me it is necessary for me to make a finding as to whether, what I am describing as, the generally internalised communal corridors, with open ends (to a greater or lesser extent), constitute GFA. With great respect, I cannot concur with the position adopted in Danks and those that followed it. My conclusion is more aligned with Landmark. There are two related points to my reasoning.

28. My first point of reasoning is concerned with the structure of the definition of GFA under FLEP’s Dictionary, a matter warranting direct attention in my view in relation to the interpretive question (Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 at [35]). In my opinion, in a structural sense, the definition can be understood to have four parts. The first and second parts are within the chapeau to the definition. The third and fourth parts are at pars (a)-(c) and (d)-(j) of the definition, respectively.

29. The first part of the definition, in its clear expression, establishes that GFA means the sum of the floor area of each floor of a building. The second part describes from where measurement is to be undertaken (reference, relevantly, the definition’s phrasing “measured from the internal face of external walls” and “measured at a height of 1.4 metres above the floor”). The third part clarifies areas of inclusion. The fourth part clarifies areas of exclusion.

30. I see the first part as the primary element of the GFA definition. The points of central attention when determining GFA are first in understanding the building, and then the area of floor within the building at each level. The second part of the definition seems to me to be simply concerned with how to measure, nothing grander would be taken from a plain reading. It indicates that in determining floor area, you measure from the internal face of external walls of the building. This is a practical point and makes clear for example that it is wrong to measure from say skirtings, which usually partially cover the area of floor, or the external wall, which might be a particular point of argument in some building configurations, particularly given that building bulk (see below in regard to my second point of reasoning) would generally be perceived on the basis of the external wall form. Measuring at a height of 1.4 metres above the floor is of a similar vein, relating directly to the contextual objective of understanding building bulk as perceived (again see below in regard to my second point of reasoning).

31. The reference to measuring to external walls here (“the internal face of external walls”) should be seen as a helpful secondary factor in understanding how to measure the floor area of a building, rather than a qualification of the primary element of the definition. Not much further explanation is required in regard to the third and fourth parts of the definition now, except to note, directly relevant to the question of horizontal communal corridors, that while “area for common vertical circulation” (my emphasis) is excluded from GFA under the fourth part, there is no similar exclusion in regard to common horizontal circulation areas.

32. My second point of reasoning, to align me with Landmark and Haralambis rather than Danks, is concerned with reading the definition in its context. Commentary from McColl JA in Cranbrook School v Woollahra Council [2006] NSWCA 155 at [39] was useful to me here, that:

“…the meaning of a definition turns on the context in which it appears, considered as a whole”.

34. It seems to me that FLEP’s Dictionary definition of GFA is intended to help with the application of the FSR development standard at cl 4.4 of FLEP. As is common, the FSR development standard clause objectives at cl 4.4 are concerned, among other things, with the control of building density (relating to say intensity or concentration of activity) and bulk (concerned with building massing and of relevance to visual presentation). Generally, building density and bulk will relate to the floor area of buildings, as enclosed by the roof and walls on the outside or outer part of the building (reference Harambalis [41]-[44], as cited above above), but bearing little relationship to how the walls are constructed or function (for example in terms of water proofing and like requirements for generally internal corridors).

35. It is important that the words in definitions of this kind be used with precision, but it is also appropriate to have regard to an assumption of reasonableness and intent. That is to ask what message is the definition attempting to convey with the words as used. While there will sometimes be areas of indistinction as to points of measurement, the essential point here is that GFA comprises the sum of the floor area of each floor of a building. I am aware that there is a definition of “building” at s 1.4(1) of the EPA Act (referenced in the Dictionary to FLEP), while highly relevant to certain statutory area, it is not particularly helpful here. The natural and ordinary meaning of the term is apposite. The online Macquarie Dictionary definition of "building" relevantly provides as follows:

“1. a substantial structure with a roof and walls, as a shed, house, department store, etc.”

36. The confines of a building (or structure) for this purpose can be understood as the built structure generally within roof and the outer walls of the building, albeit that there may be articulation here and there that need to be taken into account. While I acknowledge Danks takes a different view, windows and openings to horizontal communal corridors (louvred or otherwise, and whether or not associated internal corridors require waterproofing or otherwise) would both be seen the same way in my construction. Neither should be seen as obstructing (or thwarting) the interpretation of the confines of the building, generally defined by the line of outer walls. At the primary level, the floor area for each level is established by the confines of the building itself. Then this primary understanding is translated into a measurable factor by the second part of FLEP’s GFA definition. There are some points of clarity in regard to inclusions and exclusions in what I call the third and fourth parts of the definition. Clearly, there is no accounting for proportionately small openings in otherwise enclosed communal corridors in either the third and fourth parts of the definition, nor is there any consideration of (internal v external) wall construction particulars specified in the definition. In my view, the issue of how the walls function, also, does not relate to the underlying contextual question of the interpretation of building confines or building density or bulk.

37. In turn, I conclude that it would be at odds with the GFA definition, read in whole and in context, to exclude lengths of internal communal corridors which happened to have openings, at one or both ends, to the otherwise generally perceived building (and thus floor area) confines. I am more aligned with the views expressed in Landmark and, again respectfully, disagree with Danks and those judgments following it on this point.

Findings on GFA and application of the FSR standard with respect to the subject proposal

Inclusion of certain corridors with open ends in GFA

38. The above finding, of itself, means that the whole of Area 1, as shown in Ex E (and reproduced in Error! Reference source not found.) plus that portion of Area 6 on the first floor which is located immediately above Area 1, would be included as GFA. The finding also means that portions of Area 5 on the ground floor plan and Area 6 immediately above would also be included within GFA.

39. Because the applicant’s calculation of FSR is only some 4m² under the FLEP development standard (Ex K pp 6-7), the inclusion of the areas nominated above in GFA which total considerably greater than 4m² (and which were not included in the application’s calculations) establishes a contravention of the FSR standard.

Other considerations

40. I note, in a sense in passing, that evaluation of whether the rest of the disputed areas as shown in Ex E (and reproduced in Figure 1) should be included in GFA relates considerably to the question of what constitutes “building” so far as the first part of the chapeau of the GFA definition is concerned. In my view, the extent and scale of horizontal and vertical corridors within the proposal, mean that despite its three principal built elements (see [17] and Figure 1), the proposal can be understood as a single building (as agreed by the experts). However, what is relevant to me here is the external wall of the “building” above the basement. It is this external wall which establishes the base for understanding internal face for measurement purposes. The external wall of the building is quite intricate, following the massing of the above ground structure (and, as it happens, representing building’s apparent bulk). In turn, it would seem to me that Areas 4 and 7, as marked in Figure 1, would be excluded from GFA calculations, while Area 2 (a non-basement waste and store area clearly within the building confines) would be included (in keeping with my agreement with Haralambis at [41]-[44]).

41. There is no need for me to go further on my own findings in regard to inclusions and exclusions with respect to GFA for the subject proposal. The setting is one where there is a breach of the FSR development standard, and the applicant has called upon cl 4.6 of FLEP to seek approval notwithstanding the contravention. A written request has been lodged on the assumption of the position adopted by Mr McDonald (ie, including each of the areas marked in Ex E). It would be impractical and serve no benefit in my view to require a written request under cl 4.6(2) of FLEP to align with my interpretation of the building GFA after completion of the hearing and reserving a decision. I will now turn directly to the contravention.

Contravention of the FSR development standard and whether cl 4.6 requirements satisfied

42. Under cl 4.6(4)(a) of FLEP, a consent authority must form two positive opinions of satisfaction if the facilitative powers of cl 4.6(2) are to be enlivened. The first opinion of satisfaction, which I will attend to immediately below, is that a written request from the applicant has adequately addressed the matters required to be addressed by cl 4.6(3) of FLEP. These matters are:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

43. As indicated above, mindful of cl 4.6(2) of FLEP, the applicant provided a written request seeking to justify the contravention. The written request was prepared by Civic Assessments and is dated 28 September 2022 (Ex K).

First opinion of satisfaction

Whether compliance unreasonable or unnecessary in the circumstances of the case

44. The written request uses the first of the “ways”, offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, seeking to demonstrate that as the proposal would achieve the objectives of the standard anyway, requiring compliance is not reasonable or necessary.

45. The objectives of cl 4.4 are as follows:

(a) to provide an appropriate density of development consistent with the established centres hierarchy,

(b) to ensure building density, bulk and scale make a positive contribution toward the desired built form as identified by the established centres hierarchy,

(c) to control building density and bulk in relation to the site area and within building envelopes to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality,

(d) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing, and are not likely to undergo, a substantial transformation,

(e) to reduce the visual impact of development by limiting floor space to ensure that a building’s bulk and scale are appropriate for the site,

(f) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain,

(g) to establish the maximum development density and intensity of land use, having regard to the availability of infrastructure and generation of vehicular and pedestrian traffic,

(h) to facilitate design excellence by ensuring the extent of floor space in building envelopes leaves generous space for the articulation and modulation of design,

(i) to provide an appropriate correlation between the size of a site and the extent of any development on that site.

46. I accept the position argued in the written request that Objectives (a) and (b) are not relevant as they apply to “centres” and thus not the site or its immediate environs.

47. The written request argues the proposal achieves Objectives (c), (d) and (e), which have some points of commonality in regard to visual relationship of the proposal with its setting, on a number of fronts. On the question of compatibility with the bulk and scale of existing and desired future character of the locality, the written request points to the fact that the proposal readily meets the applicable building height control (proposal has a maximum height of 8m whereas the control is 9m under cl 4.3 of FLEP) and provides evidence that the proposed building setbacks are consistent with the prevailing front and rear setbacks of adjoining buildings. Attention is drawn to the fact that, of relevance to visual effects, the proposed building would be “broken-up with various courtyard spaces”. The fact of the permissibility of the proposal is also argued as establishing this form of development is in character. Evidence is provided that the character of the area is undergoing transformation with “existing single storey post-war housing (being) redeveloped to bulkier 2-storey dwellings houses and attached dual occupancies” (written request p 12). A detailed locality analysis is provided as evidence in support of this point (written request Figure 8 and Attachment A), and the suggestion of the varied character of the locality.

48. I note that Mr McDonald had indicated that there was generally compliance with the 0.45:1 FSR standard with each of the recent redevelopments. However, the written request argues that (p 13):

“Some of these buildings present as bulkier structures to the proposed building for the reasons outlined below.

Often minimum 900mm side setbacks are provided. A row of 2-storey buildings with 900mm side setbacks and roof eaves extruded into this setback area creates a visually bulky streetscape.

Often the front setback areas are concreted hardstand parking or driveway areas with minimal landscaping. The subject building’s front setback area will be mostly landscape area that softens the visual appearance of the building.

Most of these buildings have enclosed ground floor garaging (these spaces add to the bulk of the building but on review of these applications the Council has applied the GFA definition appropriately and not counted these areas as GFA). A fully enclosed ground floor garage is a bulkier structure than an open balustraded corridor.”

49. Reference is also made to the architectural qualities of the proposed design. These points are effective in demonstrating that the proposal achieves FSR Objectives (c), (d) and (e) notwithstanding the contravention.

50. Objective (f) is concerned with minimising adverse effects on adjoining properties and the public domain. With respect to the public domain, I accept that the arguments put effectively with respect to Objectives (c), (d) and (e) also apply with the public domain concern of Objective (f), and that the proposed front landscaping is a comparative positive in terms of streetscape presentation to public domain. In respect to neighbours, the written request refers to the proposed 1.5m side building setbacks, and 9m rear yard setback comprising deep soil and “contiguous landscape” (written request Figure 7). Reference is also made to the proposed Plan of Management and requirements to comply with the submitted Acoustic Report is provided with this DA. These points are effective in demonstrating that the proposal achieves FSR Objective (f), notwithstanding the contravention.

51. Objective (g) relates density and intensity of use to availability of infrastructure and generation of vehicular and pedestrian traffic. I accept the written request commentary that the site is within a serviced residential area and is well located with respect to public transport (1.3km from Yenora Station, 600m from “high frequency” Woodville Road bus routes and 400m from a local bus service). A small local commercial centre (including supermarket) is about 150m from the site and there is a large park nearby, and employment areas are within walking distance. While there are six carparking spaces provided, the suggestion is that the practical, walkable access to infrastructure is readily available and there is a capacity to accommodate vehicular and pedestrian traffic. These points are effective in demonstrating that the proposal achieves FSR Objective (g), notwithstanding the contravention.

52. Concerning design excellence and Objective (h), the written request argues that the proposal is well articulated and modulated in its design. I agree with this argument that, notwithstanding the contravention, the extent of floor space does facilitate design excellence by leaving generous space for the articulation and modulation of design. The written request arguments are effective in demonstrating that the proposal achieves FSR Objective (h), notwithstanding the contravention.

53. The written request argues, successfully in my view, that the other factors outlined above indicate that the proposal provides an appropriate correlation between the size of a site and the extent of development proposed on the site. The written request arguments are effective in demonstrating that the proposal meets FSR Objective (i), notwithstanding the contravention.

Whether sufficient environmental planning grounds

54. The written request raises a number of points as sufficient planning grounds to justify the contravention. Firstly, three points are noted (written request p 17):

“(1) that the proposal is otherwise compliant with planning controls and objectives,

(2) that the proposal would meet a “vital need” for small rental dwellings, and as such is in alignment with a core objective of the R2 zone, and

(3) the proposal would add to the urban fabric by contributing a building of high design quality.”

55. The written request also indicates that the proposal would be poorer for the exclusion of what it terms the “disputed areas” (i.e., the points of difference between the applicant and Council with respect to GFA inclusions). This point links, I think, to the written request’s drawing in of certain nominated objects of the EPA Act (at s 1.3). Of particular note for me are the nominated objects (c), relating to the promotion of affordable housing, and (g), relating to the promotion of good design and amenity.

56. There was some attention in submissions from the parties to Court findings that “the focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole” (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [24]). As an FSR contravention, it is not particularly practical or helpful to pinpoint the relevant “aspect or element”. How I would examine it is to understand that strict compliance would bring about a loss of floor area which can translate to reduction in the supply of boarding room area or amenities.

57. The contravention is justified on environmental planning grounds because of the evidence of need for this form of housing. That is, on supply and demand for anticipated household types for Fairfield LGA and the expected growth in demand for single person households and the mismatch of this demand with supply (written request p 21). This point lines up with s 1.3(c) of the EPA Act. I also agree that the proposal exhibits particular design qualities which are not common in boarding house development, which have come before me at least. These qualities relate to externalities (visual presentation through built form articulation and landscaping and physical relationships with neighbours); but also the internal amenity for occupants (including in regard to private and communal outdoor areas, internalised landscaping and airflow). I agree with the written requests arguments that the extra floor area is justified on environmental planning grounds because to draw back from it would detract from the overall design, which for me is in alignment with s 1.3(g) of the EPA Act.

55. On the basis of the above, I am satisfied in regard to the first required opinion of satisfaction. That is that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) of FLEP.

Second opinion of satisfaction

59. The second positive opinion of satisfaction relating to the enlivening of the facilitative powers of cl 4.6(2) of FLEP are that the proposed development will be in the public interest because the development is consistent with the objectives of the contravened development standard and the relevant zone. This finding of satisfaction is a direct one for the consent authority, or in this case the Court.

60. I am satisfied that the development is consistent with the objectives of the contravened development standard based on the reasons outlined in the written request and my conclusions in regard to them.

61. I note the applicable R2 zone objectives 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.”

62. It is only the first of these objectives which is applicable. I am satisfied that the development is consistent with this objective. As indicated at [57], and further elaborated upon at p 21 of the written request, it is clear that there is a genuine need for housing of this form in this, otherwise, low density residential environment.

63. With the above findings, the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. I am satisfied in regard to the second required opinion of satisfaction.

Conclusion in regard to development standard contravention

64. On appeal, the Court has the power under cl 4.6(2) of FLEP to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act), but should still consider the matters in cl 4.6(5) of FLEP. I have considered these matters and find nothing of significance arises.

65. In accordance with the above findings, the conditions which are required to be satisfied, before the permissive power in cl 4.6(2) of FLEP is enlivened, have been met. Consequently, there is power for the Court to grant consent to the proposal notwithstanding the contravention of the FSR standard at cl 4.4 of FLEP.

Character, built form and acoustics

66. Council contends the proposed development is inconsistent with the existing and desired future character of the area. Council draws my attention to cl 30A of SEPP ARH which requires a consent authority to take into consideration whether:

“… the design of the development is compatible with the character of the local area”.

67. Council notes that this proposal would now be prohibited development, under SEPP Housing, as the site does not meet the definition of “accessible area” in the Dictionary to SEPP Housing.

68. Chapter 10.7 of Fairfield Development Control Plan 2013 (FDCP) is concerned with boarding house development. The objectives at cl 10.7 of FDCP are:

a) To ensure that the location of boarding houses has due regard for compatibility with neighbourhood character

b) To minimise adverse impacts on neighbourhood amenity

c) To provide controls additional to those contained within State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP)

d) To ensure an acceptable level of amenity in boarding house premises to meet the needs of residents.

69. Among other provisions, controls relating to “built form and character” include that (cl 10.7.2 of FDCP):

New boarding house development shall be designed to reflect the predominant built form and design elements of the surrounding locality and streetscape.

…

70. According to Council, given the predominant development type in the local area is single detached dwellings, cl 10.7.1 makes the controls in ch 5A of FDCP, which otherwise apply to dwelling houses, applicable to new boarding house development (where such controls do not conflict, relevantly, with SEPP ARH).

71. Setting aside matters relating better to the questions addressed previously in regard to FSR, I understand the key concerns of Council are in regard to “uncharacteristic” side elevations (including external lift and stairs), elevated walkways and rear balconies and side fencing exceeding 1.8m and up to 2.3m in height.

72. Certain aspects of the proposal give rise to amenity impact concerns relating to acoustics, including the fact of the elevated walkways and the rear balconies mentioned above. The key concern in regard to acoustics seems to be that an agreed set of acoustic requirements would need to be strictly complied with for the development to be satisfactory.

Consideration

73. While it would go too far to say that the proposal has been designed to reflect the “predominant built form” (cl 10.7.2 of FDCP), the prevailing form is changing and it does seem that the proposal has had due regard to the question of “compatibility with neighbourhood character” (cl 10.7 of FDCP). I find the proposal to be acceptable on character and built form grounds.

74. I accept Mr Bull’s evidence that there are examples of recent buildings in the area which are individualistic and would be thought of as visually bulky, and other than architectural showpieces. However, it is not this factor that persuades me in regard to the suitability of the proposal. Moreso, I see the proposal as a purposeful design that provides for this permissible form of accommodation (meeting a housing need in accord with zone objectives) while also, and distinctively: (1) providing for notable quality to the living spaces available for future residents while also (2) providing for sensitive design and site management features aimed at fitting in reasonably with the locality.

75. I have described what I see to be the design qualities for future residents above (at [57]). But the proposal would, in built form character terms, also fit in reasonably with the local setting, although as a different use. For example, while the separation of (two-storey) built elements, and responsive elevation detailing, is not reflective of the setting, it is a component that assists with the quality of the proposal as a space for living. When the elevations themselves are considered, points to note are the considerable areas of deep soil, including quite large areas within the front and rear setbacks with mixed planting but including large canopy trees and minimum 1.5m setbacks along either side boundary with some deeper setback areas, which allow for medium sized trees in gaps between buildings (reference: Ex A Tab 8 Landscape Plans, prepared by Melissa Wilson, Issue B, dated 2.3.21, Drawing Nos. LS01, LS02, LS03, LS04 and LS05, and noting proposed Condition 7). The landscaping would soften the effects of the built form, including balconies.

76. The proposed acoustic fencing is broken up into different heights to respond to potential impacts (1.8m and 2.1m on the east, then 1.8m and 2.3m on the west). This is different from a continuous length of the taller fence. I note the sections of 2.3m fence along the western boundary generally align with buildings located along that side boundary within neighbouring property (ie rather than open areas where the fencing might be more visible). I do note the advice that the neighbours did not raise concerns in regard to fencing or visual character generally. Further in regard to acoustics, I note that the experts have agreed that with the proposed plan of management, including various acoustic-related requirements, the proposal is acceptable on acoustic grounds. On balance, the proposed acoustic fencing is not seen to be unreasonable nor are the acoustic related issues seen to be of concern.

Driveway access and parking

77. Council argues that simultaneous on-site two-way traffic movement is required. Essentially, Council seeks a passing lane on site, so that there would not be a situation where a vehicle entering the site would block otherwise through traffic on The Promenade. The applicant argues that because of low traffic volumes, this would be unreasonable. I understood it to also be argued that any such problems would be resolved if cars were not parked along The Promenade.

78. A somewhat unusual setting is evident in regard to this issue. It is agreed by the experts that while there is currently no sign-posted parking controls on The Promenade in the site vicinity, the NSW Road Rules would have it that no parking should occur on the street (because a parked car would provide less than 3m separation between itself and the existing double centreline) (reference Joint Expert Report Traffic Ex 3 par 6). However, I do not see this position as assisting the applicant in particular. The existing streetside parking is a matter of fact, and there is no evidence that the setting is likely to change any time soon. I general empathise with the position argued by Mr Rajathurai on this point that there are many uncertain steps involved in bringing into place parking restrictions in this particular street-setting.

79. However, I also accept Mr Doan’s point on the particularly low likelihood that the circumstances would arise to bring about a noticeable inconvenience or safety risk to traffic as a consequence of the concern raised by Council. Here I note two additional points. One is the evidence of low rates of car ownership of boarding house tenants (car ownership rate of one third according to UNSW, Occupant Survey of Recent Boarding House Developments in Central and Southern Sydney Ex J p 8). The second point is what is for me the good degree of accessibility available to the site, I recognise that the site does not qualify as an “accessible area” under the provisions of either SEPP ARH or SEPP Housing. But I have described what I consider to be good accessibility available to the site above [51]. There is readily walkable bus and train access to the site (albeit the nearest bus route does not operate the required weekend hours), along with an easy walk to local convenience shops, and considerable employment, at-scale, within ready walking distance to the immediate south, and otherwise nearby. That is, non-driving workers, employed nearby, could readily see the site as offering very convenient accommodation. These locational features are important of themselves and more than compensate for the fact that the UNSW survey did not include Fairfield LGA.

Conclusion

80. On the basis of the above reasoning, I am satisfied that the development application, as amended, warrants the grant of consent; subject to without prejudice conditions agreed between the parties and provided at Annexure A.

Orders

81. The Court orders:

1. The Appeal is upheld.

2. Development Application No. 134.1/2021 for a two-storey boarding house comprising 12 double occupancy boarding rooms, including one boarding manager room at 89 The Promenade, Old Guildford (Lot 3 DP 35091), is approved subject to the conditions in Annexure A.

3. Exhibits are retained with the exception of the following which are returned: Exhibits 2, 3, 4, 5, 6, 7, 8, E, F, H and J.

………………………..

P Walsh

Commissioner of the Court

69104.22 Walsh C (Annexure A) (290908, pdf)

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Decision last updated: 09 December 2022