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[2021] NSWLEC 1053

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust v Blacktown City Council [2021] NSWLEC 1053

Hearing dates:

19 November 2020

Date of orders:

12 February 2021

Decision date:

05 February 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application DA-16-05368 (as amended) for the demolition of the existing dwellings and construction of a 2-storey boarding house containing 14 boarding rooms and an onsite manager’s room with car parking and landscaping at 72 Newton Road, Blacktown subject to the Council’s conditions in Exhibit 6 (as set out in Annexure A).

(3)   The exhibits are returned except for A, B, C, E, L, 4 and 6.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – character of local area – design excellence – public interest

Legislation Cited:

Blacktown Local Environmental Plan 2015 cl 7.7

Environmental Planning and Assessment Act 1979 (NSW) s 4.15

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 29, 30, 30A, 30AA, 54C

State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019

Cases Cited:

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126

Project Ventures Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Blacktown Development Control Plan 2015

Category:

Principal judgment

Parties:

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
A Pearman (Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2018/74087

Publication restriction:

No

Judgment

1. These Class 1 proceedings follow a successful s56A appeal against the decision of Commissioner Horton in Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 (Madss (No 2)). They concern a development application for a boarding house at 72 Newton Road, Blacktown (the site). As the Court ordered an exclusionary remitter that precludes the Commissioner’s further involvement, the appeal was remitted to me for determination in accordance with the evidence and the Court’s ruling in respect of the correct application of cl 7.7(3) of the Blacktown Local Environmental Plan 2015 (BLEP) and cl 29(2)(d)(ii) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) to the facts.

The site

2. The site is located at the intersection of Newton Road and Allawah Street and is best described as a narrow corner land parcel. It has a 13.75m primary frontage to Newton Road, a splay frontage of 2.155m and a secondary frontage of 47.285m to Allawah Street. It is within an established residential area, and presently accommodates an older style single storey dwelling and secondary dwelling with a pergola and garage.

3. St Patrick’s Church and Primary School are located to the south of the site and both the church and the school have access from Allawah Street. The surrounding development comprises mostly single storey dwellings of different materials and ages together with some existing multi dwelling housing and dual occupancy development.

4. Blacktown railway station and the Town Centre are nearby, and the site is within 800m walking distance to the Blacktown Bus Interchange and 160m to a local bus stop.

The proposal

5. The application (DA-16-05368), as amended, proposes the demolition of the existing dwellings and the construction of a 2-storey boarding house containing 14 boarding rooms and an onsite manager’s room with car parking and landscaping.

6. The current design, as detailed in the Revision L plans, incorporates the earlier amendments developed during the first hearing (the Exhibit A and B plans). These amendments include the reconfiguration of a boarding room to reintroduce a manager’s room with a private courtyard, a secondary entrance at the Allawah Street frontage with increased landscaping, a lower roof pitch in the central element of the two-storey form, the removal of the communal deck from the western boundary of the site and changes to stairs and room layouts.

Contentions

7. At the hearing Ms Pearman, the Council’s barrister, confirmed that the Revision L plans have reduced the issues between the parties since the earlier hearing. In that regard, she confirmed that the Council no longer raised any issue about the location of the manager’s unit and private open space.

8. The remaining contentions from the Council’s Amended Statement of Facts and Contentions (ASOFC) filed on 19 October 2018 (Exhibit 1) were identified as being:

• Contention 1 – the character test in cl 30A of the SEPP;

• Contention 5 – design excellence; and

• Contention 6 – the public interest (as it relates to design excellence and character) (Tcpt, 19 November 2020, p 14(36-45)).

9. In determining this appeal, the parties have asked me to consider the transcript of the proceedings before Commissioner Horton (Exhibit 9) - but only to the extent that it addressed the matters now pressed by the Council, through its contentions. In particular, the expert evidence of the parties’ town planners, Mr Glenn Apps (Council) and Mr Jonathon Wood (applicant), about the character of the local area and the design of the proposed development at that time. As the applicant’s senior counsel Mr Hemmings SC observed, I must assess the application myself, based on the evidence as it presently stands (Tcpt, 19 November 2020, p 18(45-50), p 19(1-50)) rather than rely upon the assessment made by Commissioner Horton. To be plain, the evidence before me includes my observations of the character of the local area made at the site view, together with the oral evidence of Mr Apps and Mr Wood given at that time by reference to cl 30A of the SEPP and cl 7.7 of the BLEP (Tcpt, 19 November 2020, p 19(3-41)) – planning evidence that was interrogated further during the experts’ concurrent evidence in Court later that day (Tcpt, 19 November 2020, p 21(29-50)).

10. The parties also tendered the expert reports and documentation from the first hearing. This included the original joint planning report (Exhibits 3) and the addendum report (Exhibit 4), the joint waste management report (Exhibit 5), the Class 1 documentation, the plans Exhibits A and B (now collected in the Revision L plans), and the Council’s bundle containing relevant legislation and the objectors’ written submissions and petitions.

11. The applicant also provided me with an updated BASIX certificate and an amended Plan of Management (POM) dated 19 November 2020. The Council has revised its draft conditions to capture the amended POM and architectural plans. The latest version is dated 18 November 2020. I have also received the further written submissions from the local objectors. Some of these submitters, including the adjoining neighbours, Dr Yulia Maleta and Mr Jure Maleta of 74 Newton Road, and Mr Harold Laybut of 37 Allawah Street, Blacktown and Gaspere Caruana of 101 Newton Road addressed me orally at the site view. Mr Mark Rix, the spokesperson for Catholic Diocese, gave his further evidence over the telephone when the hearing resumed in Court on Microsoft Teams.

12. As the merit issues concerning the manager’s room and the size of the private open space courtyard are resolved by the amended design, the evidence at the hearing centred upon whether the design of the development is compatible with the character of the local area, as defined by the planners, being a relevant consideration under cl 30A of the SEPP. They also addressed the design excellence issue posed by cl 7.7(3) of the BLEP, having regard to the design excellence criteria in cl 7.7(4)(a) to (f).

13. Before I move to a consideration of the evidence, I note that cl 30AA of the SEPP - which limits the number of boarding house rooms to a maximum of 12 in the R2 zone - does not apply to this application because the saving provision in cl 54C of the SEPP applies. In that circumstance, I must determine the present application by applying the provisions of the SEPP as if the State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019 had not commenced. Clause 30AA is to be taken into account as if the provision were imminent and certain but not determinative.

What is the local area?

14. The planners agree that the area shaded blue in the aerial photo below is the local area for the purposes of the SEPP.

15. This local area includes both sides of Newton Road, from Meroo Street to the west, to Carinya Street and Kirkman Street to the east and the properties within that visual catchment that includes part of the church and school development, the two-storey dual occupancy corner site development at 81 Newton Road also having a frontage to Meroo Street, the two-storey multi-unit development with central driveway at 80-82 Newton Road; and the two-storey dual occupancy development at 42 Balmoral Street presenting as two separate dwellings (Exhibit 3 par 19).

16. The site is located within the R2 Low Density Residential zone under the BLEP and boarding houses are a permissible use with consent. The land zoning also permits single dwellings and dual occupancies. Multi dwelling housing and residential flat buildings are prohibited.

17. The land to the north-east of the site is zoned R4 High Density Residential and boarding houses, dwelling houses and residential flat buildings, up to a height of 20m as per the BLEP map, are a permitted use. Dual occupancies and multi dwelling housing are prohibited.

18. There is no dispute between the parties, and I am satisfied on the evidence that the proposed development complies with the provisions of cl 29(2) of the SEPP in relation to landscaping area, solar access, the number of car parking spaces and room sizes. I am also satisfied about the matters in cl 30 of the SEPP. The development is also within the permissible height under the BLEP, and the proposed two storeys is a characteristic of the local area.

19. The Environmental Impact Statement (EIS) accompanying the DA states that the development has been designed to present as a large two-storey residential dwelling when viewed from Newton Road, and as an attached multi-unit housing development when viewed from Allawah Street (Exhibit E, p3). Despite the area being zoned R2 Low Density Residential, the applicant contends that being a permissible use, not all development in the R2 zone needs be low density residential to achieve the zone objectives. And, when all things are considered, the applicant contends that this development is in fact low density development.

20. I am required to have regard to the R2 zone objectives which are in the following terms:

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

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

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

21. The following provisions of the SEPP and BLEP are reproduced below for convenience and later discussion.

State Environmental Planning Policy (Affordable Rental Housing) 2009)

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Blacktown Local Environmental Plan 2015

7.7 Design excellence

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

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

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

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

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

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

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

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

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

(f) how the development addresses the following matters—

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

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

(v) bulk, massing and modulation of buildings,

(vi) street frontage heights,

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

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

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

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

(5) In this clause—

Blacktown Development Control Plan means the Blacktown Development Control Plan 2006, as in force on the commencement of this Plan.

Lay evidence

22. The notification of the proposed development generated community opposition, and I have read the objectors’ petitions and written submissions lodged with the Council (Exhibit 2). Collectively, the submitters believe that the proposal is an overdevelopment of the site. Some say it is out of character with the existing low-density residential development in the local area because of its bulk and scale on a prominent corner block. Others take issue with the proposed use in a residential area proximate to a church and school, expressing concerns about transient, unsavoury lodgers adversely impacting the existing amenity of the area.

23. The neighbours adjoining the western boundary of the site are particularly concerned about the visual impact of the development given its proximity to their outdoor barbeque area and rear yard. They also fear for their safety believing that the use will generate unacceptable noise and behaviour at the premises even with the onsite manager arrangement. They describe it as an inappropriate residential use for the site.

Planning evidence

24. Despite the objectors’ views, Mr Apps and Mr Wood are agreed that the site lends itself to redevelopment for affordable housing as envisaged by the SEPP. Relevantly, they raise no planning issue in respect of the appearance of the development to Newton Road - which they deem satisfactory in terms of the landscaping treatment and the bulk and scale of the building. They also consider the modified pitched roof as an appropriate response to the predominate roof forms evident in the local area (Exhibit 3 at pars 15 and 17).

25. These experts have also agreed that the R4 zoned land within the local area and opposite the site will change over time to residential flat buildings, with a potential maximum height of 20m and no prescribed floor space ratio. The planners also agree that given the age of the housing stock in the local area, this will likely lead to redevelopment over time within the R2 zone, with Mr Apps observing that such redevelopment to date has been gradual and Mr Wood suggesting the transition is well underway.

26. However, these experts, do not agree as to whether the proposal is in keeping with the character of the local area (Exhibit 3 at pars 22-23). Mr Apps gave evidence that the development by its form and massing is incompatible and should be broken up to reduce its bulk and scale. In his assessment, the increased setback in the centre of the building with enhanced landscaping does not make it compatible with the character of the local area in terms of bulk and scale. He describes the presentation of the building to Allawah Street as unlike any development that exists or would likely be proposed in the R2 zone and better suited to the R3 zone. And, while he recognises the Church and school as being part of the streetscape, he refers to them as “anomalous”, contending that they should not factor into any assessment of residential character in the street (Exhibit 3 at par 39). He also considers as relevant in informing the future character of the local area the fact that there has been little take up of dual occupancy and multi dwelling housing development in the area – despite its permissibility since the 1988 version of the BLEP. Mr Apps gave evidence that he expects that older single dwelling stock in the area will be replaced over time with new single dwellings or dual occupancies, and that it is highly unlikely that they would be of such a bulk and scale and massing as that proposed by this application. He suggests that even a duplex fronting Allawah Street would likely have a greater level of articulation over its length than does the building prposed in this application. Ultimately, Mr Apps is of the view that single dwelling development will remain the predominate form of development in the local area for quite a while.

27. In assessing the compatibility of the design of the development with the character of the local area, Mr Apps said that compatibility does not require a test for sameness but harmony of built form (Exhibit 3 at par 37). And, in this case the design of the development is out of keeping with the character of the streetscape for reasons of bulk and scale and is thereby incompatible with the character of the local area. In reaching this conclusion, Mr Apps said that cl 30A requires a consideration of “the character of the local area” and not a consideration of the likely future character. And, accepting that the predominant form of development in the relevant area is single dwelling development, the proposed development is out of character.

28. Mr Wood has a different view about the character of the local area. He believes that the redevelopment of the R2 area will present a change in building typologies within that zone and relies on the existing development at 70 Newton Road and 52A Allawah Street as examples of that emerging local character - relatively large 2-storey buildings of face brick with limited articulation -development which he considers to be compatible with the design of the proposal. Adding to that eclectic mix, Mr Wood said that the existing townhouses at 80-82 Newton Road – some 50m from the development – also contribute to the local character.

29. Mr Wood has assessed the site coverage or building footprint of the applicant’s development as being in scale with the existing built forms on the site. Based on his calculation the proposal has a building footprint of 300m² (or 40% site coverage), and the existing dwellings have a building footprint of 240m². An increase in site coverage which he describes as “not significant”. While Mr Wood acknowledges that the existing buildings are single storey, given the age of the housing stock in the locality, he believes that the established character is not the only consideration for the purposes of cl 30A. Mr Wood places significant weight in this case on the desired future character of the area as observed in the emerging building forms pointed out at the site view within the local area. In particular, Mr Wood invited me to consider the larger two storey dwellings at Nos 56 and 64 Allawah Street - constructed in the last 15 years with a much larger footprint, height and bulk and scale compared to the existing single storey stock and the Church and school development proximate the site and the R4 land opposite when forming my view about the local character of the identified area.

24. After stepping through the three key elements of the character test set out in the planning principle in Project Ventures Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Ventures) (Exhibit 3 at pars 28-32), Mr Wood said that the design of the development ticked the relevant criteria to be compatible with the character, particularly when regard is had to the emerging character of the R2 zone land as well as the observed forms at 80-82 Newton Road. He found the physical elements of the building acceptable and providing a suitable transition to the landscaped setbacks to the south of the site in Allawah Street. The development has a compliant height, conforming setbacks to that required for a dual occupancy of a similar size, a landscaped recessed element in the centre – separating the building form from the neighbour to the western boundary and frontage to Allawah Street. Whereas, Mr Apps, after carrying out the same exercise, concluded that the design of the development is out of character, notwithstanding the compliant height and setbacks of the building to be in keeping with those in the local area as is are the landscaping setback areas in keeping with the landscaping in the local area. Mr Apps believes that other elements have a role to play in determining character, such as streetscape rhythm, bulk and scale (Exhibit 3 at par 45) and when these matters are taken into account, the proposed design is not compatible.

25. The experts addressed the amendment to the SEPP in cl 30AA which limits boarding houses in the R2 zone to no more than 12 bedrooms as relevant as part of the public interest. Mr Apps said it spoke to the future density of a boarding house on this site under the SEPP and supported his view of likely development in the local area. Mr Wood described the clause as a crude density control and if applied meant that the potential density of a 12-room boarding house on this site was 24 people, being a higher density than the 17 persons proposed in this application.

Consideration and findings – cl 30A of the SEPP

32. Clause 30A of the SEPP requires that I consider whether the design of the development is compatible with the character of the local area before the grant of development consent. The local area as defined by the planners in Exhibit 3 is the area of focus.

33. In considering whether the design of the development is capable of sitting harmoniously in that local context, I have taken into account the expert evidence and my observations at the site view.

34. Th character of the local area I observed was in a state of transition - with emerging development consistent with the R4 zone opposite as part of that character. The development in Allawah Street is different to that emerging in Newton Road. Allawah Street is presently more eclectic with a mixture of dated housing, single storey and some two-storey dwellings, a school and the Catholic Church. That part of Newton Road within the local area includes the two-storey dual occupancy corner site at 81 Newton Road that also presents to Meroo Street, the two-storey multi-unit development with central driveway at 80-82 Newton Road; and the two-storey dual occupancy development at 42 Balmoral Street presenting as two separate dwellings.

35. As Mr Wood stated in his evidence, the future development of the local area under the planning controls is clearly a relevant consideration in the mix when determining the character of the local area for the purposes of cl 30A of the SEPP. The type of redevelopment emerging, in my opinion, is best described by Mr Wood’s evidence. The R2 zone anticipates buildings of two storeys and up to 9m in height - large dwelling houses like those observed at 56 and 64 Allawah Street and dual occupancies. The R4 land in the visual catchment of the local area will have residential flat development of up to 20m in height with no FSR control.

36. In my opinion, the consideration invited by cl 30A of the SEPP requires more than standing opposite the site and comparing the development in that streetscape view. In the joint report, Mr Wood criticised Mr Apps’ approach for that reason. He said “…an assessment of the residential character of the street” is not appropriate when the focus of cl 30A is on the character of the local area (Exhibit 3 at par 39). I agree with Mr Wood. This is too small a compass and a fair criticism of Mr Apps’ evidence in this case. Mr Apps restricted his assessment of the local character by focussing on the existing older style residential development in the R2 zone and ignoring the Church and the school. He placed little emphasise on the emerging larger two-storey dwellings in the street and the high rise R4 land opposite the site (Tcpt, 19 November 2020, p 22(1-5)).

37. Compatibility is not ‘sameness’. Buildings can exist together in harmony without having the same density, scale or appearance - although as Mr Wood observes as the difference in these attributes increases harmony is harder to achieve: Project Ventures. In this case, the design of the development in terms of its density, scale and appearance will be compatible or harmonious with the character of the identified local area for the reasons expressed by Mr Wood. His evidence on this issue accords with my observations of the local area and relevantly includes the existing built form - the Church and school and the emerging larger built form in Allawah Street and the existing multi-unit development in Newton Road together the R4 land opposite the site the whole local area as is required by cl 30A of the SEPP.

38. Clause 30A of the SEPP does not require me to find that the design of the development is compatible with the local area in order to grant consent but rather requires me to consider that question based on the evidence. For the reasons stated, I consider that the design of the development is compatible with the local area. As a consequence, cl 30A is not an impediment to the grant of development consent in this case.

Design excellence

39. Because the site is located within an area mapped as “Design Excellence” cl 7.7(3) of the BLEP precludes me from granting consent to the development unless I consider the development exhibits design excellence. In considering whether the development exhibits design excellence, I must have regard to the criteria listed in cl 7.7(4).

40. The experts addressed some of the criteria in cl 7.7(4) of the BLEP in their original joint report (Exhibit 3) and at the direction of Commissioner Horton prepared an addendum joint report (Exhibit 4) addressing all of the criteria. This written evidence was supplemented by oral evidence from the planners at the first hearing (Feb 2019 transcript) and at the hearing before me.

41. With respect to the criteria in cl 7.7(4) of the BLEP, in their joint report the experts agreed that the development satisfied criteria (a), (b), (c), (d), (e), (f)(i), (f)(ii), (f)(iii) - in part, (f)(iv) -in part, (f)(vi), (f)(vii), (f)(viii) and (f)(ix). However, they disagreed with respect to satisfaction of criteria (f)(v) and where the criteria in some instances were multifaceted with respect to three of the listed matters (cl 7.7(4)(f)(iii), (iv), (x)).

Criteria where the experts express different views

42. At the hearing before Commissioner Horton, Mr Apps changed his evidence in relation to an aspect of criteria (a).

43. In the addendum report, he had agreed with Mr Wood that the architectural design, materials and detailing is appropriate for a boarding house. Furthermore, he accepted that the design, materials and detailing were typical of a contemporary style of residential development that one would expect to see in the local area when redeveloping a site.

44. However, when asked whether the development exhibits a high standard of architectural design, he answered as follows; “I guess possibly not. Whether it is appropriate in the area and for a boarding house? Well, that’s a different argument as to whether it’s a high standard” (Tcpt, 19 November 2020, p 38 (15-32)). Mr Apps said that when writing the supplementary report, he had focussed on the word “appropriate” to the building type and location rather than “whether it exhibits design excellence”.

45. Mr Wood’s evidence remained unchanged in all respects.

46. With respect to the disagreement between the experts as to whether or not the proposed development satisfied cl 7.7(4)(f)(iii) of the BLEP - whether the proposal is compatible in the streetscape, Mr Wood gave evidence that:

“…the proposal was compatible with the streetscape and the proposal acknowledges the streetscape constraints through providing vehicular access from Allawah Street nominating the primary entry to Newton Road and providing second entry point to Allawah Street to activate this frontage. The proposal responds to the setbacks and landscape setting in both streetscape settings.”

47. Mr Apps said that the development was out of keeping with the character of the streetscape for reason of bulk and scale. His focus was on the Allawah Street streetscape, not the Newton Road streetscape – the primary address.

48. With respect to the disagreement between the experts as to whether or not the proposed development satisfied cl 7.7(4)(f)(iv) of the BLEP, the planners were in agreement that the development provided suitable separation and setbacks to adjoining properties. At the hearing before me, Mr Wood confirmed his written evidence in the original joint report (Exhibit 3) and addendum that:

“…the bulk and scale and presentation is acceptable, relative to the neighbour, just by virtue of that central indentation of 1.5m extending 3m and obviously the removal of the deck is beneficial, but my view on bulk and scale and presentation is that …neighbour – remains that I find it to be satisfactory” (Tcpt, 19 November 2020, p 25(12-18)).

49. Although agreeing that the removal of the deck was a positive, Mr Apps said that the visual impact of the building to the neighbour to the west was a result of poorly articulated north and south wings (Tcpt, 19 November 2020, p 24(45-50)).

50. As to the dispute concerning compliance with the criterion in cl 7.7(4)(f)(v) of the BLEP relating to bulk, massing and modulation of the building, Mr Wood gave evidence “…that the bulk, massing and modulation of the building is suitable noting the compliant setbacks, extent of articulation, and use of brickwork, render and colour bond roofing.” And, while he accepted that the removal of the deck on the western boundary improved the amenity for this neighbour and that the central indentation of 1.5m extending to 3m was beneficial, he confirmed that in his view “… on the bulk and scale and presentation is that … it remains - I find it to be satisfactory” (Tcpt, 19 November 2020, p 25(12-18)).

51. In the supplementary joint report, Mr Apps addressed this criterion in the following terms:

“… the massing and bulk of the building is out of keeping with the form of development in the visual catchment and the zone. The recessed central element is not sufficiently setback to modulate the bulk and massing of the development. [He accepted] … that the materials are contemporary and in keeping with current residential trends for new development, however do not adequate serve to break up the massing of the building.” (Exhibit 4)

52. At the hearing before me, he remained concerned with “… the level of articulation or, in [his] view, lack thereof of the northern and southern parts of the building, with the continuous lines of the privacy [screens] …” (Tcpt, 19 November 2020, p 24(45-50)).

53. The experts were in partial agreement and disagreement as to whether the development satisfied cl 7.7(4)(f)(x) of the BLEP relating to the impact on, and any proposed improvements to, the public domain being satisfied or not.

54. In the supplementary report, Mr Wood gave written evidence that “…the development presents an improved streetscape outcome to the public domain and is a suitable design response to the context and character of the locality”. Whereas, Mr Apps said that he:

“…accepts that the development is an improvement over what is currently on the site in terms of replacing a dwelling that is at the end of its lifespan with a new development, as well as fencing. Notwithstanding, the proposed development is out of keeping with the built forms in Allawah Street in terms of bulk a, massing and insufficient modulation.” (Exhibit 4)

Consideration and finding cl 7.7(3)

55. At [58]-[69] of Madss (No 2)), Moore J sets out how I must approach cl 7.7 of the BLEP. In short, cl 7.7(3) requires that I have regard to each of the matters listed in subcl (4) before reaching a conclusion as to whether or not the development exhibits design excellence. Although the Court held that the listed criteria are not exhaustive, for present purposes no further criteria ha been identified by the parties or by me. Therefore, my consideration is, in this case, confined to the listed criteria.

56. Relevantly, the clause does not define “design excellence” nor does the clause seek design excellence. The stated objective of the clause in cl 7.7(1) is “…to ensure that the development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Blacktown”.

57. It is clear from Exhibit 4 that the planning experts are in fulsome agreement that the design of the development satisfies many of the listed criteria. And, where the experts disagree, I prefer Mr Wood’s evidence because it accords with my understanding of the design of the development and observations taken at the view. Relevantly, Mr Wood did not change his opinion when tested in cross-examination. Mr Apps was less convincing because he did waiver and did change his opinion in respect of the satisfaction of criteria (a). That said, I do not consider that his evidence suggests a significant breach of criteria (a). In the addendum report, he accepted that the architectural design, materials and detailing are appropriate for a boarding house. He also agreed with Mr Wood that the design, materials and detailing is typical of a contemporary style of residential development that one would expect to see in the local area as a result of a redevelopment of lot (Exhibit 4).

58. Later, in Court he said that he had focussed on the word “appropriate” and he changed his evidence to answer in respect of the high standard of architectural design to “I guess possibly not" ((Commissioner Horton) Tcpt, 19 November 2020, p 38(25)). As Mr Hemmings submitted, the inconsistency in Mr Apps’ evidence undermines its weight. I agree. So too does his contradictory evidence. In assessing that the development “probably does not achieve” criteria (a) – a high standard of architectural design, he still accepts that the materials and detailing are appropriate to the building type and location. It is difficult to reconcile Mr Apps’ conclusion in respect of this aspect of criterion (a) with his view that “the form and external appearance of the development will improve the quality of the public domain” on the Allawah Street frontage – which was the essence of Mr Apps’ evidence in answer to criterion (b). Mr Apps said “the form and appearance of the development will improve the quality of the public domain when having regard to the poor presentation of the existing dwelling on the site, as well as the extent of the colourbond fencing on the Allawah Street frontage” (Exhibit 4).

59. As Mr Hemmings’ submits the words in criteria (a) must be read in context with the purpose of the clause in mind. This provision has the objective of ensuring that development exhibits design excellence that contributes to the natural, cultural visual and built character values of Blacktown. The site is on a corner at a busy intersection and roundabout. Looking back from the site, there is a mixture of single storey and two storey dated housing stock. The proposal conforms with all of the Council’s controls for either a single dwelling or dual occupancy on the land and in some instances, overachieves with a rear setback of 14m rather than the 6m as required. Site setbacks are compliant, the height is compliant, the design uses pitched roofs for consistency with its neighbours. There is an emerging R4 zone in the vicinity and two large existing two-storey houses on the eastern side of Allawah Street.

60. The development is clearly compatible with the character of that area as described. And, in that context, not the CBD or Darling Harbour context - I agree with views of the experts as expressed in the addendum report that “The architectural design materials and detailing is appropriate for a boarding house”. Furthermore, that “…the design, materials and detailing is typical of a contemporary style residential development that one would expect to see in the local area as a result of redevelopment.” In considering criteria (a), I accept that the clause requires a high standard of architectural design, a high standard of materials and a high standard of detail. That is what I need to find but it is qualified by two things – building type and location. On that basis, I accept that the high standard referred to in Clause 4(a) must change with location and type of building and in this case, the evidence supports a finding that this affordable boarding house in Blacktown is of an appropriate high standard of architectural design, materials and detail given its building type and location. In the absence of a definition of the word ‘high” in the BLEP and adopting its ordinary meaning, the high standard of architectural design, high standard of materials and high standard of detailing appropriate to the building type and location will change depending on the facts.

61. In this case, I am satisfied that criteria (a) is achieved for the reasons expressed in the addendum report despite Mr Apps’ changed evidence. Although, in forming that view, the clause does not require a finding or tick against each criterion in order to decide that the development exhibits design excellence for the purpose of cl 7.7(3). It is open to me to accept that one or more of the criteria is not met and still conclude that the development exhibits design excellence and grant development consent.

62. In respect of the matters in cl 7.7(4) of the BLEP that the experts agree about, I have considered their evidence and agree with that criteria being satisfied for the following reasons.

Criteria the experts agree are achieved

63. In addressing the various matters to which I must have regard in cl 7.7(4) of the BLEP for the purpose of answering the question I am obliged to answer in cl 7.7(3), the experts were agreed in the addendum report (Exhibit 4) that the development achieves most of the listed criteria.

64. With no expert to contradict their agreed assessment, that evidence is difficult to dismiss and after assessment I accept it.

65. Generally, the matters agreed between the experts concern details of the design or the relationship with the environs which I have had opportunity to consider onsite and through the detailed plans and evidence. For example, the experts’ agreed view that the form and external appearance of the development will improve the quality and amenity of the public domain accords with my understanding of the proposed built form when viewed from the public domain. Criteria (b) is achieved.

66. The only view corridor is that along Newton Road and I accept that the design does not detrimentally impact any view corridor. Criteria (c) is achieved.

67. After review of the plans and the Council’s DCP control to protect solar access, I accept that the development will not detrimentally impact any land protected by the solar access controls. In this case, the solar access standard applied by the Blacktown Development Control Plan 2015 (BDCP) is that a minimum of 50% of adjoining open space achieve 4 hours solar access on the winter solstice. The proposal satisfies that control. Criteria (d) is achieved.

63. The BDCP does not contain specific boarding house controls. Nonetheless, I accept the experts’ assessment that the proposed boarding house follows the required setbacks associated with a dual occupancy development to provide a guide as to the suitability on the setbacks, landscaped areas and presentation of the development. Criteria (e) is achieved.

64. I am satisfied that the development addresses the following matters in criteria (f) in cl 7.7(4) of the BLEP:

1. The land is suitably located a boarding house. The site is proximate to public transport and the town centre.

2. Given its proximity to transport and services, the mix of rooms is acceptable.

3. The site is not near a heritage item or within a heritage conservation area and therefore heritage issues are not a consideration for the development proposal.

4. The development provides for suitable separation and setbacks to adjoining properties. The rear setback is 14m more than required under the control and the western setback is compliant and the built form has been articulated to separate the development from that boundary to protect the neighbours’ existing amenity. The removal of the deck and conditioning of a POM on the consent together with an onsite manager will, in my assessment, assist controlling the residents’ behaviour to ensure the neighbours’ amenity. I am satisfied that criteria (iv) is achieved in the amended design.

5. The street frontage heights at 2 storeys complies with the relevant planning controls – the development is in fact 1.3m below the current height control.

6. The development does not generate unacceptable overshadowing impacts to the adjoining properties due to the orientation of the lot and the development’s compliant setbacks and height. I accept that planners’ expert assessment that the scale of the development will not impact on wind speeds to surrounding properties or the public domain. The development uses colours which ensure reflectivity – darker tones to the face brick and roofing and avoids highly reflective materials. The development has clearly been designed to comply with BASIX requirements and incorporates eaves to the building to assist in regulating heat gain in the summer months.

7. In the context of a boarding house development, I am satisfied that the development achieves the principles of ESD. In that regard, I note that there is no impact on ecology or biodiversity land.

8. The development is proximate to public transport and within walking distance and has bike storage encouraging cycling and non-vehicular transportation. The development expands affordable rental housing to cater for the needs of lower income people.

9. The development is satisfactory in terms of pedestrian, cycle vehicular and service access and circulation requirements as assessed by the experts and I accept their uncontradicted evidence.

70. Mr Apps’ concerns about the built form in Allawah Street in terms of massing and insufficient modulation – in response to a consideration of “the impact of the presentation of the development to the street and impact on the public domain…”. Clause 7.7(4)(f)(x) is a relevant issue. However, I agree with Mr Wood’s assessment that the development is a suitable design that responds to its context and character of the locality. In that regard, I note that it retains a street tree on Allawah Street and provides additional landscaping in the front setback. The articulation of the building design has been improved by the recessed central element and roof change and additional landscaping. These elements contribute positively to the built form and contribute to a landscaped setting of the site when viewed from the public domain. In my assessment, the development will have no adverse impact on the public domain.

71. In relation to criteria (f)(iv), I am content that there is a satisfactory and compliant relationship of the development with other development (existing and proposed) on neighbouring sites in terms of separation, setbacks, amenity and urban form for the reasons articulated by Mr Wood in his written evidence. The building setback to the neighbour on the western boundary is more than compliant and the varied materials now proposed in terms of colours and finishes and the recessed central element, removal of the deck and with additional landscaping Mr Wood has assessed serves to break the bulk and massing of the building when viewed from that neighbouring development.

72. Having had regard to the written reports addressing the various matters set out in cl 7.7(4) of the BLEP , in particular the five-page addendum report setting out in tabular form the position of the planners and their oral evidence for the purpose of making the cl 7.7(3) determination, I consider the development exhibits design excellence and therefore cl 7.7(3) does not preclude the grant of development consent in this case.

Conditions (Exhibit 6)

73. As stated earlier, this application proposes a new generation boarding house and not a group home. It offers 14 rooms plus an onsite manager.

74. The conditions of consent proposed by the Council require the operation of the premises in accordance with a comprehensive plan of management.

75. In my assessment, the removal of the deck and its replacement with landscaping as required by conditions 13.6.4 and 13.6.5 of the Council’s draft - proximate to the neighbour’s yard on the western boundary is an improvement to the design and their continued amenity. So too does the increased setback of the central indentation of 1.5m extending to 3m, in appropriate colours and finishes. In terms of bulk and scale and presentation, I accept Mr Wood’s expert assessment that the development is satisfactory.

76. I am also satisfied that amended plan of management which is required by the conditions of consent – which includes the recommendations of the Day Design Acoustic Report of 17 November 2020 - and signage will assist to restrict the use of the outdoor common area to control the behaviour of the occupants and their visitors to ensure the amenity of the neighbours.

Conclusion

77. There is no jurisdictional impediment to the grant of consent in this case arising from the provisions of the SEPP or the BLEP. I have earlier explained why that conclusion is reached.

78. The development offers accommodation for 17 boarders in 14 boarding rooms plus an onsite manager. Clause 30AA, if applicable, would allow up to 24 boarders in 12 rooms on this site. The provision, while not determinative, is a relevant consideration and indicates that the proposed 14-place boarding house is an appropriate development for the site.

79. In my assessment of the evidence, the amended application offers affordable housing in a development that achieves the objectives of the SEPP and the R2 zone and other relevant provisions of the BLEP for the reasons above. An approval of the amended application is clearly in the public interest after assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW). Accordingly, I propose to make the following orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-16-05368 (as amended) for the demolition of the existing dwellings and construction of a 2-storey boarding house containing 14 boarding rooms and an onsite manager’s room with car parking and landscaping at 72 Newton Road, Blacktown subject to the Council’s conditions in Exhibit 6.

3. The exhibits are returned except for A, B, C, E, L, 4 and 6.

80. To facilitate the making of the final orders, I make the following directions:

1. The Council is to file the conditions in Exhibit 6 in the appropriate form (using the Court’s template for development consents) by 4pm on Wednesday, 10 February 2021 and a Word copy of the same.

Addendum made on 12 February 2021

81. I handed down my reasons for judgment in this Class 1 appeal on 5 February 2021 proposing orders to uphold the appeal subject to conditions. I invited the parties to prepare the conditions in the requisite template and to provide them to the Court. Having received the conditions, after review they are consistent with my reasons and I now make the following orders.

Orders

82. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-16-05368 (as amended) for the demolition of the existing dwellings and construction of a 2-storey boarding house containing 14 boarding rooms and an onsite manager’s room with car parking and landscaping at 72 Newton Road, Blacktown subject to the Council’s conditions in Exhibit 6 (as set out in Annexure A).

3. The exhibits are returned except for A, B, C, E, L, 4 and 6.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (309993, pdf)

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Amendments

12 February 2021 - Correction to cover sheet.

Decision last updated: 12 February 2021