Contill Holdings Pty Ltd ATF Revay Discretionary Trust v Randwick City Council

[2021] NSWLEC 1543

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Contill Holdings Pty Ltd ATF Revay Discretionary Trust v Randwick City Council [2021] NSWLEC 1543

Hearing dates:

15-16 September 2021

Date of orders:

01 October 2021

Decision date:

01 October 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

See orders at [67] below.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – whether motorbike parking in the basement should be counted towards the calculation of the gross floor area – whether the design of the proposed development is compatible with the character of the local area

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15

Environmental Planning and Assessment Regulation 2000, cl 55(1)

Randwick Local Environmental Plan 2012, cll 1.2, 2.2, 4.3, 4.4, 4.5, 4.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 8, 26, 27, 29, 30, 30A

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Cases Cited:

Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709

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

Texts Cited:

NSW Department of Planning and Environment, Managing Land Contamination: Planning Guidelines – SEPP 55 – Remediation of Land (1998)

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Contill Holdings Pty Ltd ATF Revay Discretionary Trust (First Applicant)
Deer Valley Pty Ltd ATF Deer Valley Trust (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Reid (Applicants)
M Astill (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicants)
Randwick City Council (Respondent)

File Number(s):

2020/362850

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the Council’s refusal of the applicant’s development application DA/573/2020 (DA) for a new 67-room boarding house with ancillary facilities and basement carpark at 87 & 89-91 Middle Street, Kingsford (the site).

2. Following constructive joint conferencing between the various witnesses and the preparation of joint expert reports, the applicant proposed an amended application at the hearing (Exhibit F). The amendments, while reducing the shortcomings of the original proposal, did not resolve the appeal.

Issues

3. The issues that remain in dispute are:

1. Whether the motorbike parking in the basement should be counted towards gross floor area (GFA);

2. If the motorbike parking in the basement is counted, whether the amended cl 4.6 written request (Exhibit G) should be upheld;

3. Whether the bulk and scale of the proposal, as it presents to Middle Street, is acceptable having regard to the character of the local area. Consequentially, whether the Court should refuse the application on the basis that the design of the development is not compatible with the character of the local area pursuant to cl 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); and

4. The appropriate treatment of the fence along the boundary.

4. Accepting that I have jurisdiction, the central issue between the parties is the presentation of the development to Middle Street. More particularly, whether the design of this façade – with 9 separate private open spaces in the form of balconies and terraces protruding from the building – is compatible with the character of the local area. The Council contends for a reduction in the scale of the development to Middle Street. Specifically, a 1 metre setback from the Middle Street frontage and the removal of the pop out balconies at the second level. The applicant believes any further amendment of this façade is unnecessary as the development is compatible in the relevant context.

The site and its context

5. The site is located on the southern side of Middle Street. It is comprised of Lot 1587 and Lot 890 in DP 752011 and has an area of 1,398m². The rear boundary adjoins Centre Lane.

6. To the west the site adjoins Shaw Reserve, which is a public open park with a children’s playground. Further to the west, is No. 81 Middle Street which contains a four-storey residential flat building with ground level parking accessed from Middle Street. To the east the site adjoins No. 93 Middle Street which contains a detached single storey residential dwelling fronting Middle street with a detached four-car garage facing the rear lane. On the opposite side of Middle Street are a number of one and two-storey residential dwellings and two and four-storey residential flat buildings. On Centre Lane, there are a number of one and two-storey residential dwellings.

7. The site has an interface with the R2 Low Density Residential Zone under the Randwick Local Environmental Plan 2012 (RLEP 2012) across Middle Street. The maximum height for the site and for the R2 zoned land is 9.5m. The floor space ratio (FSR) for both zones varies as shown in the RLEP 2012 FSR Map (Exhibit 5 at par 3.32).

8. The Council’s Planning Panel’s assessment report in respect to this application described the local area as:

“…undergoing transition from a mix of one and two storey houses to residential flat buildings with a medium density form of development that will determine the ‘desired future character’ in the context of this R3 zone, and affordable housing is part of the existing mix.”

(Exhibit 1 Tab 4 p 62)

9. It also acknowledged that the desired future character of the area is set by the planning controls that apply to the site because the site is not contained within an area specifically considered under Part E of the Randwick Comprehensive Development Control Plan 2013 (RDCP 2013).

10. The contextual aerial photo (below), prepared by the Council’s planner, Mr Faridy, shows the site and the surrounding built form in the local catchment which informs the character of the area. The green shading identifies existing single and two-storey dwelling houses. The orange shading depicts three-storey residential flat buildings and the red shading shows sites containing four-storey residential flat buildings including those opposite the site.

The proposal

11. The proposal, as amended includes the following:

1. Demolition of all existing structures.

2. Construction of a three (3) storey boarding house over basement parking comprising:

Basement

1. Plan DA 03 Basement (Issue 8) has been amended so that it is now the same as the plan previously identified as DA 25 Basement Alternative (Issue 7). The basement car parking has been increased from 24 to 26 car parking spaces (22 standard cars + 2 accessible cars + 2 share car spaces).

2. 14 motor bike parking spaces.

3. 2 x Lift and fire exit stairs.

4. Vehicular access is provided off Centre Lane along the rear boundary.

Ground Floor

5. 1 x manager’s room, 16 x single boarding rooms and 1 x double boarding room.

6. 2 x communal rooms and communal open space.

7. 14 bicycle racks.

8. Bin storage area along eastern boundary towards the rear Centre Lane.

9. A central courtyard and outdoor sitting areas.

10. External common toilet and laundry towards the rear.

11. The fence to Centre Lane has been amended so that it is 500mm north of the lane and is not a metal palisade fence.

12. A 500mm wide hardstand area has been added adjacent to Centre Lane.

13. The landscaping within 600mm deep planter box has been added on top of the eastern side of the OSD tank.

14. Perforated metal sheet privacy screens have been added to the eastern side of the two stairs.

15. The breezeway on the first and second floor have been decreased in size with external planter boxes placed past the eastern breezeway.

16. The external gate on the northern side of the northern stair has been moved 1m to the west.

First Floor

17. 24 x single rooms and 1 x double room.

Second Floor

18. 24 x single rooms and 1 x double room.

Statutory framework

12. The statutory instruments applicable to the proposal are:

1. Environmental Planning and Assessment Act 1979 (EPA Act), and the associated Environmental Planning and Assessment Regulation 2000 (EPA Regulation)

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP)

4. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

5. Randwick Local Environmental Plan 2012 (RLEP 2012)

13. The non-statutory plan:

1. Randwick Comprehensive Development Control Plan 2013 (RDCP), particularly the following Parts:

1. Part A – Introduction

2. Part B – General Controls

3. Part C2 – Medium Density Residential (used as a guide – discussed below)

4. Part C3 – Adaptable and Universal Housing

SEPP ARH

14. As stated above, the DA is made pursuant to the SEPP ARH. The aims of the SEPP ARH are:

3   Aims of Policy

The aims of this Policy are as follows—

(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,

(c)  to facilitate the retention and mitigate the loss of existing affordable rental housing,

(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.

15. Relevantly, the SEPP ARH prevails over other environmental planning instruments, to the extent of the inconsistency: at cl 8.

16. Division 3 of the SEPP ARH applies to boarding houses (at cl 27(1)) on land within a zone R3 Medium Density Residential: cl 26(g).

17. The SEPP ARH sets out development standards which, if satisfied, cannot be the basis of refusal of the DA. In this case, the evidence is that the amended application satisfies the standards in cl 29(2) in respect to height of building, landscaped area, solar access and private open space but falls short in respect to car parking. The development, as amended also achieves the standards in cl 30 of the SEPP ARH with respect to the internal amenity of the development.

18. As identified at the outset, cl 30A of the SEPP ARH is a primary issue in contention. Clause 30A provides as follow:

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.

RLEP 2012

19. The Council’s zoning map in Figure 2 (below), shows the site within the R3 Medium Density Residential zone pursuant to cl 2.2 of the RLEP 2012.

20. Relevantly, development for the purposes of a ‘boarding house’ is permissible with consent in the R3 zone under the RLEP 2012. The objectives of the R3 zone, which are a relevant consideration are set out below:

• 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 recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

• To encourage housing affordability.

• To enable small-scale business uses in existing commercial buildings.

21. The aims of the RLEP 2012 at cl 1.2 (below) are also a relevant consideration.

1.2   Aims of Plan

(1)  This Plan aims to make local environmental planning provisions for land in Randwick in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.

(2)  The particular aims of this Plan are as follows—

(aa)  to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,

(a)  to foster a liveable city that is accessible, safe and healthy with quality public spaces and attractive neighbourhoods and centres,

(b)  to support a diverse local economy and business and employment opportunities for the community,

(c)  to support efficient use of land, vibrant centres, integration of land use and transport, and an appropriate mix of uses,

(d)  to achieve a high standard of design in the private and public domain that enhances the quality of life of the community,

(e)  to promote sustainable transport, public transport use, walking and cycling,

(f)  to facilitate sustainable population and housing growth,

(g)  to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick,

(h)  to promote the importance of ecological sustainability in the planning and development process,

(i)  to protect, enhance and promote the environmental qualities of Randwick,

(j)  to ensure the conservation of the environmental heritage, aesthetic and coastal character of Randwick,

(k)  to acknowledge and recognise the connection of Aboriginal people to the area and to protect, promote and facilitate the Aboriginal culture and heritage of Randwick,

(l)  to promote an equitable and inclusive social environment,

(m)  to promote opportunities for social, cultural and community activities.

22. The maximum permissible height of buildings for the site is 9.5m pursuant to cl 4.3(2) of the RLEP 2012 and it is agreed that the building is now compliant.

23. The maximum permissible FSR for a building on the site is 0.75:1 pursuant to cl 4.4(2) of the RLEP 2012.

24. The applicant seeks to utilise the benefit of cl 29(1)(c) of the SEPP ARH to attain additional FSR above the 0.75:1 FSR afforded by cl 4.4 of the RLEP 2012. The resultant FSR is 1.25:1 with an allowable GFA of 1,747.5m² (with the bonus 0.5:1 FSR pursuant to SEPP ARH).

25. Clause 4.5(2) of the RLEP 2012 defines “floor space ratio” in the following terms:

(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

26. The Dictionary at the end of RLEP 2012 defines “gross floor area” as:

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

(a)  the area of a mezzanine, and

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

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

but excludes—

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

(e)  any basement—

(i)  storage, and

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

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

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

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

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

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

27. The relevant provisions of the RDCP 2013 for the proposal include:

1. Part B - General Controls. This Part contains key controls that apply to all DAs and covers design, heritage, ecologically sustainable development, landscaping and biodiversity, trees and vegetation, recycling and waste, traffic, parking and access, water management, and foreshore scenic protection areas.

2. Part C2 – Medium Density Residential Controls. This Part establishes provisions for all types of residential accommodation and includes guidance on site planning, building envelopes, building design, setbacks, open space, landscaped area, amenity, car parking and ancillary elements. This Part is applied as a guide only.

3. Part C3 – Adaptable and Universal Housing. This Part contains specific controls applicable to boarding houses.

Public submissions

28. A number of local residents have lodged objections to the proposed boarding house (Council’s bundle). Some of them gave additional oral evidence to the Court at the hearing via Microsoft Teams.

29. Collectively, the objectors consider the proposal to be an overdevelopment of the site. They expressed concern about the height and footprint of the development and its presentation to the park and the streetscape. They believe it is out of character with their local area. The objectors also fear that the boarding house use will exacerbate the existing parking shortfall in the street and locality. They describe Middle Street as narrow and congested at the best of times and believe that additional street parking cannot be accommodated. Several of the submitters raised issue about the nature of the likely residents of the boarding house; being an undesirable element. They object to the idea that the residents of the boarding house will have an outlook toward the park. They are concerned about the security of their property and the safety of children using the park.

30. There is also some concern about the construction process resulting in property damage to the street infrastructure and adjoining sites. Others believe the development is not economically viable given the number of boarding houses already developed in the area.

Expert evidence

31. The Council relied on the evidence of Sohail Faridy (planning), and Jason Rider (traffic). The applicant relied on Jeff Mead (planning) and Ken Hollyoak (traffic). Only the planners were required to give oral evidence.

The proposal provides sufficient onsite parking

32. The minimum car parking requirement under cl 29 of the SEPP ARH of 34 onsite car parking spaces is not achieved by the proposed development. Nonetheless, the Council’s traffic expert, Mr Rider, is satisfied that the 26-car spaces (including 2 carshare vehicles) proposed within the basement will be sufficient to accommodate the future parking needs of the proposed development (Exhibit 6 par 2.27). Whilst acknowledging the high parking pressures in the locality, Mr Rider gave expert evidence that the rate of parking provided by this proposal is consistent with recent approvals which more accurately reflect the parking demands of modern boarding houses (Exhibit 6 par 2.24).

33. Although Mr Rider’s expert evidence about the sufficiency of the development’s onsite parking arrangements is at odds with the views expressed by several lay objectors, I found his expert evidence to be cogent and well researched. Moreover, it is supported by the findings of the 2019 Study commissioned by South Sydney Regional Organisation of Council’s (SSROC), entitled “Occupant Survey of recent Boarding House Developments in Central and Southern Sydney” which showed that 67% of boarding house residents had no car in relation to their modes of travel use for the three key travel reasons, and no more than 23% used a car for travel.

34. For those reasons, I am prepared to accept it as an objective assessment of the parking needs for this development and find that the quantum of parking is adequate for the proposed development.

The proposal complies with the FSR development standard

35. For the purpose of the FSR calculation, the applicant relied on the FSR calculation plan DA12 Issue 8 (Exhibit F). The GFA identified on the FSR calculation plan gives a FSR of 1.18:1 (1656.3m²), which complies with the FSR development standard when subject to the bonus FSR of cl 29(1)(c)(i) of the SEPP ARH is 1.25:1 is utilised.

35. The Council’s planning expert disagreed with this calculation of the GFA, on the basis that the external walkways at ground level, and open-ended breezeways areas on each level of the proposal and the basement motorbike parking area should have been included in the GFA calculation.

36. To avoid further dispute, at the close of the hearing, the applicant agreed to include the breezeways in its calculations. This resulted in a GFA of 1746.8m^2, and a compliant FSR of 1.249:1. It is only through the inclusion of the basement motorbike parking that the proposal results in an exceedance of the FSR development standard – the additional 57.3m² generating an overall GFA of 1,804.8m², and FSR of 1.29:1. Put simply, the difference between the parties turns on the definition of “gross floor area”, in particular “carparking spaces”. Essentially, a legal question of the interpretation of the term “gross floor area” under the RLEP 2012 (set out above at [26]).

37. The Council submits that the only possible basis on which the motorcycle parking would be excluded is under (g) of the definition as being “car parking to meet any requirements of the consent authority”. It contends, on the face of it, that motorcycle parking is not car parking. Moreover, had the legislature intended that motorcycle parking be excluded from the GFA, then it would have expressed paragraph (g) of the definition as “parking spaces (and not “car parking”) to meet any requirements of the consent authority” or “motor vehicle parking to meet any requirements of the consent authority” – but it did not. On that basis, it submits that I cannot conclude that the choice of the narrower term “car parking” was not deliberate. There is simply no basis to conclude that the concept of a car under the RLEP 2012 includes a motorcycle or motor vehicle.

38. In circumstances where there is no definition of “car parking” in the RLEP 2012, the applicant submits that the defined terms “car park” and “parking space” within the Dictionary to the RLEP 2012 are instructive:

car park means a building or place primarily used for the purpose of parking motor vehicles, including any manoeuvring space and access thereto, whether operated for gain or not.

parking space means a space dedicated for the parking of a motor vehicle, including any manoeuvring space and access to it, but does not include a car park.

40. Ultimately, the applicant submits that the definition of “car park” is clearly a reference to a land use and a “parking space” for motor vehicles includes motor bikes. It submits that the extremely literal and narrow interpretation of ‘car parking’ advocated by the Council should be rejected and the logical approach taken by the Court in Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709 at [55] adopted.

41. I agree with the Council that the calculation of GFA must be consistent with the definition of “gross floor area” in the Dictionary of RLEP 2012. Applying common law principles of interpretation relevant to a proper construction of cl 4.4 and the definition of “gross floor area” in the Dictionary, I accept that the definition of “car park” is clearly a reference to a land use. As such, it is intended to cover all “motor vehicles” rather than just “cars”. Furthermore, a “parking space” is an expansive definition that includes parking of motor vehicles. Taking practical and purposive approach to the construction of the RLEP 2012, I am of the opinion that the reference in the GFA definition to “car parking to meet any requirements of the consent authority” must necessarily include all motor vehicles. As the applicant submits, if the definition is construed in the manner contended by the Council, it would lead to an absurd result. A consent authority would need to condition the development consent to exclude the parking of all vehicles other than cars (for example utility vans and small trucks) in basement car parks if the area had been excluded from the GFA.

42. As a fall-back position the applicant relies on a cl 4.6 written request (Exhibit G) to justify a relaxation of the standard in cl 4.4 of the RLEP in this case. However, for the reasons outlined, there is no need for a cl 4.6 written request as I am of the opinion that the FSR standard is not breached. For the above reasons, I accept that the proposed motor bike parking is encapsulated in the term “car parking” under the GFA definition and thereby exempt from the calculations.

Overdevelopment of the site

43. In the joint planning report and in concurrent evidence, Mr Faridy identified symptoms of overdevelopment that the proposal exhibits to include:

1. the intrusion of the ground level Room G01 into the 4m eastern boundary setback - which prejudices the single storey property to the east as well as contributing to the bulk of the building when viewed from Middle Street, and

2. the inclusion of Rooms 207-210 on the second floor (Plan DA 06) as they present an unacceptable bulk to Middle Street.

44. Mr Faridy suggested that these rooms be redesigned and other provisions for the space made as follows:

1. Room G01 should be deleted to allow a full 4m setback from the eastern boundary for landscaping. This is intended to allow for a better design for the main entrance, possibly with an entrance foyer with a reception area separate to the common area.

2. Rooms 207-210 should be deleted and redesigned, and a pitched roof form presented to Middle Street. This is intended to alleviate the substantial built form that presents to the R2 zone directly opposite the sites. The area behind under the new roof, he suggested, may provide an opportunity for a larger common area and/or roof deck.

45. He was also critical of the design of the two sets of open stairs to the east which he believes result in an unacceptable level of intrusion to the adjoining property in terms of noise and potential overlooking. He suggested these stairs be moved or treated to provide acoustic and visual privacy.

46. Mr Faridy also required the deletion of the windows in bedrooms of the units 107,110,117,120 207, 210, 217 and 220 which, in his assessment, offer little additional benefit to the occupants but have substantial amenity impact on the properties to the east.

47. Mr Faridy also sought a 6m setback from the front boundary with landscaping rather than the proposed paving and changes to the bin area which he judged to be deficient.

48. As it played out, by the end of the hearing the applicant had taken up Mr Faridy’s design changes and to a large extent addressed the Council’s criticisms of the development through its final amendments to the application (Exhibit F). Mr Faridy conceded as much whist giving concurrent evidence. That is, apart from his concern about the presentation of the development to Middle Street.

The design of the development is compatible with the character of the local area

49. The concept of character, and the extent to which a particular development achieves compatibility with the character of the local area is inherently subjective. Nonetheless, cl 30A requires that I consider this matter before the grant of development consent, and the Council has elevated the issue of compatibility as a primary reason for refusal. After an assessment of the development against terms of the planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSW LEC 191 (Project Venture) (Exhibit 5 par 3.1), Mr Faridy said that the latest amendments to the design did not change his view that the design of the development is incompatible with the character of the local area. He repeated the views expressed in his written evidence namely:

“(i) The local built character is predominately residential and predominately represents older housing stock. With regards to building typology and architectural style, there is no identifiable character. This is primarily due to the fact that not much building activities have taken place in the vicinity of the Site in last 40 or so years. It is therefore critical for any new development to be consistent with the established planning controls such that it conforms with the desired future character of the area and assist in setting a desirable precedence for future development.

(ii) The size and scale of the 3-storey development visually contrasts with the immediately surrounding buildings, including the neighbouring park to the west and a single storey dwelling house to the east.

e) The planning principal acknowledges that there are situations where the planning controls envisage a change of character rather than recognising existing building elements. The desired future character of the area is assessed in accordance with the objectives of the R3 Medium Density Residential zone pursuant to the RLEP. The desired future character of the area is considered to be buildings that comply with current planning controls. Therefore, the proposal is not reflective of the desired future character and is not in harmony with the street.

(Exhibit 5 p 17)

50. Although accepting that the character of the local area is comprised of a wide range of building types, ages, heights, setbacks and landscape treatments, Mr Faridy was firmly of the view that the second storey and roof of the proposed building needed to be redesigned in order for it to be compatible with the character of the local area. He believes that the presentation of the development to Middle Street is “too busy” in the streetscape and the nine separate private open spaces in the forms of balconies and terraces facing Middle Street are foreign elements within the visual catchment. For those reasons, Mr Faridy is of the opinion that the development does not sit in “harmony” with the character of the local area (existing or as desired), having regard to the objectives of the zone and other relevant planning controls, whilst accommodating the higher density facilitated by the SEPP ARH. In order to achieve a more compatible form to the potential redevelopment of the adjoining site at No. 93 Middle Street and the R2 zoned properties across Middle Street, Mr Faridy requires the deletion of some of the balconies and a setback of 1m at the second level.

51. Mr Mead does not accept these changes to the northern façade as necessary to achieve compatibility with the character of the local area. With respect to the tests of compatibility in Project Venture, he gave evidence that the proposal satisfies the first test as the amended design does not result in any unreasonable physical impacts. Secondly, the building envelope is compatible with the character of the area and immediate vicinity – with regard to bulk and scale. In concurrent evidence, Mr Mead explained that the design takes it cues from the two 4-storey developments opposite the site and the residential flat building to the west in terms of setbacks and height whilst at the same time respecting through landscaped setbacks the adjoining single storey dwelling and the park. Mr Mead emphasised the appropriateness of the modulated front façade with ground floor communal open spaces and two levels of residential above in the context of adjoining building setbacks, and endorsed the articulated framed elements and appropriate roofing fronting Middle Street as compatible with the character of the development in the local area now and into the future. Not the same but in harmony with the character of existing development and future development in the area as anticipated by the zone objectives.

52. The Court was not asked to take a view of the site and the local area in this case. Instead, the parties were content to provide me with a detailed pictorial analysis of the relevant local area through photos (Exhibit 5 Annexure F). Importantly, this evidence was more than enough to give me a clear understanding of the relevant character of the local area for the purposes of cl 30A. I accept that the local area is comprised of a relatively diverse mix of residential development including 1-2 storey residential dwelling houses, 3-4 storey residential flat buildings and multi dwelling developments. The neighbouring properties immediately adjoining the site contain a residential dwelling – which is undeveloped and underdeveloped according to the experts, and a local public park containing children’s play equipment. Opposite the site and further to the east and west there are single dwellings, 1960s style four-storey residential flat buildings and multi dwelling properties. Mr Faridy’s colour-coded contextual photo helpfully identifies the distinction between undeveloped sites and those which have been redeveloped for medium-density housing within the relevant catchment.

53. While the RLEP 2012 and RDCP 2013 development controls do not anticipate the additional FSR permitted in accordance with the SEPP ARH, the additional FSR does not impact the height of the proposal - which sits within the maximum 9.5m height control limit nor the boundary setbacks. The development is compliant in that regard. And, as the Council’s Planning Panel report in respect to the application acknowledges a boarding house development on this site is an acceptable form of development and anticipated, it then comes down the acceptability of the proposed design in the context of its compatibility with the character of the local area.

54. For the reasons outlined by Mr Mead, summarised above, I am satisfied that the current development has been designed to ensure compatibility with the medium-density character, the scale and form of surrounding development and that anticipated within the R3 zone. Relevantly, the R2 land opposite has the same height limit at 9.5m as the R3 zone in the locality so it is reasonable to expect that in time the older single dwellings will be redeveloped to maximise their development potential and sit in harmony with the proposal. The photos also demonstrate that the existing single dwelling houses and the redeveloped lots generally comprise linear building forms which extend deep into allotments, providing for relatively small side setbacks. This lineal footprint is followed also for newer development such as at 95 Middle Street. The proposed development offers a similar presentation to Middle Street in that regard.

55. The planning principle in Project Venture calls on an assessment to consider if the physical impacts of a proposal are acceptable and also if the proposal’s appearance is in harmony with the buildings around it and the character of the street.

56. Mr Faridy has not complained about physical impacts of the amended design in terms of overshadowing etc. He accepts that the amended proposal is now compliant with the standards in cl 30 of the SEPP ARH and has satisfied the standards in cl 29. The Council’s case is focussed on the proposal’s appearance in the streetscape which, I accept, takes contextual cues from the surrounding development, including the flat buildings directly opposite to the north and immediately west. While the two four-storey residential flat buildings opposite may well be an anomaly as the Council planning expert suggests, he also concedes they are unlikely to be redeveloped in the near future, therefore they are relevant in informing the existing character in terms of bulk and scale to Middle Street. Mr Mead gave evidence that the Council’s assessment places too little significance on the fact that the development follows the predominate line of setbacks averaging 6m behind lawn, or the fact that the development has been designed with framed and vertical elements through balcony articulation, fenestration and contemporary materiality to recognise the desirable elements of the existing streetscape and built form. Accepting that this precinct is undergoing transition, Mr Mead is of the opinion that the design of the development contributes to the desired future character of the area in accordance with the R3 zone objectives and I accept that assessment. The balconies on the front façade will not read as an encroachment to the characteristic setback and for the reasons advocated by Mr Mead do not need to be rationalised or removed to achieve compatibility. Rather, they will articulate the façade and will provide opportunity for surveillance of the street, and amenity for the occupants.

57. I am satisfied that the design is an appropriate response to the opportunities and constrains of the site and the applicable planning objectives for the development of the site under the SEPP ARH. As such, I accept the proposed design is compatible with the character of the local area which is the consideration called up by: cl 30A.

A solid lapped and capped fence on the western boundary is appropriate

58. Mr Faridy proposes a 1.8m high lapped and capped fence along the western boundary of the building to provide a level of privacy to and from the ground floor units and the users of the park which include groups of young children. The applicant prefers a palisade fence and relies filtered views through landscaping to ensure mutual privacy.

59. I prefer the Council’s evidence on this issue. It reflects the existing boundary arrangement and there is no good reason to change it to accommodate this development. Therefore, I find that the western boundary fence should commence at the building alignment and extend the length of the building in a solid lapped and capped form. At the street frontage, it is appropriate that a palisade fence be erected.

SEPP 55

60. Clause 7 of SEPP 55 requires, prior to granting consent, a consideration as to whether the land is contaminated. The planners’ evidence is that given the historical land use of the site and surrounds, the site is deemed unlikely to be contaminated with no known land use listed in Table 1 of the Managing Land Contamination: Planning Guidelines – SEPP 55 – Remediation of Land prepared by the Department of Planning and Environment (1998). I accept that evidence and no further contamination assessment is required for the proposal.

BASIX SEPP

61. I am also satisfied that the revised BASIX Certificate filed with the amended plans satisfies the requirements of this SEPP (Exhibit B).

Conditions

62. The Council has proposed draft conditions of consent which reference the amended plans and address a number of the concerns raised by Mr Faridy’s evidence. Specifically, emergency signage to be erected on the gate along the eastern path proximate to Unit G01 and the requirement for low planting along the eastern side of the entry path to the main property entry. They also condition the premises to be operated in accordance with a Plan of Management (POM) to assist and protect the amenity of the residents. The site will house a live-in manager who will in line with the POM regulate the behaviour of residents. A dilapidation report for properties likely to be affected by the construction process will be conditioned on the approval as well as a bond to protect street infrastructure.

63. The applicant has provided a competing version of particular the conditions and requires the deletion of others. Having considered the conditions in dispute, I accept the Council’s version except for the condition relating to planting in the park which based on the information before me I consider to be beyond power.

Conclusion

64. For the reasons stated, I am satisfied that the development, as amended, is acceptable on its merits after the requisite assessment under s 4.15 of the EPA Act which includes a consideration of the exhibited draft SEPP ARH. In forming that view, I have had regard to the concerns and fears genuinely held by the objectors to the application. However, the weight of the evidence does not support a refusal.

65. As agreed by the parties, the hearing proceeded on the basis that the Council has agreed to the amendments being uploaded on the NSW planning portal and as required by cl 55(1) of the EPA Regulation.

66. The respondent, as the relevant consent authority, would lodge the amendment of the development application on the NSW planning portal. I am informed that this has now occurred on 17 September 2021.

64. As the amended plans are now formally filed with the Court, I make the following orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA/573/2020 for the demolition of existing structures and construction of a three-storey boarding house comprising 67 boarding rooms, a manager’s room, basement parking (24 car spaces, 2 car share spaces, 14 motorcycle spaces and 6 bicycle spaces), with access from Centre Lane, landscaping and associated works at 87-91 Middle Street, Kingsford, subject to conditions set out in Annexure A.

3. The exhibits are returned except for A, D, E, F and 2.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (468587, pdf)

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Amendments

20 October 2021 - Pursuant to UCPR r 36.17 and with the consent of all parties, Annexure A to the judgment of 1 October 2021 has been amended by deleting condition 2(d) and condition 97.

Decision last updated: 20 October 2021