Bligh House Pty Ltd v Inner West Council

[2016] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bligh House Pty Ltd v Inner West Council [2016] NSWLEC 1235
Hearing dates:	31 May 2016
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: boarding house; privacy and overshadowing impacts, whether design of the development is compatible with the character of the locality
Legislation Cited:	Ashfield Local Environmental Plan 2013; State Environmental Planning Policy (Affordable Rental Housing) 2009; Environmental Planning and Assessment Act 1979
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191; Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009; Frank and Susana Tomas v Ashfield Council [2016] NSWLEC 1183
Texts Cited:	Interim Development Assessment Policy 2013; Building Code of Australia
Category:	Principal judgment
Parties:	Bligh House Pty Ltd (Applicant)   Inner West Council (formerly Ashfield Council) (Respondent)
Representation:	Counsel: Mr A Pickles SC (Respondent)   Solicitors: Mr G McKee, McKees Legal Solutions (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2016/154397

Judgment

1. Ashfield Council (now Inner West Council) refused Development Application No. 2015.197.1 which proposed partial demolition of an existing boarding house and construction of a new four level extension to the rear to create a 27 room boarding house above basement carparking at 30 Chandos Street, Ashfield on 9 February 2016. The owners of the site, Bligh House Pty Ltd are appealing that decision.

2. The applicant was granted leave to rely on amended plans following a conciliation conference and those plans reduce the number of rooms and also address some of the original contentions in the case.

3. The main issues in the case are whether the design of the development is compatible with the character of the local area, the impacts of the proposal, particularly in regard to privacy and overshadowing are acceptable and internal amenity is appropriate.

The site and its context

4. The site is legally defined as Lot 1 in DP 169164 and known as 30 Chandos Street, Ashfield. It contains an existing two storey boarding house consisting of 10 rooms and is licensed for 12 beds. The building is of Victorian architectural style with its bay window setback 4.644m from the front boundary. A driveway runs along the southern side of the building and accesses at grade parking and open space areas. The site is located at the bend of the street.

5. Surrounding development is primarily residential and consists of residential flat buildings, multi-dwelling housing and some detached dwelling houses. The height of those buildings varies from one to four storeys and there is no consistent architectural style of character. The predominant built form comprises three storey brick residential flat buildings with pitched tile roofs.

6. The property immediately to the north at 32 Chandos Street (No 32) is a two and three storey multi-dwelling housing development and is listed as a local heritage item under Ashfield Local Environmental Plan 2013 (LEP). To the immediate south is a single storey detached dwelling house, No 28 Chandos Street (No 28).

Background and the proposal

7. The development application was lodged with the council on 12 October 2015 with the appeal against its deemed refusal filed on 23 November 2015. The council ultimately refused consent on 9 February 2016. A conciliation conference was held by another Commissioner of this Court which was ultimately terminated however the application prepared amended plans following that process and was granted leave to rely on those plans on 29 March 2016. It is those plans now before the Court.

8. The proposal is for the retention of the front portion of the existing building, demolition of the rear section and construction of a two and four level addition to the rear above basement carparking. Those four levels provide for two accommodation levels with all rooms incorporating mezzanine bedrooms above the entry level living/kitchen/bathroom areas.

9. The original section of the building would also be modified to accommodate three rooms, one for a caretaker and a common room at ground level and four rooms at first floor level.

10. The new additions would provide 10 two level rooms accessed at ground level through the main front building entry and a further 8 two level rooms accessed from that entry and stairs/lift within the main front section of the building.

11. Overall the development provides a total of 24 boarding rooms (44 beds), a caretaker’s room (1 bed) and common room.

12. The proposed basement would be accessed from a ramp utilising the existing driveway crossing at the south-eastern corner of the site and accommodate parking for 6 cars including one accessible space, 6 motor cycles and 11 bicycles. Garbage storage, plant and a cleaning store would also be provided with internal access to the upper floors available from the lift and stairs.

13. The ground floor boarding rooms include a small enclosed courtyard/outdoor terrace area. The primary area of common open space is located within the north western corner of the site and a smaller area in the south western corner. A fire egress path runs from the rear corridor around the western and northern sides of the building.

14. The main 4 level addition would be constructed 3m from the side boundaries and the rear section of that addition has been reduced in height from the plans determined by the council through the deletion of two upper level rooms in an attempt to improve solar access to the adjoining dwelling No 28.

The planning controls

15. The site is zoned R3 – Medium Density Residential under the LEP and boarding houses are permissible with consent. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the R3 zone 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.

16. Part 4 of the LEP contains Principal development standards and those relevant to the case are 4.3 Height of Buildings and 4.4 Floor Space Ratio (FSR). Under the relevant maps, the maximum building height is 12.5m and maximum FSR is 0.7:1. The proposed development has a maximum height of 10.7m, 1.8m below the maximum height. The FSR is 1.08:1 and relies on the FSR bonus provision in clause 29(1)(c)(i) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). That provision provides for an additional FSR of 0.5:1 in zones where residential flat buildings (RFBs) are permissible. RFBs are permissible in the R3 zone and therefore a maximum FSR of 1.2:1 applies to the development.

17. The site adjoins a heritage item, No 32 and therefore the provisions of clause 5.10(5) of the LEP are relevant and in the following form:

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

18. The original heritage contentions raised by the council were resolved through changes made to the roofline of the Victorian section of the existing building and are no longer pressed.

19. Clause 29 of SEPPARH contains standards that cannot be used to refuse consent and Clause 30 standards for boarding houses to which a consent authority must be satisfied before consent can be granted. Those clauses are in the following form:

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).

30 Standards for boarding houses

(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,

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

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

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

(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.

20. Pursuant to clause 30A of SEPPARH for consent to be granted a consent authority must take into consideration whether the design of the development is compatible with the character of the local area.

21. There is no Development Control Plan applying to the site or the development. Rather, the council relies on a document entitled Interim Development Assessment Policy 2013 (IDAP). That document has not been the subject of any public consultation and accordingly, when asked the status of the document, Mr Pickles SC, for the council, advised that it could be put no higher than a public interest matter pursuant to s79C(1)(e) of the Environmental Planning and Assessment Act 1979 (EP&AAct). In particular the council references Part C18 Boarding Houses and Part C5 Multi-Unit Development – Flat Zones in regard to Solar Access of the Policy.

22. The Part C5 provisions apply to all land zoned R3 and apply to RFBs and multi dwelling housing (townhouses) and ancillary buildings and structures. Whilst not strictly applying to boarding houses, the provisions of Part C5 require sunlight to at least 50% (or 35sqm with minimum dimension 2.5m, whichever is the lesser area) of the principal private area of ground level private open space of adjacent properties is not reduced to less that there house between 9am and 3pm on 21 June and where existing overshadowing by buildings and fences is greater than this, sunlight is not further reduced by more than 20% at any one time.

23. Any private courtyard within a development should also achieve 3 hours of sunlight to 50% of its area, between 9am and 3pm on 21 June.

24. Existing solar access should be maintained to at least 40% of the glazed areas of any neighbouring north facing living room/dining room windows, for a period of at least three hours between 9am and 3pm in mid-winter. If existing solar access is already less that this standard, it should not be further reduced by more than 20% at any one time.

The issues

25. The contentions in the case are:

• Overdevelopment of the site;

• Adverse privacy impacts to adjoining neighbours;

• Adverse overshadowing impacts;

• Development is not compatible with the character of the local area;

• Inadequate and poorly located communal open space;

• The proposed internal amenity is poor.

26. Contentions regarding stormwater, traffic and a Plan of Management (POM) were resolved through the provision of additional information.

The evidence

27. The hearing commenced on site with evidence heard from two objectors to the proposal. One, representing the owners of Nos 28 accompanied the parties and the Court within that dwelling and spoke of the overshadowing impacts of the development. He was particularly concerned about the shadowing of a centrally located bedroom which is also used as a study/TV room (described by the planning experts as the TV room) and the formal dining room of the dwelling and sought an assurance that boundary fencing would be of sufficient height to protect privacy to the main bedroom and that the garden in the Manager’s courtyard was not elevated so as to create shadowing of the main bedroom. He agreed that the amendments made to the plans that were originally before the Council improved solar access to the rear living area and backyard of that dwelling.

28. Other concerns relate to the overlooking from the “eyebrow” windows on the upper floor which, whilst opaque glass are operable; concerns about the lack of detail within the POM and the poor internal amenity of the development resulting from the privacy screens, lack of outlook, too many rooms and lack of head height. He is concerned these non-compliances represent a genuine risk to the mental well-being of occupants and the proposal fails to provide basic levels of amenity for residents and will result in a poor social outcome.

29. The other objector is a resident of No 32 and whilst he did not object to the development as a whole he sought assurances that privacy would be protected through the provision of a 2.2m high boundary fence, that limitations were imposed on the use of the fire egress pathway adjacent to the common boundary, that spacing of louvres proposed for privacy was adequate to ensure protection from overlooking and the POM was improved and enforced through a condition of any consent.

30. Expert town planning evidence was heard from Mr A Minto for the applicant and Mr P North for the council.

Overdevelopment of the site

31. They agree that the development provides a FSR of 1.08:1 which is compliant with the standards in SEPPARH however Mr North says that the proposal has an apparent scale of a building with a FSR of 1.24:1 due to the two storey void areas which, while not technically contributing to gross floor area (GFA), do contribute to the bulk and scale of the structure. This exacerbates the scale impacts of the proposal in a context in which the anticipated scale is ordinarily 0.7:1 under the LEP.

32. Mr Minto says the void areas do not result in any unreasonable bulk and scale impacts because the proposal is provided with a building height less than the maximum permitted under the LEP; it is compliant with front, side and rear setbacks; noes not result in unreasonable overshadowing or privacy impacts and provides an appropriate landscape treatment to the perimeter of the development and a high quality architectural outcome. The void areas significantly contribute to enhancing internal amenity for residents of the development by creating a sense of openness to what would otherwise be relatively small rooms.

Privacy

33. It was agreed that subject to resolution of the design measures, privacy could be addressed however, after discussion during the hearing there was no agreement as to the appropriate spacing of the louvres.

34. The design of the development relies on privacy screens on all mezzanine level windows in the ground floor rooms and the living area windows of the upper level rooms Nos 13-18 and 21. This is after further amendments were made to the plans to relocate the windows to rooms 19 and 20 (upper rear rooms) from the side elevation to the rear.

35. On the upper level mezzanines the use of frosted opaque glass in the awning windows is proposed with those windows restricted to a 40 degree maximum opening. These are the “eyebrow” windows referred to above and, according to the details plans attached to the joint report have a maximum aperture of 400mm in height and sill height of 1.2m above floor level.

36. The louvre details provide for 100mm slats angled at 33 degrees and, for the lower section (the ground level mezzanines) opposite the full height windows, would be spaced with a 50mm gap. On the upper section ( upper living rooms) that gap would increase to 87mm where they are opposed to fixed and openable window sections that have a sill height of 200mm above floor level and head height of 1.6m. The louvres are configured in a box arrangement and sit some 250mm from the outer wall face.

37. Mr Minto says that the proposed spacing of the louvres is an appropriate response in a R3 zone from a mezzanine bedroom on the ground floor with a separation distance of 7.5m to the wall of the adjacent dwelling and the filtered nature of the view. Mr North says that whilst the ground floor is satisfactory and the bedroom area is within the limits of acceptability but not ideal and the proposed treatment does not completely address privacy. For that reason he says the spacing of the louvres should be reduced by 20mm and the council proposes a condition that reflects that requirement.

33. Mr North says that whilst this would address his privacy concerns it compounds his concern about the amenity of the rooms and says that they would be fairly claustrophobic. The proposal to introduce Velux skylights to the upper level rooms would give some sky views but not much outlook from those rooms with the bedrooms having almost no outlook. He considers this to be an issue, particularly for the south facing rooms which will get daylight but no solar access.

34. Mr Minto says that it would be possible to see out of the rooms when seated and that the rooms have appropriate amenity.

Overshadowing

40. The planners reference the controls in the IDAP and agree that none of the windows in the northern elevation of the main dwelling will retain three hours solar access on 21 June and that the north facing living room in the rear addition will achieve that standard as will the private open space.

41. Mr Minto says the dining room window is setback approximately 1.4m from the side boundary, is a formal dining room in addition to the informal dining facilities (breakfast bar) located within the recently created kitchen/living room addition located at the rear of the property that will maintain compliant solar access. He says the overshadowing of the dining room window is acceptable because the dining room is in addition to informal dining facilities included within the kitchen area and would be more likely to be used during the evening, it is located within the northern side boundary elevation and within 1.4m from the boundary and is in a R3 zone within which RFBs having a height of 12.5m are permissible. He concludes that in the circumstances of the case it would be unreasonable to require solar access to be maintained to this window.

42. Mr North says the window currently receives direct solar access to its entire surface for at least 3 hours between 9am and 3pm in mid-winter and the proposal reduces this to zero. Because this is one of the principal living rooms the extent of overshadowing is not acceptable.

43. The experts share similar views in relation to the TV room, with Mr Minto saying it appears to be a secondary TV room/study in addition to the primary living room at the rear which will maintain compliant solar access. Mr North says that because it is a frequently used room as both a study and TV room the extent of overshadowing is not acceptable.

Character

44. There is no agreement as to whether the design of the development is compatible with the character of the local area.

45. Mr North says the adjacent heritage item at No 32 has been carefully designed with stepped roofs and the second storey in an attic configuration so that it presents as a low scale structure. The proposal however, presents as a clearly four storey building in stark contrast to the modestly scaled and carefully modulated two storey form of the adjacent heritage item. That scale is in stark contrast to the existing structure at No 28 which is a modestly scaled Federation dwelling with carefully conceived, low scale additions.

46. Mr Minto disagrees and says the proposal does not present as a four storey building either by definition or appearance and, as a result of the proposed setbacks, landscape treatment and overall design will not result in any unreasonable impacts upon the heritage items and does provide for an appropriate bulk/scale relationship between the two buildings. He says the proposal provides for a development outcome consistent with the desired future character (DFC) of the locality in the R3 zone with the 12.5m building height control.

47. Mr North says the orientation of all rooms in the addition towards the side boundaries results in a carriage style development contrary to the controls in the IDAP and results inevitably in adverse privacy impacts which are exacerbated by the minimal side setbacks and extensive side facing glazing which must be fitted with extensive privacy screening to render it acceptable. It is this form of development that is strongly discouraged by the IDAP.

48. Mr Minto says the orientation of boarding rooms towards side boundaries is a common component of most boarding house developments and is largely a result of the reduced unit/room size and rectangular nature of the site whereby its depth is greater than its width. A requirement to only orientate rooms to the front or rear of the site would not result in an efficient or economic built form. Notwithstanding this he says the proposal incorporates appropriate measures so as to ensure that there are no unreasonable amenity impacts resulting from the orientation of the boarding rooms.

49. Mr North says the proposal, presenting as a four storey building is contrary to the DFC envisaged and articulated in the IDAP as being a maximum of three storeys with an additional fourth storey permitted if it is fully contained within an attic level which does not have roof protrusions larger than a typical dormer window. He says the proposal includes a fourth storey which is highly visible by virtue of a continuous skillion dormer extending along almost the entire length of the structure and as a consequence, presents a clear four storey scale in a locality in which it is reasonably anticipated that a three storey scale is the predominant character.

50. Mr Minto says the proposal is properly characterised as being two storey (plus ground level mezzanine and attic, does not present as a four storey building and, with a height of approximately 10.2m, is around 2.3m less than the applicable 12.5m height control applicable to the site.

Communal open space

51. It is agreed the area of communal open space is numerically compliant with the provisions of SEPPARH however Mr North says there is a poor relationship between that space and the communal living room which is separated by way of a long corridor some 23m in length. This poor relationship reduces the amenity of both areas and is at odds with currently accepted principles of building layout. Mr Minto says the separation of areas was in response to resident concerns in relation to socialising and potential amenity impacts.

52. Both experts agreed that the function and usability of the space could be improved and additional conditions were prepared that reflect that agreement.

Internal amenity

53. Mr Minto confirmed his opinion that internal amenity is appropriate and would be improved through the addition of skylights. This is addressed through consent conditions. He says the proposed mezzanine/attic configuration will provide occupants with a high level of amenity and will have the feel of a room having a greater size than the floor areas would suggest. Despite the louvres there will still be appropriate light and ventilation to the rooms and there will not be a claustrophobic feel.

54. The evidence in relation to floor to ceiling heights was provided with a misunderstanding about the proper provisions of the Building Code of Australia (BCA). Mr McKee, for the applicant, attempted to address this issue during the hearing through the preparation of amended plans however these still did not comply with the BCA which, according to information now before the Court, requires a 2.4m height for not less than 2/3 of the floor area of the room.

55. The cross section plans (DA07E) provided to the Court after conclusion of the hearing provide for floor to ceiling heights of 2.3m for the that part of the ground floor living/kitchen/bathroom areas below the mezzanine, 2.4m for the mezzanine bedrooms and 2.2m for the upper level living/kitchen/bathrooms that are below mezzanine. The bedroom areas of the upper floor are described in those plans as attics and if they were to be considered attics, the relevant requirement is, according to the submissions, a height of 2.2m for 2/3 of the floor area. Through the deletion of wardrobes to rooms 13, 15, 17 and 19, the bedrooms would comply as attic rooms. No wardrobes would be provided to those rooms and the wardrobe area to rooms 14, 16, 18 and 20 are reduced with consequential increase to the floor space of those rooms.

56. Because the height of the building is a critical factor in determining the solar impacts of the proposal, the Court was concerned that for the development to comply with the BCA it would be necessary to increase the overall height of the building. To address this concern, the applicant engaged a BCA consultant who has made the following comments:

The hierarchy of the Building Code of Australia (BCA) is such that it is a requirement to comply with the applicable Performance Requirement, in this case being FP3.1 which states that "a habitable room or space must have sufficient height that does not unduly interfere with its intended function."

There are a number of methods for complying with this requirement:

1. Providing a performance solution that can be demonstrated as satisfying the heads of consideration under the applicable BCA Performance Requirement.

2. Providing a performance solution that can be demonstrated as providing a level of occupant amenity at least the equivalent of that anticipated in the deemed-to-satisfy compliant situation.

3. Satisfying the applicable deemed-to-satisfy (DTS) provisions of the BCA.

In this case the Council has correctly argued that the space is not an attic room, as it is not located inside the roof of a building. The design does not satisfy the applicable DTS provisions.

That DTS non-compliance does not render the design non-compliant with the BCA as this is only one of several methods of determining BCA compliance.

The proposed design incorporates elements that could be evaluated as being compliant with BCA Performance Requirement FP3.1, namely the mezzanine style design open to a large space below and a ceiling height that is at least that which would be anticipated from an equivalent room within an attic space. The effect of these elements are such that it is highly likely that it would be determined as being compliant with FP3.1 by a building certifier at the construction certificate stage.

It is also necessary to be aware of the provisions of the EP&AAct and Regulations as they relate to the determination of compliance with the BCA for proposed developments. The legislation provides some authority for the Council to determine what if any upgrade works should be applicable to an existing building under Clauses 93 and 94 of the Regulation however the determination of BCA compliance for any proposed works falls under the authority of the certifying authority as part of the Construction Certificate application process under Division 2 of Part 8 of the Regulation. It is good practice for councils to consider BCA compliance for new works at the Development Application stage in order to ensure that it won't be necessary for significant changes to be made to the design at the Construction Certificate stage. That consideration should be limited to the capability of the designed to comply, including the application of any appropriate performance solutions, rather than the assessment of absolute compliance.

57. To address this requirement the parties agree to proposed condition C(1A) which reads as follows:

To ensure that siting, height and overshadowing objectives are achieved, all wall locations, finished floor levels and ridge levels must be in accordance with that approved under this consent.

58. Other conditions agreed address neighbour concerns in relation to fence heights, landscaping and finished ground levels. A POM in a form acceptable to the council has been provided and a condition of consent (condition H22) imposed that requires the premises to be managed and operated in accordance with that plan.

Conclusion and findings

59. It is common ground that the numerical provisions of clauses 29 and 30 of SEPPARH are met. Pursuant to clause 30A of SEPPARH for consent to be granted I must take into consideration whether the design of the development is compatible with the character of the local area.

60. The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are:

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal's appearance in harmony with the buildings around it and the character of the street?.......

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character........

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials.

61. In determining this issue, it is necessary to determine the extent of the local area. During the site view I was taken along Chandos Street to the south and east of the site. The dominant built form in that area comprises three storey walk-up residential flat buildings with some two storey RFBs and one and two storey detached dwelling houses.

62. The retention of the façade and front rooms of the existing dwelling house assists in maintaining the streetscape of the local area however what must also be considered is the design of the rear additions. Are the physical impacts on surrounding development acceptable and is the proposal’s appearance in harmony with the buildings around it and the character of the street?

63. In this regard, I prefer the evidence of Mr North. The design of the building is considerably larger than that which it adjoins and would not sit in harmony with that development. That adjacent development, particularly the adjoining heritage item has been designed to present as a low scale structure. The proposed development does have the appearance of a four storey building and whilst I accept that the building height development standard provides for a building height in excess to that which is proposed, that is not the test in this case. For development to be compatible, it must respond to the essential elements that make up the character of the locality. The proposal does not.

64. The extensive reliance on privacy screens that also add to the bulk of the building does not reflect the character of the area and further contributes to the physical impacts on adjoining properties.

65. Having found that the design of the proposed development is not compatible with the character of the local area, and whilst not a barrier, in the circumstances of the case it is inappropriate to grant consent.

66. For the sake of completeness, I also assess those other matters required under s79C of the EP&AAct. The LEP and SEPPARH are the primary environmental planning instruments that apply to the development. I am satisfied that the proposal is consistent with the objectives of the R3 zone and, having regard to the council deleting its contention regarding heritage, I find that there are no heritage grounds that would prevent the grant of consent.

67. There is no development control plan (DCP) that applies to the site. The IDAP is not a DCP, has not been the subject of public consultation and therefore, consistent with the findings of Pearson C in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 and Brown C in Frank and Susana Tomas v Ashfield Council [2016] NSWLEC 1183, I place little weight on its provisions. I accept Mr Pickle’s submission that, at its highest, the policy could be considered under the public interest.

68. My assessment of the impacts of the development can therefore not be guided by the IDAP however, having regard to the evidence, I consider that the proposal would not have any adverse environmental impacts on the natural environment however, having assessed the development is not compatible with the character of the local area, it would adversely impact that environment. There are no social or economic reasons that would prevent consent being granted, other than amenity concerns that I address below.

69. There is no evidence that the site is not suitable for development as a boarding house. What is in question is the design of that development and how it sits in the local area. That is unsatisfactory.

70. In relation to submissions made in response to the council notifying the application and the public interest, I do not consider that the impact of the proposal on the solar access to the dining room and bedroom which is used as a TV room/study would, on its own, be a reason to refuse consent. The main living room of that dwelling and its private open space will continue to receive 3 hours sun in mid-winter, a standard common to the majority of planning controls within the metropolitan area.

71. I do agree with Mr North that the amenity of the proposed boarding rooms has been compromised by the need to install privacy screens and smaller windows and that, coupled with the reduced head height in those rooms is another undesirable aspect of the application. There is no reason why affordable housing should not provide a high level of amenity and in this case I do not consider that it would be in the public interest to approve a development that has an inferior level of internal amenity. The applicant had, through the conciliation process, an opportunity to properly address the contentions in the case and continued to attempt to further resolve the remaining contentions during and even after the hearing. Whilst some of the issues were addressed, other flow on impacts occurred which had the result of further reducing the amenity of the boarding rooms. This included loss of wardrobe space, lower floor to ceiling heights and some unknown “alternate solution”.

61. For these reasons, as well as the issue of compatibility, it is not appropriate to grant consent.

62. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 2015.197.1 for partial demolition of an existing boarding house and construction of a new four level extension to the rear to create a 25 room (45 bed including manager’s room) boarding house above basement carparking at 30 Chandos Street is refused consent.

3. The exhibits, other that exhibits A. B, G and 1, are returned.

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Sue Morris

Commissioner of the Court

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Decision last updated: 09 May 2018