BL2093 Pty Ltd v Northern Beaches Council - [2021] NSWLEC 1784

Land and Environment Court

New South Wales

Medium Neutral Citation: BL2093 Pty Ltd v Northern Beaches Council [2021] NSWLEC 1784
Hearing dates: 4 and 5 August 2021
Date of orders: 22 December 2021
Decision date: 22 December 2021
Jurisdiction: Class 1
Before: Chilcott C
Decision:
See Directions at [103].

Catchwords:
DEVELOPMENT APPLICATION – boarding house development – development on a narrow lot – development on an isolated lot - whether proposed development is compatible with the character of the local area – whether proposed side setbacks are acceptable – whether proposed breach of side boundary envelope control is acceptable - application of cl 4.15(3A) of the EP&A Act – reasonable alternative solutions.

Legislation Cited:
Contaminated Land Management Act 1997, Div 2, Pt 34
Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 4.17, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll 55, 77
State Environmental Planning Policy No 55 -Remediation of Land, cl 7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 8, 29, 30, 30A, 30AA, Pt 2, Div 3
State Environmental Planning Policy (Housing) 2021, Sch 7
Warringah Local Environment Plan 2011, cll 2.3, 4.3, 6.2, 6.4

Cases Cited:
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 69
Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 19
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315

Texts Cited:
Northern Beaches Community Participation Plan Warringah Development Control Plan 2011
Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy, April 2021

Category: Principal judgment
Parties: BL2093 Pty Ltd (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
M Seymour (Applicant)
S Patterson (solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2021/43433
Publication restriction: No

Judgment

COMMISSIONER: BL2093 Pty Ltd (the Applicant) has appealed the initial deemed refusal, subsequently the actual refusal, by Northern Beaches Council (the Respondent) of its development application DA2020/1597, made with owner’s consent, seeking consent for the demolition of existing structures and construction of a part three (3), part four (4) storey boarding house with 26 boarding rooms over two levels of basement car parking for 13 cars with landscaping (the Proposed Development) at 67 Pacific Parade, Dee Why (the Subject Site).
The parking arrangements proposed for the Proposed Development include the installation of a car stacker across three car spots to provide for six car parking spaces within a basement carpark that includes a side setback of 1.7m.
By notice of motion, the Applicant was granted leave by the Court on 23 June 2021 to amend its development application to rely on amended plans and other documents, with costs awarded to the Respondent, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Applicant’s amended plans were said to reduce potential environmental impacts that may arise as a consequence of the Proposed Development, and to improve community outcomes therefrom.
The amendments for which leave was granted on 23 June 2021 included:

a reduction in the bulk and scale of the Proposed Development through a reduction in its height and reconfiguring of its internal layout;

a reduction in the depth of excavation required on the Subject Site;

improved amenity outcomes for future residents and residents of adjoining developments in relation to privacy, noise and solar access;

increases to landscaping in the front setback; and

improvements to traffic and parking outcomes associated with the Proposed Development.

The appeal is made under s 8.7(1) of the EP&A Act and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.
A site inspection was undertaken at the commencement of the hearing, consistent with the Court’s COVID-19 Pandemic Arrangements Policy, and the balance of the hearing, including the receipt of objector submissions, was undertaken via Microsoft Teams.

Site context

The Subject Site is:

zoned R3 medium density residential under the provisions of cl 2.3 of Warringah Local Environmental Plan 2011 (WLEP). The Proposed Development is a permissible form of development on the Subject Site.

located on Pacific Parade at Dee Why between two relatively recently constructed residential flat buildings (RFBs), one of which is positioned to its east on the corner of Pacific Parade and The Crescent, identified as 1-5 The Crescent, and a more recently completed development at 65 Pacific Parade, located to its west.

A public reserve, Crescent Reserve, is located to the rear of the Subject Site adjacent to its southern boundary.
The Subject Site is both a narrow lot and an isolated lot lacking the capacity to be amalgamated with an adjoining lot to facilitate a more comfortable medium density development.
The isolated nature of the Subject Site was recognised by the Respondent, Warringah Council, when it granted consent in 2016 for construction of a new RFB on the adjacent lot at 65 Pacific Parade. In particular, the development application assessment report that formed a basis for the approval of the RFB development at 65 Pacific Parade had noted that:

the site is one of two remaining blocks of land in this section of Pacific Parade and ideally these sites, being no.s 65 and 67 Pacific Parade would be consolidated and a RFB constructed over the two sites. However, site consolidation has not been achieved in this case;

the applicant had provided conceptual envelope plans for a RFB on the adjoining site (no. 67 Pacific Parade) which is of similar scale to the current application and those plans demonstrated that both sites could be developed:

in isolation to achieve an appropriate urban form that, on merit, would generally be consistent with the planning controls (front, side, and rear setbacks, building height and site coverage); and

to provide for an acceptable level of amenity for both sites, including in relation to solar access and privacy.

The Parties have confirmed that the RFB on the adjoining lot at 65 Pacific Parade was not constructed in a manner consistent with its approved plans and, as a consequence, a portion of the eastern side setback of the RFB which was to have had a setback of 2m is in fact located 1.56m off the side boundary with the Subject Site, and creating a further constraint to the design of the Proposed Development.
Notwithstanding the constraints to the design of a permissible form of development on the Subject Site, weight should be given to the intent of the Subject Site’s R3 zoning in the manner described by McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117] and [118].

Notifications and objector submissions

Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and the provisions of Northern Beaches Community Participation Plan, the Proposed Development was placed on public exhibition by the Respondent between 15 and 29 January 2021. Fifty-one submissions were received in response to that notification.
The submissions of objectors, Mr Sean Southwell as well as Ms Mary-Rose with Mr Charles Yates, all residents of the building to the west of the Subject Site, were received at the commencement of the hearing. The objectors also provided further written submissions confirming concerns held in relation to the Proposed Development. These concerned:

the number and density of residents who would occupy the Proposed Development if it were to be approved;

whether the Proposed Development, including its architectural form, was compatible with the character of the area;

the provision of communal open space and general living space for future residents of the Proposed Development which were said to be inadequate;

compliance of the Proposed Development with various regulatory requirements;

potential parking and traffic impacts generated by the Proposed Development; and

potential impacts of the Proposed Development on the visual and acoustic privacy of residents in adjoining RFBs.

Contentions

Certain contentions resolved

At the commencement of the hearing, the Respondent advised that certain of the matters that had been in contention in the appeal were resolved on the basis of amendments to the Applicant’s development application, for which leave had been granted, and it also confirmed the Proposed Development’s compliance with various development standards and controls applicable to development on the Subject Site, as follows:

concerning the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH):

the Proposed Development complied with the “must-not-refuse” provisions of cl 29 of SEPP ARH;

the Proposed Development’s compliance with the provisions of cl 30 of SEPP ARH was confirmed, noting in particular that the Applicant’s provision of a manager for the boarding house, along with the provision of at least one common room, now satisfied subcll 30(1)(a) and 30(1)(e);

the provisions of cl 30AA of SEPP ARH do not apply to the Proposed Development as the Subject Site is zoned R3;

in relation to the provisions of WLEP:

the Proposed Development is a permissible use under the R3 zoning of the Subject Site;

the Proposed Development is compliant with the height of buildings development standard applicable to the Subject Site under the provisions of cl 4.3 of WLEP;

clause 6.2 provides that excavation is permissible on the Subject Site with consent, and which requires consideration of the matters in cl 6.2(3) before consent can be granted, and in relation to this:

the Parties’ geotechnical experts had identified that the completion of geotechnical testing on the Subject Site would only be possible once the existing dwelling on the site had been removed;

the Applicant’s expert planner, Mr Mead, had prepared a statement confirming that the consent authority, or the Court on appeal, is able to be satisfied that the matters requiring consideration under cl 6.2(3) of WLEP have been considered;

the Respondent’s expert planner, Ms Young, confirmed that she concurred with Mr Mead’s conclusions in relation to the provisions of cl 6.2(2) of WLEP; and

on the basis of the evidence of the Parties’ expert planners, and the Applicant’s geotechnical assessment of the Subject Site prepared by CMW Geosciences, dated 8 April 2021, I am satisfied that the provisions of cl 6.2(3) of WLEP have been satisfied by the Applicant;

clause 6.4 concerns development on sloping land, and in relation to this:

the Applicant’s expert planner, Mr Mead, had prepared a statement confirming that the consent authority, or the Court on appeal, is able to be satisfied that the matters requiring consideration under cl 6.4(3) of WLEP have been considered;

the Respondent’s expert planner, Ms Young, confirmed that she concurred with Mr Mead’s conclusions in relation to the provisions of cl 6.4(2) of WLEP; and

the Respondent’s geotechnical consultant, CMW Geosciences, had recommended that work would be required to repair a retaining wall at the rear of the Subject Site, and the Applicant proposed that this be addressed through the imposition of a condition of consent, should the Court be minded to grant consent to the proposed Development;

on the basis of the evidence of the Parties’ expert planners, and the Applicant’s geotechnical assessment of the Subject Site prepared by CMW Geosciences, dated 8 April 2021, I am satisfied that the provisions of cl 6.4(3) of WLEP have been satisfied by the Applicant;

further, the Respondent had confirmed in opening that it also accepted the Agreed position of the Parties’ expert planners, that the provisions of cl 6.4(3) of WLEP had been satisfied;

notwithstanding the conclusions above at [(2)(c)(iv)] and [(2)(d)(iv)] in relation to the provisions of cll 6.2 and 6.4 of WLEP, I note that the Applicant’s geotechnical report by CMW Geosciences, dated 21 July 2021, had concluded that the digging of further boreholes within the Subject Site in the location of the existing dwelling would facilitate the provision of additional information for the purposes of supplementing the information, and confirming the conclusions in the report. Consequently, the Applicant proposes the imposition of two conditions of consent arising from the report of CMW Geosciences as follows:

a condition requiring that additional borehole tests be undertaken after demolition of the existing dwelling on the Subject Site but before any construction works commence; and

a condition requiring that a structural engineer provide further advice in relation to any additional, suitable, stabilisation measures to be undertaken in relation to the rear retaining wall before demolition and excavation in that area of the Subject Site is undertaken.

the Applicant noted, and I agree, that a condition of the type proposed had not formed part of the Respondent’s proposed draft conditions of consent but said that, on the evidence, such a condition was appropriate.

in relation to the provisions of Warringah Development Control Plan 2011 (WDCP):

concerning the provisions of Parts B7 and B9 in relation to front and rear boundary setbacks, the Respondent said that these were compliant, and were not the subject of contentions in the appeal;

concerning the provisions of Part C3 in relation to parking, the Parties’ traffic engineering experts had agreed that the Applicant’s provision of a car share within the Proposed Development, which replaced a requirement for parking for five vehicles, along with a car space for the manager, satisfied the applicable car parking requirements for the Proposed Development, and that the agreement of the experts in relation to the allocation of car spaces should be subject to the imposition of a condition or conditions of consent (see below (at [96]);

the Respondent advised that a previous contention in relation to landscaping and the Proposed Development’s satisfaction of the provisions with Part D1 of WDCP had been struck out in an amended statement of facts and contentions, and was not pressed;

concerning the provisions of Part D3 in relation to potential noise impacts, the Parties have agreed that these are appropriately addressed through the Parties’ proposed conditions of consent;

concerning the provisions of Part D9 in relation to building bulk, which encourages good design and innovative architecture to improve the urban environment, and the minimisation of the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes, the Respondent said that a contention concerning this control was not pressed.

Remaining contentions

The Parties further agreed that the remaining contentions in the appeal concerned the following two principal matters:

whether the Proposed Development is compatible with the character of the local area as required under cl 30A of SEPP ARH, in relation to which:

the Parties expert planners have agreed that the Applicant’s proposed schedule of finishes and the treatment of the facades to the proposed boarding house are acceptable;

The Applicant’s expert planner and urban designer had proposed certain further amendments to the façade of the Proposed Development, which they said would further enhance its responsiveness to matters raised by the Respondent, but the Respondent, relying on the advice of its experts, confirmed that these changes were not required to be made;

the Respondent said that:

the Proposed Development did not achieve objective (a) in Part A5 of WDCP which seeks to ensure that development responds to the characteristics of the site and the qualities of the surrounding neighbourhood; and

the predominant side setback provided by other developments within the visual catchment of the Subject Site was 3.5m, and the Applicant’s proposed side setbacks of 2m was not compatible with this aspect of the local character;

the Proposed Development’s exceedance of the 45 degree side boundary envelop control in Part B3 of WDCP added to the bulk of the development and, in combination with the proposed side setbacks, further reduced the prospect that the Proposed Development was compatible with the character of the local area;

whether the Applicant’s proposed side setbacks for the Proposed Development were acceptable, in relation to which:

the Parties agree that, given the isolated nature of the Subject Site and its narrow frontage, compliance with the 4.5m side setback control in WDCP is not achievable and compliance with the control is not pressed by the Respondent;

the design of the Applicant’s Proposed Development includes side setbacks at ground floor level to the residential flat buildings (RFBs) to the east and west of the Subject Site of approximately 2m;

the Respondent does not accept that 2m side setbacks are acceptable and submits that the minimum side setback that ought to be accepted for a development on the Subject Site is 3.5m;

the Respondent also contended that the Proposed Development’s breach of the provisions of Part B3 of WDCP concerning side boundary envelope controls was not acceptable.

The Respondent also said that the Proposed Development had not responded adequately to the following two matters which it said were a consequence of the inadequate side setbacks of the Proposed Development:

the provision of solar access to, as well as the outlook from, the proposed manager’s unit and proposed unit G01 which the Respondent said were unsatisfactory; and

potential privacy impacts of the Proposed Development on the adjacent RFBs to its east and west, and whether it was preferable to mitigate these potential impacts either through requiring greater side setbacks than are proposed by the Applicant, as suggested by the Respondent’s expert planner, Ms Young, or through the provision of external privacy treatments.

The Court was assisted in its considerations of these contentions by the evidence of the Parties experts as follows:

the Parties’ expert planners, Mr Jeff Mead, for the Applicant, and Ms Anne-Marie Young, for the Respondent;

the Parties’ urban design experts, Mr Shaun Carter, for the Applicant, and Mr Dominic Chung, for the Respondent.

the Parties’ expert traffic engineers, Mr Morgan Stanbury, for the Applicant, and Mr Craig McLaren, for the Respondent.

Statutory context

Environmental Planning and Assessment Act 1979

The objects of the EP&A Act at s 1.3 are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment

Section 4.15(1) of the EP&A Act provides that:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.

State Environmental Planning Policy (Affordable Rental Housing) 2009

The proposed development is for construction of a boarding house and so requires consideration under Pt 2 Div 3 of SEPP ARH.
The aims of SEPP ARH at cl 3 are:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

Under cl 8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevail to the extent of the inconsistency.
Clause 29 of SEPP ARH provides standards that cannot be used to refuse consent for developments the subject of the SEPP, as follows:

29 Standards that cannot be used to refuse consent

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

(b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,

(b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,

(c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(d) private open space if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(e) parking, if:

(i) in the case of development in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and

(ii) in the case of development not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and

(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,

(f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:

(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or

(ii) 16 square metres in any other case.

(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.

(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

Clause 30 of SEPP ARH provides mandatory standards for boarding houses, as follows:

(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:

(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,

(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,

(f) (Repealed)

(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,

(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.

(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.

Clause 30A of SEPP ARH requires that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
Clause 30AA of SEPP ARH concerns the size of boarding houses that are permissible on land zoned R2 Low Density Residential, and does not apply to the Proposed Development in this appeal as the Subject Site is zoned R3 Medium Density Residential.

Warringah Local Environmental Plan 2011

The following provisions of WLEP are of relevance in this appeal:

Clause 2.3 concerning zone objectives and land use table, and in relation to which:

subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

the Subject Site is zoned R3 Medium Density Residential, the objectives of which are:

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

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

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

To ensure that medium density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

To ensure that medium density residential environments are of a high visual quality in their presentation to public streets and spaces..

clause 6.2 concerning earthworks which provides:

(1) The objectives of this clause are as follows -

(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b) to allow earthworks of a minor nature without requiring separate development consent.

(2) Development consent is required for earthworks unless -

(a) the work is exempt development under this Plan or another applicable environmental planning instrument, or

(b) the work is ancillary to other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters -

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the proposed development on the likely future use or redevelopment of the land,

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

clause 6.4 in relation to development on sloping land, which provides:

The objectives of this clause are as follows –

(a) to avoid significant adverse impacts on development and on properties in the vicinity of development sites resulting from landslides originating either on or near sloping land,

(b) to ensure the impacts of storm water runoff from development on or near sloping land are minimised so as to not adversely affect the stability of the subject and surrounding land,

(c) to ensure subsurface flows are not adversely affected by development so as to not impact on the stability of existing or adjoining land.

(2) This clause applies to land shown as Area A, Area B, Area C, Area D and Area E on the Landslip Risk Map.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the application for development has been assessed for the risk associated with landslides in relation to both property and life, and

(b) the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and

Warringah Development Control Plan 2011

The Proposed Development is subject to the provisions of WDCP, and relevantly those within:

Part A5, which provides objectives for development on land to which WDCP applies, and which are:

“To ensure development responds to the characteristics of the site and the qualities of the surrounding neighbourhood
To ensure new development is a good neighbour, creates a unified landscape, contributes to the street, reinforces the importance of pedestrian areas and creates an attractive design outcome
To inspire design innovation for residential, commercial and industrial development
To provide a high level of access to and within development.
To protect environmentally sensitive areas from overdevelopment or visually intrusive development so that scenic qualities, as well as the biological and ecological values of those areas, are maintained
To achieve environmentally, economically and socially sustainable development for the community of Warringah.”

Part B3, concerning side boundary envelope controls, which provides:

“Objectives
To ensure that development does not become visually dominant by virtue of its height and bulk.
To ensure adequate light, solar access and privacy by providing spatial separation between buildings.
To ensure that development responds to the topography of the site.
Requirements
1. Buildings on land shown coloured on the DCP Map Side Boundary Envelopes must be sited within a building envelope determined by projecting planes at 45 degrees from a height above ground level (existing) at the side boundaries of:
4 metres, or
5 metres
as identified on the map.
2. On land within the R3 Medium Density Residential zone, above and below ground structures and private open space, carparking, vehicle access ramps, balconies, terraces, and the like shall not encroach the side boundary envelope.”

Part B5, which applies to Applies to land shown coloured on the DCP Map Side Boundary Setbacks, with the exception of land identified as ‘Merit Assessment’, and which provides as follows:

“Objectives
• To provide opportunities for deep soil landscape areas.
• To ensure that development does not become visually dominant.
• To ensure that the scale and bulk of buildings is minimised.
• To provide adequate separation between buildings to ensure a reasonable level of privacy, amenity and solar access is maintained.
• To provide reasonable sharing of views to and from public and private properties.
Requirements
Development on land shown coloured on the DCP Map Side Boundary Setbacks is to maintain a minimum setback from side boundaries as shown on the map.
Side boundary setback areas are to be landscaped and free of any above or below ground structures, car parking or site facilities other than driveways and fences.
On land within the R3 Medium Density Residential zone, above and below ground structures and private open space, basement car parking, vehicle access ramps, balconies, terraces, and the like shall not encroach the side setback except as provided for under Exceptions below.
Exceptions

Land Zoned R3

All development:

Light fittings, electricity or gas meters or other services infrastructure and structures not more than 1 metre above ground level (existing) (including steps, landings, pedestrian ramps and stormwater structures) may encroach beyond the required setback up to 2 metres from a side boundary; and

Entrance and stair lobbies at ground floor level may encroach the required setback up to 2 metres from a side boundary.

Basement carparking structures, and private open space:

Variations will be considered for existing narrow width allotments, where compliance is unreasonable in the context of surrounding medium density development for basement carparking and private open space.

Basement car parking may extend:

Up to 2 metres from the side boundary, and

No more than 1 metre above ground level (existing)

Private open space may extend:

Up to 3.5 metres from a side boundary”

Part B7, which concerns front boundary setbacks, and which provides:

“Objectives
To create a sense of openness.
To maintain the visual continuity and pattern of buildings and landscape elements.
To protect and enhance the visual quality of streetscapes and public spaces.
To achieve reasonable view sharing.
Requirements
Development is to maintain a minimum setback to road frontages.
The front boundary setback area is to be landscaped and generally free of any structures, basements, carparking or site facilities other than driveways, letter boxes, garbage storage areas and fences.
Where primary and secondary setbacks are specified, buildings and structures (such as carparks) are not to occupy more than 50% of the area between the primary and secondary setbacks. The area between the primary setback and the road boundary is only to be used for landscaping and driveways.
For land zoned E3 and not having frontage to Kamber Road or Kimbriki Road the minimum front building setback area is to be densely landscaped using locally occurring species of canopy trees and shrubs and free of any structures, carparking or site facilities other than driveways, letterboxes and fences.”

Part B9, which concerns rear boundary setbacks, and which provides as follows:

“Objectives
• To ensure opportunities for deep soil landscape areas are maintained.
• To create a sense of openness in rear yards.
• To preserve the amenity of adjacent land, particularly relating to privacy between buildings.
• To maintain the existing visual continuity and pattern of buildings, rear gardens and landscape elements.
• To provide opportunities to maintain privacy between dwellings.
Requirements
Development is to maintain a minimum setback to rear boundaries.
The rear setback area is to be landscaped and free of any above or below ground structures.
On land zoned R3 Medium Density where there is a 6m rear boundary setback, above and below ground structures and private open space, including basement carparking, vehicle access ramps, balconies, terraces, and the like shall not encroach the rear building setback.
The rear building setback for land zoned IN2 Light Industrial at Tepko Road that adjoins land zoned R2 Low Density Residential is not to be used for industrial purposes or vehicle access.
The rear building setback for land zoned IN2 Light Industrial in the vicinity of Campbell Parade, Manly Vale is not to be used for industrial purposes or vehicle access”

Part C3, which concerns parking facilities and which relevantly provides:

“Objectives
To provide adequate off street carparking.
To site and design parking facilities (including garages) to have minimal visual impact on the street frontage or other public place.
To ensure that parking facilities (including garages) are designed so as not to dominate the street frontage or other public spaces
Requirements
The following design principles shall be met:
Garage doors and carports are to be integrated into the house design and to not dominate the façade. Parking is to be located within buildings or on site.;

Laneways are to be used to provide rear access to carparking areas where possible;
Carparking is to be provided partly or fully underground for apartment buildings and other large scale developments;
Parking is to be located so that views of the street from front windows are not obscured; and
Where garages and carports face the street, ensure that the garage or carport opening does not exceed 6 metres or 50% of the building width, whichever is the lesser.
4. Carparking is to be provided in accordance with Appendix 1 which details the rate of car parking for various land uses. Where the carparking rate is not specified in Appendix 1 or the WLEP, carparking must be adequate for the development having regard to the objectives and requirements of this clause. The rates specified in the Roads and Traffic Authority's Guide to Traffic Generating Development should be used as a guide where relevant.”

Part D1, concerning Landscaped Open Space and Bushland Setting, and which relevantly provides:

“Objectives

To enable planting to maintain and enhance the streetscape.

To conserve and enhance indigenous vegetation, topographical features and habitat for wildlife.

To provide for landscaped open space with dimensions that are sufficient to enable the establishment of low lying shrubs, medium high shrubs and canopy trees of a size and density to mitigate the height, bulk and scale of the building.

To enhance privacy between buildings.

To accommodate appropriate outdoor recreational opportunities that meet the needs of the occupants.

To provide space for service functions, including clothes drying.

To facilitate water management, including on-site detention and infiltration of stormwater.

Requirements

1. The required minimum area of landscaped open space is shown on DCP Map Landscaped Open Space and Bushland Setting. To measure the area of landscaped open space:

Driveways, paved areas, roofed areas, tennis courts, car parking and stormwater structures, decks, etc, and any open space areas with a dimension of less than 2 metres are excluded from the calculation;

The water surface of swimming pools and impervious surfaces which occur naturally such as rock outcrops are included in the calculation;

Landscaped open space must be at ground level (finished); and

The minimum soil depth of land that can be included as landscaped open space is 1 metre.”

Part D3, concerning noise and which provides:

“Objectives
To encourage innovative design solutions to improve the urban environment.
To ensure that noise emission does not unreasonably diminish the amenity of the area or result in noise intrusion which would be unreasonable for occupants, users or visitors.
Requirements
1. Noise from combined operation of all mechanical plant and equipment must not generate noise levels that exceed the ambient background noise by more than 5dB(A) when measured in accordance with the NSW Industrial Noise Policy at the receiving boundary of residential and other noise sensitive land uses.”

Part D6, concerning access to sunlight, and which provides:

“Objectives
To ensure that reasonable access to sunlight is maintained.
To encourage innovative design solutions to improve the urban environment and public open space.
To promote passive solar design and the use of solar energy.
Requirements
1. Development should avoid unreasonable overshadowing any public open space.
2. At least 50% of the required area of private open space of each dwelling and at least 50% of the required area of private open space of adjoining dwellings are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21.”

Part D9 which concerns building bulk and which provides:

“Objectives
To encourage good design and innovative architecture to improve the urban environment.
To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes.
Requirements
1. Side and rear setbacks are to be progressively increased as wall height increases.
2. Large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief.
3. On sloping land, the height and bulk of development (particularly on the downhill side) is to be minimised, and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. In particular:
The amount of fill is not to exceed one metre in depth.
Fill is not to spread beyond the footprint of the building.
Excavation of the landform is to be minimised.
4. Building height and scale needs to relate to topography and site conditions.
5. Orientate development to address the street.
6. Use colour, materials and surface treatment to reduce building bulk.
7. Landscape plantings are to be provided to reduce the visual bulk of new building and works.
8. Articulate walls to reduce building mass.”

Remaining contentions resolved

The remaining contentions in the appeal were identified above (at [17]) and resolution of those contentions requires the Court to consider two questions as follows:

is the Applicant’s Proposed Development compatible with the character of the local area; and

are the Applicant’s proposed side setbacks in the Proposed Development acceptable?

For reasons provided below, I conclude that each of these questions should be answered in the affirmative.
At the conclusion of those considerations I will address some residual matters in the appeal, including matters identified above at [18].

Is the Applicant’s Proposed Development compatible with the character of the local area?

The Applicant had submitted in opening, and relying on the evidence of its expert planner, Mr Mead, that:

its development application seeks consent for a boarding house which is permissible in the Subject Site’s R3 zoning;

the Proposed Development is designed to look like a boarding house and does not seek to replicate the typology of the RFBs located to either side of the Subject Site;

it had sought to maintain the compliance of its Proposed Development with the height of buildings development standard applicable to the Subject Site, noting that there is no floor space ratio development standard application on the Subject Site;

the Subject Site is narrow and so constrained in terms of design outcomes which were further affected by the presence of a public reserve to the rear of the Subject Site which had led the Applicant to place the bulk of the Proposed Development away from the rear, and to place its proposed communal open space on the roof above level 3 of the development;;

the focus of landscaping within the Proposed Development was towards the front of the Subject Site in order to enhance its streetscape presentation;

the controls within WDCP that are applicable to development on the Subject Site are very broad, generic controls addressing all types of development, but must be interpreted within the context of each specific site, and so could not be applied uniformly in every context;

the design of its Proposed Development had sought to be responsive to the typography of the Subject Site by removing some massing of the development from the front and rear of the proposed boarding house building and placing this more centrally. In doing so, the Applicant acknowledged that the built form of the Proposed Development penetrated the 45 degree building envelop plane required under the provisions of Part B3 of WDCP, but said that these exceedances were minor and located such that they did not gave rise to any potential impacts on adjoining development to the east and west of the Subject Site.

The Respondent, relying on the evidence of its expert planner, Ms Young, in the joint expert of the planners and urban designers, had submitted that:

there existed a consistent pattern of building setbacks from side boundaries in the local area of the Subject Site;

the Applicant’s Proposed Development includes side setbacks to its eastern and western boundaries of 2m which was inconsistent with the established pattern of side setbacks of buildings in the local area of the Subject Site which generally provided:

a minimum side setback width of 3.5m; and

a building separation of around 7.5 m when combined with the side setbacks of buildings on adjacent lots.

the Proposed Development’s breach of the building envelop control in Part B3 of WDCP added to the perception of its bulk and further reduced its compatibility with the character of the local area.

The Parties expert planners and urban design experts within their joint expert report were not able to reach common ground in relation to the acceptability of the proposed side setbacks in the proposed Development. Amongst other things, they differed in their respective views:

on the area that constituted the local area for the purposes of considering the provisions of cl 30A of SEPP ARH; and

in relation to whether there existed a discernible pattern of side setbacks between developments within their respectively defined local areas;

whether the Proposed Development’s exceedance of the building envelop control in Part B3 of WDCP reduced the compatibility of the Proposed Development with the character of the local area.

During the hearing, and in an effort to discern whether there was a characteristic scale and pattern of side setbacks in the local area of the Subject Site, the Parties’ planning and urban design experts were directed to undertake further joint conferencing in relation to the following:

the definition of the “visual catchment” of the Subject Site;

the measurement of side setbacks within the character area;

explain any differences in the calculation of side setback dimensions;

conclusions in relation to whether there is a consistent pattern of building separations that is characteristic of the local area;

The experts provided a supplementary joint expert report in which they reported their responses to the above matters, and from which I note that:

the experts maintained differing views in relation to the area that would constitute the local area for the purposes of considering character in relation to cl 30A of SEPP ARH, including whether it should be restricted to the visual catchment of the site, and noting that a definition of the ‘local area’ is not provided within SEPP ARH;

notwithstanding their differing views, the Applicant’s and Respondent’s experts considered that the area east and west of the Subject Site on Pacific Parade, including on the opposite side of the road, formed part of the relevant local area, for distances that varied between 100m and 140m;

the experts calculated and recorded the building separations within a distance of 140m east and west of the Subject Site on Pacific Parade;

the calculations undertaken by the Respondent’s experts differed from those of the Applicant’s experts as a consequence of the experts using differing software to undertake the measurements and identifying differing points on the sides of buildings from which to measure building separations, as follows;

the Respondent’s experts reported that building separations measured by them varied between:

5.5m and 13.3m for properties on the north side of Pacific Parade, with a mean of 7,7m;

4.3m and 10.3m for properties on the south side of Pacific Parade, with a mean of 7.43m;

the Applicant’s experts reported that building separations measured by them varied between:

4.4m and 10.4m for properties on the north side of Pacific Parade, with a mean of 6.44m;

4.8m and 11m for properties on the south side of Pacific Parade, with a mean of 7.21m.

Within their joint expert report, the Parties’ experts reported the following outcomes of their deliberations:

the experts agreed that the finishes and treatments of facades was acceptable in terms of ‘materiality’, which I understand to mean ‘materials’;

the Applicant’s expert planner, Mr Mead, stated that, in his opinion:

the side setbacks of the Proposed Development are acceptable, and do not cause the Proposed Development to be incompatible with the area character;

the side setbacks in the locality of the Subject Site are widely varied, and individual allotments have setbacks in the order of between 2m and 2.5m, with generally no increase in setback at upper levels;

the setbacks of developments on amalgamated lots have larger setbacks, as would be expected of such developments;

the side setbacks on the adjoining development at 65 Pacific Parade are less than required under the controls in Part B5 of WDCP;

the side setbacks and building envelope of the Proposed Development are acceptable, noting that the Subject Site does not have an applicable floor space ratio (FSR) development standard;

the rear part of the Proposed Development sits into the slope of the Subject Site and the rear of the proposed boarding house building will be screened from many vantage points in the public domain;

the breach in the building envelope control in Part B3 of WDCP will not result in the development becoming visually dominant, noting:

the Proposed Development is compliant with the height of buildings development standard in cl 4.3 of WLEP, and with the applicable front and rear setback controls in WDCP; and

the experts had agreed that the Proposed Development was acceptable in relation to potential privacy impacts (subject to conditions and overshadowing impacts;

the Proposed Development satisfies the compatibility tests within Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (hereafter referred to as ‘Project Venture’) as it does not result in any unreasonable physical impacts on adjoining developments, and notwithstanding its distinct presentation as a boarding house rather than a RFB, its design will be in harmony with the surrounding developments and in the local area which are generally of a three or four storey built form.

the Applicant’s urban design expert, Mr Carter, said that he concurred with the assessment of character, including in relation to bulk and scape, provided by Mr Mead;

the Respondent’s expert planner, Ms Young, said that:

in her opinion the Proposed Development was not compatible with the character of the local area for reasons that include her assessment that there is a consistent pattern of building setbacks in the local area with which the Proposed Development does not reflect;

the Proposed Development’s breaches of the side boundary envelop control in Part B3 of WDCP results in the development being visually dominant in the streetscape and incompatible with the character of the local area.

the Respondent’s urban design expert, Mr Chung, also said that the Proposed Development was incompatible with the character of the local are for the same reasons as those identified above by Ms Young.

Having considered the evidence of the experts and the submissions of the Parties, I am satisfied that the Proposed Development is compatible with the character of the local area because:

the data provided by the Parties’ experts have confirmed, to my satisfaction, that building separations, and so side setbacks, in the local area of the Subject Site are inconsistent, and, as such, do not provide a feature that can be relied upon, in combination with other features, to establish the character of the local area;

I concur with, and prefer, the evidence provided by the Applicant’s expert planner, Mr Mead, and urban design expert, Mr Carter, in relation to the outcomes of the joint conferencing on side setbacks and the bulk and scale of the Proposed Development (see above at [40(2)]), which I adopt;

further, and as discussed in more detail later (see below at [43] to [84]), I am satisfied that the side boundary envelope and the side setbacks of the Proposed Development achieve the objectives of the controls in Parts B3 and B5 of WDCP, respectively, and as such represent alternative feasible solutions that should be allowed, pursuant to the provisions of s 4.15(3A) of the EP&A Act;

in my assessment, the presentation of the Applicant’s Proposed Development includes a landscaped front setback of compliant depth that is consistent with the presentation of other developments in Pacific Parade, noting that the Respondent does not press a contention in relation to landscaping and compliance with the provisions of Part D1 of WDCP;

the Parties’ expert planners and urban designers agree that the materials and finishes proposed by the Applicant for the boarding house are acceptable, and in my assessment, are compatible with the character of the local area of the Subject Site;

taken together, the reasons provided above at [(1)] to [(5)], are sufficient, in my assessment, to confirm the compatibility of the Proposed Development with the character of the local area as, consistent with the planning principles on compatibility identified in Project venture, they confirm that:

the Proposed Development’s physical impacts on surrounding developments are acceptable; and

the Proposed Development’s appearance will be in harmony with the buildings around it and the character of the street, notwithstanding the constraints of the Subject Site, including its narrow width, but relying on its compliant height, front and rear setbacks and landscaping.

As I have found that the Proposed Development is compatible with the character of the local area of the Subject Site, I will now consider whether the side setbacks of the Proposed Development are acceptable in relation to the controls and objectives of WDCP.

Are the side setbacks of the Proposed Development acceptable?

As noted above (see [31(3)]), the provisions of Part B5 of WDCP include a control requiring side setbacks for the Proposed Development of 4.5m.
As a consequence of the narrow width of the Subject Site at just over 15m, the Respondent does not press that the Proposed Development should adhere to this control, but submits relying on the evidence of Ms Young, its expert planner, that any development on the Subject Site should provide side setbacks of 3.5m. This requirement reflected Ms Young’s evidence in the joint report of the expert planners and urban designers and her opinion that there was a consistent pattern of building setbacks in the local area of the Subject Site, which she says has a minimum 3.5m dimension.
Further, the Applicant’s Proposed Development breaches the side boundary envelope controls in Part B3 of WDCP (see above at [31(2)]) on elements of both its eastern and western margins, most significantly at and around the location of Proposed Development’s lift overrun towards the centre of its western margin, and towards its front, north-western, corner in proximity to the adjacent dwelling at 65 Pacific Parade.
Notwithstanding these breaches of controls within WDCP, and while the Respondent’s expert planner proposes that the side setback should be 3.5m rather than the 2m proposed for reasons provided above (at [44]), the relevant basis for assessing the adequacy of the Applicant’s proposed side setbacks and its response to the side boundary envelope controls are the provisions of s 4.15(3A) of the EP&A Act (see above at [22]).
In particular, s 4.15(3A)(b) of the EP&A Act requires that:

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

Does the Proposed Development achieve the objectives of Part B5 of WDCP?

The provisions of Part B5 of WDCP in relation to side setback controls were provided above (at [31(3)]), and include the following objectives:

“To provide opportunities for deep soil landscape areas.

To ensure that development does not become visually dominant.

To ensure that the scale and bulk of buildings is minimised.

To provide adequate separation between buildings to ensure a reasonable level of privacy, amenity and solar access is maintained.

To provide reasonable sharing of views to and from public and private properties”

On the basis of the agreed evidence of the Parties’ expert planners and urban designers, the Applicant’s Proposed Development:

complies with the landscape controls for the provision of deep soil, and so, in my assessment, the first of the objectives is, in my assessment, satisfied;

the Proposed Development complies with the HoB development standard in cl 4.3 of WLEP, there is no FSR control applicable to the Proposed Development on the Subject Site, and while the development breaches the 45 degree height plane control in Part of WDCP, the Applicant’s planner Ms Young confirmed in oral evidence that this breach does not give rise to any impacts. Taken together, and given the context of the Subject Site’s narrow width, which both Parties agree means that the side setback control cannot be met, I am satisfied that Proposed Development achieves, in my assessment, the second and third of the objectives of Part B5;

There are no buildings behind the Subject Site and so no residences in that area that would have views impacted by the Proposed Development. Ms Young had noted that certain of the west facing units in the RFB at 1-5 The Crescent, east of the Subject Site, and certain of the east facing balconies and windows of units at 65 Pacific Parade will be subject to some loss of outlook. However, within their joint expert report, the Parties’ planning and urban design experts had agreed that the Proposed Development will not obstruct any significant views from adjoining buildings.
Consequently, in my assessment, the final, fifth, of the objectives of the controls in Part B5 of WDCP is achieved by the Proposed Development.
As a consequence, the acceptability or otherwise of the Applicant’s proposed side setbacks is dependent upon the Proposed Development’s achievement of the fourth of the objectives of Part B5 of WDCP, and I will consider this question now.

Does the Proposed Development provide adequate separation between buildings to ensure a reasonable level of privacy, amenity and solar access is maintained?

I have considered the responsiveness of the Proposed Development in relation to whether the Applicant’s proposed side setbacks and the building separations that result therefrom, give rise to potential impacts privacy, amenity and solar access to both the future residents of the Proposed Development, and in relation to the adjoining developments at 65 Pacific Parade and 1-5 The Crescent.
First, in relation to the building at 1-5 The Crescent, there was no contention that the Proposed Development would give rise to any privacy, amenity or solar access impacts on this development. I am satisfied that the Proposed Development, including its proposed side setback to the building at 1-5 The Crescent, achieves the fifth objective of Part B5 of WDCP.
In relation to the building at 65 Pacific Parade, as noted above (at [12]), the as built RFB on that site has a reduced setback to its eastern boundary with the Subject Site when compared to its approved plans. More specifically, the eastern side setback of that building at one point towards its front edge is reduced from 2m as designed to 1.55m as built.
Notwithstanding this, and consistent with the submission of one of the objectors during the hearing, a concern was raised in relation to visual and aural privacy between the Proposed Development and the RFB at 65 Pacific Parade.
The Parties’ expert planners had stated in their joint expert report with the urban design experts that the Proposed Development was acceptable in relation to aural privacy, subject to the implementation of the provisions of the Applicant’s proposed plan of management, and that reliance on management to mitigate acoustic impacts is a typical arrangement for boarding houses where an on-site manager is employed, and as is the case for the Proposed Development.
Ms Young noted in her written evidence that the use of the proposed rooftop communal open space should be limited to no more than 14 (or 26%) of boarding house residents at any one point in time.
I accept that agreed evidence of those experts, and also agree with Ms Young’s proposal in relation to limiting use of the rooftop communal open space to 14 persons, as a reasonable response to concerns expressed by neighbours to the Subject Site during their oral submissions (see above (at [15(6)]).
I note that the Applicant’s proposed plan of management for the Proposed Development, prepared by SixC and dated June 2021, includes within its section 10a concerning noise management, a requirement limiting use of the rooftop common open space to 14 persons, and also requiring that the space not be used between 10pm and 7am.
The Applicant’s proposed plan of management also notes at point 13 within section 10a that a complaint resolution process for residents and nearby neighbours should be documented and included in the plan of management to address potential noise issues arising from the Proposed Development. However, the draft of the plan of management before the Court had not included such a complaint resolution process.
The inclusion of a complaint management procedure within plans of management is included within the Court’s planning principle for plans of management as established by former Commissioner Brown in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (‘Renaldo’).
Consequently, the Applicant’s plan of management should be amended to include a complaint management procedure. I note that the Respondent’s proposed conditions of consent include a condition (proposed condition 78) that requires inclusion of a complaints management procedure within the ongoing plan of management for the proposed boarding house.
In relation to potential visual privacy impacts, the Applicant submitted that there is no relevant concern arising from alleged overlooking between the Subject Site and the neighbouring property to require any condition for treatments to windows on particular rooms in the Proposed development to be imposed and stated that, on the basis of Ms Young’s evidence, there was no proper basis for such a condition to be imposed.
Within the joint expert report of the planners and urban designers, those experts stated that they had discussed all interfaces of the Proposed Development with the adjoining properties and largely agreed that the implementation of the window design, including the use of obscure glazing and highlight windows, in addition to design that offset the location of windows from those on adjacent buildings, had achieved an acceptable level of visual privacy to neighbours.
On the eastern side of the proposed Development, I agree with and accept the evidence of the Applicant’s expert planner, Mr Mead, that this aspect of the Proposed Development has been designed defensively and successfully mitigates any potential privacy impacts through the location of building access and facilities along this aspect of the Proposed Development, and through the use of highlight windows to bedrooms and avoiding placement of windows to habitable rooms within the Proposed Development.
However, the experts were not agreed in relation to whether the centrally located windows on the western side of the Proposed Development were adequately designed to ensure visual privacy between boarding rooms in the Proposed Development and certain of the windows on the eastern side of the RFB at 65 Pacific Parade.
Mr Mead had confirmed within the joint report of the expert planners and urban designers that these windows were not proposed to be obscure glazed nor to be screened.
However, Mr Mead opined that these windows would not give rise to visual privacy issues between the Proposed Development and the adjacent RFB at 65 Pacific Parade because the windows opposite those in the Proposed Development were either glazed themselves or were fitted with shutters that the occupants of those dwelling could choose to close to achieve visual privacy.
Ms Young, for the Respondent, disputed that there would be adequate visual privacy between the centrally located windows in the Proposed Development and the windows and balconies on the eastern elevation of the RFB at 65 Pacific Parade, and noted that, in her opinion, the required visual privacy between buildings on the adjacent lots should be achieved through the incorporation of a more substantial side setback in the design of the proposed Development rather than through privacy treatments.
Notwithstanding this opinion from Ms Young, and noting that the Applicant’s proposed side setback was fixed within the Proposed Development, the Respondent proposed the imposition of a draft condition of consent (draft condition 19), which it said would resolve concerns in relation to potential visual privacy impacts arising from the proximity of the Proposed Development to the adjoining development at 65 Pacific Parade, as follows:

“19. Amendments to the approved plans

The following amendments are to be made to the approved plans:

(a) Fixed angled vertical louvre screens directed towards winter sun/north west corner of the site shall be installed to windows to units L101 to L103 and L204 to L206.

Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the construction certificate.

Reason: To ensure development minimises unreasonable impacts upon surrounding land.”

During the hearing the Respondent proposed that in addition to the units identified in its draft condition 19, fixed angled louvres should also be required for unit 303 located at the year upper south west corner of the Proposed Development, to address visual privacy concerns in relation to a rear upper balcony on the adjoining site.
Having considered the evidence of the Parties’ expert planners and urban designers, I have concluded that there remain unresolved potential visual privacy impacts between the Proposed Development and the adjoining RFB at 65 Pacific Parade. In particular, I am concerned that:

potential visual privacy impacts may arise in relation to the location of the certain balconies on the building on the lot adjacent and

the burden of management of potential impacts arising from the Proposed Development may be placed upon the residents of the adjoining building rather than being resolved within the Proposed Development.

As a consequence, I agree with the submission of the Respondent that its proposed condition 19 (see above at [71]) should be imposed with any grant of consent approving the Proposed Development, and agree with the Respondent that the condition should also require the installation of fixed angled louvre screens to the west facing windows of proposed unit 303.
In relation to the provision of adequate solar access for the units in the proposed Development, and notwithstanding concerns expressed by Ms Young concerning the managers room and room G01, the experts agreed, and I accept, that the provisions of SEPP ARH require no numeric standards in relation to the provision of solar access, nor cross ventilation, in boarding houses, and nor are there any controls applicable from WDCP in relation to these aspects of amenity.
I note that, notwithstanding Ms Young’s concern in relation to the provision of solar access to the managers room and unit G01, the Respondent’s experts had also opined as follows:

Mr Mead said that:

sun eye diagrams provided by the Applicant confirmed that both rooms receive direct sun at mid-winter:

just after 11am to either their open space in the case of the manager’s room or adjoining garden area in the case of room G01; and

just after midday until after 1pm to the glass line of both rooms;

the occupants of those lower rooms may opt to use the communal rooms in the Proposed Development during the day at mid-winter if enjoyment of solar access at that time is a priority for them;

Mr Carter noted that, in his opinion, the reflective and ambient light that would diffuse into west facing rooms within the Proposed Development would add to the direct sunlight they receive during the day such that all west facing rooms, including the managers room and room G01, will receive adequate light.

Having reviewed the plans for the Proposed Development and having considered the evidence of the experts and the submissions of the Parties, I have concluded that no further amendments should be required to either the manager’s room nor room G01 to provide further levels of solar access and I accept the evidence of Mr Mead and Mr Carter that, in the context of the whole Proposed Development, the amenity of those rooms is acceptable including in relation to solar access.
Finally, I note that the planning and urban design experts had agreed within their joint report that all residential rooms in the Proposed Development would be ventilated to an acceptable level by large windows.
On the basis of the above considerations, I am satisfied that the Proposed Development will ensure a reasonable level of privacy, amenity and solar access is maintained to residents and to neighbours of the Subject Site, and that this outcome is not compromised by the Applicant’s proposed side setbacks.
Consequently, I am satisfied that the Proposed Development achieves the fourth objective of Part B5 of WDCP.
As I have already concluded that it satisfies all other objectives of this part of WDCP, I am satisfied that the Applicant’s side setbacks within its Proposed Development is a feasible alternative solution to the controls provided within Part B5 of WDCP, and are acceptable.

Does the Proposed Development achieve the objectives of Part B3 of WDCP?

As previously noted, the Proposed Development does not comply with the side building envelope control in Part B3 of WDCP, the provisions of which were noted above (at [31(2)]).
I have considered the evidence of the Parties’ expert planners and urban designers in relation to the objectives of Part B3 of WDCP (see above at [(2)]), and I have concluded that the Proposed Development does achieve those objectives for the following reasons:

as noted above (at [40(2)(f)]), I have agreed with, and adopted, the evidence of the Applicant’s expert planner, Mr Mead, that the building envelop of the Proposed Development will not be visually dominant for the reasons provided by him. Consequently, I am also satisfied that the Proposed Development will achieve the first of the objectives of Part B3 of WDCP and accept that the Proposed Development will not become visually dominant by virtue of its height and bulk;

as noted above (at [79]), I have found that the Proposed Development achieves the fourth of the objectives of Part B5 of WDCP. Consequently, I am satisfied that, consistent with that objective, the Proposed Development will provide adequate separation between buildings to ensure a reasonable level of privacy, amenity and solar access is maintained. Based on this, I am also satisfied that the Proposed Development will achieve the second of the objective of Part B3 of WDCP and it will ensure adequate light, solar access and privacy by providing spatial separation between buildings as required by that objective.

finally, as I have already noted (above at [35(7)] and [40(2)(f)]), the Applicant, supported by the evidence of its expert planner, Mr Mead, which I have accepted, and whose reasons I have adopted, has identified that the Proposed Development has responded to the topography of the Subject Site by sitting the rear of the development into the slope of the site and through the location of the massing of the proposed boarding house built form. Therefore, I am satisfied that the Proposed Development achieves the third of the objectives of Part B3 of WDCP.

Because the Proposed Development has achieved the objectives of the controls in Part B3 of WDCP, I am satisfied that the Proposed Development merits the application of flexibility in applying those controls as it represents reasonable alternative solution in relation to the design of the side building envelope that should allowed.

Conclusion in relation to principal contentions in the appeal

Having concluded that the character of the Proposed Development is compatible with the character of the local area (see above at [42]) and that the Applicant’s proposed side building envelope and side setbacks, while not compliant with the controls in Parts B3 and B5 of WDCP, achieve the objectives of those controls and so are acceptable (see above at [81] and [84]), I am satisfied that that the Proposed Development should be approved subject to:

the satisfaction of other jurisdictional matters; and

the resolution of matters concerning conditions of consent to be imposed with the grant of consent.

These remaining matters are discussed below.

Other matters

The Applicant has provided a BASIX certificate (No. 1144211M-02 dated 29 April 2021) for its Proposed Development said to satisfy of the provisions of SEPP BASIX. Notwithstanding this, and as identified above (at [3]), the Applicant was granted leave by the Court on 23 June 2021, a date after that of the Applicant’s most recently filed BASIX certificate. As a consequence, the Parties will be directed (see below at [103]) to confirm, inter alia, the validity of the Applicant’s BASIX certification prior to the Court making final orders in this appeal;
I am satisfied that the Applicant’s development application has addressed the provisions of cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), and that the Subject Site will be suitable for intended continuing residential use because, as noted in the Applicant’s statement of environmental effects prepared by BFF Town Planers in December 2020:

the Respondent’s records indicate that the Subject Site’s historical use has only been for residential purposes, which is its proposed continuing use;

the Subject Site and surrounding land is not currently zoned to allow for any sues or activities listed in Table 1 of the contaminated land planning guidelines referred to in cl 7(2) of SEPP55; and

the Subject Site does not constitute land declared to be an investigation area by a declaration of force under Div 2 of Pt 34 of the Contaminated Land Management Act 1997.

At the time of hearing of this appeal, a Draft State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) had been publicly exhibited by the NSW Government, and in relation to this.

since reserving my judgment in this appeal, the Housing SEPP was made on 26 November 2021.

schedule 7 of the Housing SEPP contains a savings provision in the following terms:

the former provisions of a repealed instrument continue to apply to the following –

(a) a development application made, but not yet determined, on or before the commencement date,…

applying the reasoning of Robson J in Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [16]-[22], I am of the view that the provisions of the Housing SEPP should be given limited or no weight in these proceedings, and I am satisfied that final orders in the appeal can be made consistent with my findings in this judgment.

Conditions

Consistent with my observation above (at [41(5)]), and notwithstanding certain proposals that had been proffered by the Applicant’s expert planner and urban designer within the joint report of the planning and urban design experts, no conditions of consent are proposed within this judgment that would require that modifications should be made to the façade presentation of the Proposed Development, noting that:

the Respondent’s expert planner, Ms Young, had agreed that the proposed façade’s “materiality” is generally acceptable, and she deferred to the urban design experts for any further recommendations; and

the Respondent’s urban design expert, Mr Chung, had stated that the window treatments in the façade of the Proposed Development is acceptable, and the only changes he sought to the presentation of the Proposed Development related to the increased side setbacks, which I have addressed earlier (see above at [81]).

In relation to findings I have made that would require amendment to Applicant’s development application to reflect certain of the concessions made by the Parties at the hearing or findings I have made in this judgment, the Applicant drew the Court’s attention to the comments of Robson in Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 69 at [73] and [74], in which his Honour stated:

“[73] Further, the comments of Preston J in Dartbrook CA at [277], [321]-[322] confirm that there was no error of law in the view of the primary judge in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159 at [51] that rather than seeking to amend a modification application to change the details of the development, the same outcome could have been achieved through the imposition of conditions on the approval of the modification application.

[74] The obvious caution is that it is for the commissioner or judge hearing the application for modification of the development consent to decide first, whether the modification application should be approved; and second, that a condition with the effect of amending the development should (and in some circumstances could) be imposed as part of that approval.”

Arising from the evidence of the Parties’ traffic experts (Mr McLaren and Mr Stanbury), I agree that a number of conditions ought to be imposed (see above at [16(5)(b)]) on any consent under s 4.17(1)(g) of the EP&A Act to “modify details of the development”, specifically, the arrangement and use of the basement parking space.
The Applicant submitted that while a modification of the development under a condition is different to an “amendment” of the development application for the purposes of cl 55 of the EP&A Regulation, no issue arises in relation to the provisions of cl 55 and changes required to be made to provide for the reduction in use of car stackers to a single mechanism and a specific allocation of the use of the parking arrangements can be given effect through imposition of a condition of the development consent.
As a consequence, the parking arrangements within the Proposed Development would cater for, notionally, 13 spaces with one allocated specifically to the on-site boarding house manager. In addition to the number of car spaces, the Proposed Development will be required to provide five motorcycle spaces and eleven bicycle spaces.
Further to the agreed outcomes of the Parties’ traffic engineering experts, conditions of consent should be imposed to require that:

no resident of the Proposed Development is to park a vehicle or vehicles within any surrounding streets, including Pacific Parade; and

revisions should be made to the Applicant’s plan of management in relation to the use of the car share vehicle within the Proposed Development.

In summary, the grant of consent to the Applicant’s development application should include conditions to be imposed in relation to the provision of parking and management of traffic as follows:

a condition confirming the allocation of spaces as proposed by the Parties traffic engineering experts, which through the allocation of one space as a car share that equates to five spaces for the development, the effective car parking capacity within the Proposed Development, including 6 car spaces in a stacker, would be 13 including a manager’s car parking space, as follows:

1 x resident accessible parking space

6 x resident spaces (provided by the stacker)

1 x space for a car share vehicle (effectively providing for 5 resident spaces)

1 x manager space

a condition requiring that the PoM be updated in relation to the management of the car share space;
a condition requiring that there be no resident parking on surrounding streets;

I have also previously noted (see above at [63]) that the Applicant’s plan of management for the Proposed Development should be amended to include a complaint management procedure, consistent with the planning principle in Renaldo.
The planning principle also identifies that plans of management should also include a procedure for updating and changing the plan, including the advertising of any changes.
It is my assessment that the Applicant’s draft plan of management should also be amended to include a procedure for updating and changing the plan, including the advertising of any changes, as identified in Renaldo. This requirement should be included within the Respondent’s proposed conditions of consent no. 78.
Finally, I have also previously confirmed that conditions should be imposed in relation to additional geotechnical studies to be completed following the grant of consent (see above at [16(3)]).

Conclusions

On the basis of my assessment and conclusions above in this judgment, I am satisfied that the Proposed Development should be approved because:

I have concluded that the Proposed Development is compatible with the character of the local area (see above at [41]), which I am required to consider under the provisions of cl 30A of SEPP ARH, and which is the objectives of in Part A5 of WDCP (see above at [31(1)]);

I have also concluded that the Applicant’s proposed side setbacks, which do not comply with the controls in Part B5 of WDCP, along with its proposed breach of the side boundary envelope controls in Part B3 of WDCP, are acceptable for reasons provided above (at [81] and [84]);

all other contentions in the appeal including those relating to the relevant provisions of SEPP ARH, WLEP and WDCP have been resolved;

all other jurisdictional matters required to be satisfied in order for the Court to have the power to determine the appeal have been satisfied, other than in relation to SEPP BASIX, in relation to which the Parties are invited to confirm the validity of the Applicant’s BASIX certification prior to the Court making final orders in this appeal;

I have considered the Parties competing conditions of development consent, and matters arising therefrom have been resolved in this judgment (see above at [96] to [100];

Notwithstanding the resolution of Parties’ contentions and competing conditions in the appeal, the Court would be assisted by the Parties’ provision of resolved and agreed conditions of consent reflecting the findings and conclusions in this judgment. As a consequence, the Court makes the following directions.

Directions

The Court directs:

the Parties will be directed to confirm, by Friday 28 January 2022, the validity of the Applicant’s BASIX certificate prior to the Court making final orders in this appeal or, if necessary, to file an updated BASIX certificate for the Proposed Development by that date;

the Parties are to file with the Court final agreed conditions of consent, reflecting the conclusions of this judgment above at [101], by no later than 3pm on Friday 28 January 2022;

the matter is listed for mention on Monday 31 January 2022 at 4:15pm by Teams;

if directions (1) and (2) above is complied with, orders will be made granting development consent and the mention on 31 January 2022 will be vacated;

the Parties are granted liberty to restore on 3 days’ notice.

…………………………..

M Chilcott

Commissioner of the Court

**********

Decision last updated: 22 December 2021

Medium Neutral Citation:	BL2093 Pty Ltd v Northern Beaches Council [2021] NSWLEC 1784
Hearing dates:	4 and 5 August 2021
Date of orders:	22 December 2021
Decision date:	22 December 2021
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See Directions at [103].
Catchwords:	DEVELOPMENT APPLICATION – boarding house development – development on a narrow lot – development on an isolated lot - whether proposed development is compatible with the character of the local area – whether proposed side setbacks are acceptable – whether proposed breach of side boundary envelope control is acceptable - application of cl 4.15(3A) of the EP&A Act – reasonable alternative solutions.
Legislation Cited:	Contaminated Land Management Act 1997, Div 2, Pt 34 Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 4.17, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 55, 77 State Environmental Planning Policy No 55 -Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 8, 29, 30, 30A, 30AA, Pt 2, Div 3 State Environmental Planning Policy (Housing) 2021, Sch 7 Warringah Local Environment Plan 2011, cll 2.3, 4.3, 6.2, 6.4
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 69 Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 19 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Texts Cited:	Northern Beaches Community Participation Plan Warringah Development Control Plan 2011 Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy, April 2021
Category:	Principal judgment
Parties:	BL2093 Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Seymour (Applicant) S Patterson (solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2021/43433
Publication restriction:	No