Environa Studio Pty Ltd v Fairfield City Council

[2020] NSWLEC 1578

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environa Studio Pty Ltd v Fairfield City Council [2020] NSWLEC 1578

Hearing dates:

21, 22, 29 October 2020

Date of orders:

24 November 2020

Decision date:

29 October 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is allowed.

(2) Development consent is granted to development application DA 646.1/2018 for the demolition of an existing dwelling and ancillary structures, removal of certain vegetation, and the construction of a boarding house development comprising three two-storey buildings containing a total of 26 boarding rooms including 23 double and three single rooms, one manager’s room and three communal living rooms with associated facilities, 13 car parking spaces, five motorcycle spaces, six bicycle spaces, and ancillary fencing and stormwater works upon the conditions annexed and marked A.

(3) Exhibits other than exhibits H, R, S, T and 1 shall be returned.

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – issues resolved during hearing – resident issues – character, parking – solar access

Legislation Cited:

Environmental Planning and Assessment Act 1979

Fairfield Local Environmental Plan 2013

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Fairfield Development Control Plan 2013

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Environa Studio Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
J Smith (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/123179

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

INTRODUCTION

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application DA 646.1/2018 (DA) which seeks consent for the demolition of an existing dwelling and ancillary structures, removal of trees and other vegetation, and the construction of a boarding house development comprising three two‑storey buildings containing a total of 26 boarding rooms and ancillary facilities at Lot 11 Deposited Plan 1171432 known as 8 Ronald Street, Carramar (site).

2. The DA was amended a number of times during the course of its assessment and has not been determined by the Council. During the course of the hearing the Applicant proposed further amended plans to deal with the remaining issues between the parties. Mr McDonald, the Council’s planner, gave evidence in the hearing in relation to those proposed amended plans and as a consequence of that evidence, the matter was adjourned, the Applicant further amended the plans and now the Council no longer opposes the grant of development consent.

3. That said, I must however be satisfied that it is appropriate to grant development consent having regard to what hitherto were the issues between the parties, and I must also be satisfied that the jurisdictional preconditions to the grant of development consent are satisfied.

4. The hearing began with a site inspection in the presence of the parties representatives and planners. The occupant of 6 Ronald Street gave evidence at his home. Thereafter the hearing was conducted by MS Teams in accordance with the Court’s COVID-19 Pandemic Arrangements Policy July 2020.

SITE AND SURROUNDS

5. The site is located on the eastern side of Ronald Street about 250 metres south-west of Carramar Railway Station. It is an irregular shaped allotment having a frontage of 18.3 metres to Ronald Street and a depth of from 46 to 75 metres producing a total area of 1,790.43 square metres. Suffice it to say it is a very large block of land within a residential zone.

6. The topography maintains a downward slope from the rear end of the site to the street frontage by only about a metre so is generally flat. Present on the site is a single storey detached dwelling and three outbuildings. There is, it is important to note, a stormwater pipe of some 1.35 metres in diameter which runs through the site. That stormwater pipe is a significant constraint on the development of the site in that buildings in the ordinary course cannot be constructed above it, but rather it is inevitably the site of a driveway to the development which would occur on the site, whatever form that development may be.

7. On each side of 8 Ronald Street are single residential dwellings which are generally a feature of the local area. The site is located at the interface of zone R2 Low Density Residential because across the road on Ronald Street is zone R4 High Density Residential (pursuant to Fairfield Local Environmental Plan 2013) although it is largely not yet developed for the purposes of high-density residential living.

8. Generally, the surroundings to the site to the east are characterised by low density development, mostly detached dwellings, some with secondary dwellings, and older style affordable rental housing single storey villa developments. To the west is some more recent development, generally of two-storey dwellings, and as one moves towards the station there are increasing numbers of two-storey dwellings.

THE PROPOSAL

9. As I have indicated, the proposal has been amended a number of times, during the course of the assessment before lodgement of the appeal and in Court leave was granted by the registrar on 4 September 2020. The joint report of planners to which I will come in due course agreed that certain changes needed to be made and those changes were made during the course of the hearing.

10. The current proposal continues to provide for boarding house development in three buildings with a total of 26 rooms including a manager’s unit. There are 13 car parking spaces provided. The proposal involves the removal of some trees but the retention of others and I will refer to that in due course.

11. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The relevant provisions are:

29   Standards that cannot be used to refuse consent

…..

(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,

…

(e)  parking

if—

…..

(iia)  in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room

…..

(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.

…

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,

…

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.

12. The Fairfield Local Environmental Plan 2013 (FLEP 2013) applies to the site. The site is located within the zone R2 pursuant to the provisions of FLEP 2013. The proposal for a boarding house is permissible with development consent in the zone.

13. I should point out that there are provisions within FLEP 2013 relating to the maximum height of buildings (cl 4.3) and the maximum floor space ratio (cl 4.4) and how that floor space ratio is to be calculated (cl 4.5). The proposal complies with the controls for height and floor space ratio in FLEP 2013. Clause 6.1 Acid sulfate soils applies to the site because it is identified as being affected by Class 5 acid sulfate soils on the Acid Sulfate Soils Map. The site is also subject to cl 6.3 which relates to flood planning. It is not necessary to set out those provisions. There is material in relation to both those matters which I deal with later.

RESIDENT EVIDENCE

14. There were a number of objections to the proposal when it was notified in accordance with the Council’s notification policy. One resident, the next-door neighbour to the south, (6 Ronald Street), gave evidence on site.

15. There were two principal concerns expressed in the objections. First was increased traffic and increased use of the street for parking. That concern it was said was likely to be intensified by the potential for development in the adjacent R4 zone of high-density residential uses so that the pressure on the parking in the street would be unacceptable.

16. The proposal provides for 13 parking spaces and according to cl 29(2)(e) of the SEPP ARH I cannot refuse the application on the basis of car parking because parking is provided at the rate of 0.5 spaces per boarding room. Accordingly, even if there is merit in the objector’s concern, concern about the potential for parking on the street cannot be a basis upon which I can refuse the application. In addition there is no evidence to suggest that there is not capacity in the street network to cope with the additional traffic.

17. The principal concern of the neighbour to the south was the loss of solar access. That was also a contention raised by the Council and I will deal with that separately.

CONTENTIONS AND THEIR RESOLUTION

18. The Council filed an Amended Statement of Facts and Contentions in response to the Applicant’s amended plans in September 2020.

19. Town planners Ms A Sutherland, retained by the Applicant, and Mr S McDonald, retained by the Council, prepared a detailed and comprehensive joint report in relation to the amended contentions and provided a supplementary joint report dealing with the most recent amended plans. Their assistance has been valuable in both identifying the issues, the manner in which they can be resolved, and the fact of their resolution in their respective opinions. It is their evidence to which I refer in identifying the contentions which have been raised by the Council and which now have been resolved.

Contention 1 Exceedance of floor space ratio control in cl 4.4 FLEP 2013

20. The Applicant had asserted that there was compliance with the maximum floor space ratio in FLEP 2013 whereas Mr McDonald opined that the floor space ratio was exceeded. The issue related to whether or not certain corridors and access areas should be counted as floor space. By amendment to the plan, those corridors and access areas were no longer enclosed, and it was agreed by the experts that the areas no longer comprised floor space and the floor space ratio was no longer breached. I accept the evidence of the experts in that regard.

Contention 2 Character and overdevelopment

21. The elements of character fell into a number of categories which I will deal with separately.

Front setback

22. The front setback was unacceptable according to the Council and out of character because of the amount of built form and inadequate landscaping. The design changes and the landscaping have now provided more than ample landscaping in the front setback of the site and I agree with the experts’ conclusion that the presentation to the street and the treatment of the front setback as a consequence of those design changes is now acceptable. The landscaping of the front setback is compatible with the streetscape (cl 29(2)(b) of the SEPP ARH).

Overlooking

23. There were concerns about overlooking, particularly from the upper levels of boarding houses into neighbouring properties. Certain screens have been provided and that is an appropriate outcome which the experts have agreed upon and with which I agree to deal with potential overlooking and visual privacy.

Clause 30AA of current SEPP ARH

24. An element of character pressed by the Council was cl 30AA of the current SEPP ARH which was an amendment to the SEPP which by virtue of the savings provision in the SEPP does not apply to the present application. It is however a matter which can be taken into account notwithstanding it does not directly apply. Clause 30AA now provides:

A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.

25. That provision means that in a zone such as this there shall be no more than 12 boarding rooms in any boarding house. If that provision applied to this proposal then, on the assumption that it is one boarding house in three buildings, it would not comply and, subject to the operation of cl 4.6 of FLEP 2013 it would be prohibited.

26. The Applicant argued that on the proper construction of the SEPP ARH the proposal, for the purposes of cl 30AA of the SEPP, comprised three boarding houses not one and so there would be no non-compliance. I do not need to resolve that question of construction. It is now agreed by the experts that on the assumption that there is a breach of the 12 room limit in cl 30AA, that the measures taken in the recent design changes to the development mean that in any event the character test in cl 30A of the SEPP ARH is met and therefore the objective of cl 30AA is met.

27. The peculiar characteristics of the site, being a site which expands in the nature of a very large ice cream cone from the street to the rear, enables the construction of the boarding house development in three blocks including a manager’s apartment so that the issues such as the control of built form and the control of behaviour of the users of boarding houses is dealt with in an appropriate manner. So having taken into account cl 30AA as it presently exists, I accept that it is not a matter of determinative weight and that the objectives of that control are met by virtue of the more recent design changes.

Hard paving and Landscaping

28. What remained in issue between the experts in the first joint report was the extent of hard paving and inadequate landscaping at the rear of the site. As I have mentioned, because of the stormwater pipe running through the centre of the site, the driveway runs down the centre and has the characteristics of what can be called a gun-barrel driveway. Accordingly, as first proposed by the Applicant, a straight single concrete driveway in the order of 75 metres in length, was unacceptable to the Council. I agree that it was unacceptable.

29. However, in the evidence of Mr McDonald when looking for alternative ways to address that issue, he very fairly agreed with, or prompted, ameliorative methods such as using different materials at certain parts of the driveway so it was not all concrete, adding an additional substantial tree halfway down the driveway as part of the landscaping, and reconfiguring the parking and providing additional landscaping at the rear of the site, which would resolve both the specific issue about the presentation of the driveway and the inadequacy of the landscaping as significant elements of the character issue.

30. The changes mean that there is in the order of a 5.5 metre setback at the rear of the site which is fully landscaped. This provides landscaping equivalent to that provided had a single dwelling been built in that location. It is characteristic that rear setbacks are in the order of 5 to 6 metres and the provision of 5.5 metres here is considered by Mr McDonald appropriate and I agree with him.

31. The breakup of the materials on the driveway is important. A form of aggregate will provide some visual interest and break up the presentation of the driveway in an acceptable way. The provision of a canopy tree in the landscaping halfway down the driveway also provides visual interest and a visual breakup of the driveway. That is to say, it will not appear as a gun barrel. It will appear as a driveway which is firstly broken up by landscaping at the beginning, then in the middle and terminated by significant landscaping at the end, in varied materials. Because of the additional landscaping it probably is not even possible to read the whole of the driveway in one viewing location at all.

32. So for those reasons I accept Mr McDonald’s evidence and Ms Sutherland’s evidence, both that that is a significant improvement and that it is an acceptable outcome and meets the character test of not being out of character. Rather it reflects the character of the neighbourhood in that there is an appropriate driveway which is broken up visually and by its materials in the manner which has been provided. To quote from the supplementary joint report the joint conclusion of the experts the following terms:

“The amendments allow for additional deep soil landscaping and additional canopy trees to be provided on the site and will reduce the visual impact of the driveway to a level that is considered acceptable by SM. SM is of the opinion the increase in deep soil landscaping and provision of canopy trees will now result in a development that is compatible with the existing and anticipated further character of the local area.”

33. I agree with that conclusion.

Contention 3 Communal Open Space

34. There was a contention that the location and design of the outdoor communal space did not provide adequate amenity and was not accessible from the internal communal rooms. The amended plans have provided greater detail as to the accessibility of the communal open space, how it is to be used and how access is provided from the communal rooms onto that communal open space. I agree with the experts’ conclusion that that contention has been resolved.

Contention 4 Insufficient Car Parking

35. I have already mentioned that although that was a contention it is no longer a contention and I cannot refuse the application on the basis of insufficient car parking because the car parking has been provided at the number which is the minimum at which point it cannot be a reason for refusal.

Contention 5 Privacy and Acoustic Impacts

36. In the joint report the planners provided for privacy screens on certain level 1 and level 2 boarding room windows which face side boundaries and so with those privacy screens that issue was resolved.

Contention 6 Size of Boarding Rooms

37. This contention arose largely because of some difficulties in calculations. With the additional information provided and with a slight amendment to arrangements for one or more rooms the Council is now satisfied, as am I, that the boarding rooms comply with cl 29(2)(f) of the SEPP ARH so that the rooms are not less than 12 square metres in the case of a single room and 16 square metres in the case of double rooms and that issue was resolved.

Contention 7 Site Planning and Pedestrian Pathways

38. Contention 7 related to site planning and, in particular, pedestrian pathways. The plan has been amended to show how that is to operate and I agree that there are no onsite issues with the movement of pedestrians and motor vehicles having regard to the small number of movements anticipated and the way in which the plan has now identified the walking areas adjacent to the driveway.

Contention 8, Waste Management

39. Contention 8 related to waste management. That was a matter of detail and the provision of a waste area has now been attended to in the amended plans.

Contention 9 Overshadowing

40. Overshadowing was an issue which was unresolved after the first joint report because of the reduction in solar access to the property to the south of the subject site, number 6 Ronald Street. The evidence given on site by the occupant of number 6 concerned the loss of solar access to that dwelling. At the site inspection by the Court and the parties, it became apparent that there was a window to the east of the dwelling at number 6 which was hitherto unknown or unnoticed by the Applicant and the Council. That window was a window to what was described as a sunroom.

41. The Applicant provided updated solar access diagrams which included that window as an opening to number 6 Ronald Street and as a consequence the experts addressed that issue in the supplementary joint report. The experts note that the east-facing sunroom allows daylight not only into itself, but into the central living area that adjoins the kitchen and that the east-facing windows currently receive a minimum 3 hours solar access in midwinter and will continue to receive the 3 hours minimum solar access after this development is constructed.

42. Having regard to that additional information, the experts agree that the development complies with the control in Fairfield Development Control Plan 2013 such that there is a minimum of 3 hours solar access to the living area of number 6 Ronald Street and the Council no longer presses that contention. I agree with the analysis of the experts that there is three hours solar access available to 6 Ronald Street and that is not a reason for refusal.

43. I should add that there is also a generally westerly facing window to the lounge room at the front of number 6 Ronald Street which presently has a fixed awning above it. If there was a movable awning, then at some stage during the winter solstice, probably from about 1 pm, there would also be sun entering the front living room until 3pm and probably later. I should also add that Mr McDonald agreed that in the redevelopment of number 6 Ronald Street, which is likely to occur at some point, there will be no difficulty in constructing a new dwelling or other development on that site for residential purposes which will have sufficient solar access.

Contention 10 Inadequate Information

44. Contention 10 related to inadequate information. That information related to matters which have been addressed by the Applicant by providing greater detail in the landscaped areas, additional overshadowing information and additional information about the planting proposed.

Contention 11 Public Interest

45. Insofar as the public interest was concerned the contention noted that there have been submissions in opposition to the development but also, very properly, stated that the submissions from the public would be pressed by the Council only to the extent that they were in accord with the other contentions of the Council.

46. May I observe nevertheless that the matters raised by the public are mandatory relevant considerations and I have read the objections by the local objectors and listened to, as well as read, the submission in writing by a local resident and the evidence from the occupier of 6 Ronald Street. I have taken that into account. It largely reflected, perhaps with the exception of the traffic, the contentions which have hitherto been raised by the Council and which have been addressed by the experts in the joint report and the supplementary joint report which came about as a consequence of the amendments to the plans.

47. I should add that the public involvement in responding to the notification of the development application assists the Applicant, the Council and indeed the Court in focusing on the issues which are of concern, and ensuring that either if a development is not appropriate it is refused or if there are issues which need to be addressed, such as in this case, they are properly addressed and the development ameliorated, modified or otherwise altered in such a way that it becomes an acceptable form of development.

48. In terms then of the matters of merit raised by the Council initially and raised by residents, I am satisfied that they do not warrant refusal of the application but more than that, I accept the evidence of the experts having regard to the material before me that this is a matter appropriate for the granting of development consent. I nevertheless need to address any jurisdictional preconditions which were not issues between the parties because, absent satisfaction of any jurisdictional preconditions, I do not have the power to grant development consent.

49. The Applicant has drawn attention to the two provisions of FLEP 2013 to which I referred above. First, cl 6.1 relates to acid sulfate soils. Lodged with the development application was an Acid Sulfate Soils Assessment which concluded that having regard to that assessment, a management plan was not required in any event. Accordingly, I am satisfied as to cl 6.1 of FLEP 2013.    

50. Secondly, cl 6.3 of FLEP 2013 relating to flood planning applies to the site. I note that there are only minor earthworks associated with the construction of footings for the proposed buildings and the paved areas including the driveway. There was a Flood Risk Management Plan accompanying the development application which addresses the requirements of cll 6.3 and 6.4 of the FLEP 2013 relating to flood management and I am satisfied that the requirements are adequately addressed. Accordingly, it follows that the jurisdictional prerequisites of FLEP 2013 have been addressed to my satisfaction.

51. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) also applies to the site. I accept that given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated. Accordingly, no further information was required by the Council nor by me in order to be satisfied in relation to SEPP 55. There has been no evidence of any non-residential uses at all which might give rise to any concerns about the potential for contamination.

52. Clause 30A of SEPP ARH requires me to consider the compatibility of the proposal with the character of the local area. “The local area” is somewhat of an amorphous concept but the provision is intended to ensure that having regard to the general neighbourhood in which a proposal is made, it is compatible with the character of that neighbourhood. This neighbourhood is characterised by a mix of single storey and two-storey dwellings, some of age, some of lesser age, and across the road some higher density living.

53. The experts have differing views as to the extent of that area. However, it is not necessary to determine whether the narrower area opined by Mr McDonald, or the larger area opined by Ms Sutherland, is accurate. They share much of the same characteristics which I have identified, and which include an appropriate landscape setting both in the front and in the rear.    

54. Mr McDonald and Ms Sutherland were both satisfied that there is compatibility with the character of the local area having regard to the presentation to the street, the landscaped area, the separation of the buildings, the setbacks, the provision of landscaping in the rear, the amended driveway, the limitation to two-storey development and compliance with the height and floor space ratio controls in FLEP 2013. I am satisfied that the proposal is compatible with the character of the local area.

55. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the site and the development. A question has been raised as to whether an up-to-date BASIX certificate needs to be provided. The parties are presently unable to determine whether an up-to-date certificate is required and accordingly, I cannot grant consent in the absence of a BASIX certificate.

56. I am informed by the parties that there are no other jurisdictional preconditions to the grant of development consent. Having regard to the evidence before me, it is appropriate that development consent be granted after the BASIX issue is dealt with. The parties have agreed on conditions which are to be imposed.

57. I direct the parties within 14 days to either jointly inform the Court that no updated BASIX is required and the reason why, or alternatively the Applicant is to file an updated BASIX certificate.

ADDENDUM

58. On 3 November 2020 Certificate number 985607M_04 pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 was filed. That jurisdictional precondition has now been satisfied.

59. Accordingly, I make the following orders:

1. The appeal is allowed.

2. Development consent is granted to development application DA 646.1/2018 for the demolition of an existing dwelling and ancillary structures, removal of certain vegetation, and the construction of a boarding house development comprising three two-storey buildings containing a total of 26 boarding rooms including 23 double and three single rooms, one manager’s room and three communal living rooms with associated facilities, 13 car parking spaces, five motorcycle spaces, six bicycle spaces, and ancillary fencing and stormwater works upon the conditions annexed and marked A.

3. Exhibits other than exhibits H, R, S, T and 1 shall be returned.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (325134, pdf)

**********

Decision last updated: 24 November 2020