Fuller Street Pty Ltd v Blacktown City Council

[2023] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fuller Street Pty Ltd v Blacktown City Council [2023] NSWLEC 1023

Hearing dates:

8, 9, 18 August, Written Submissions 21, 30 September, 1 October 2022

Date of orders:

19 January 2023

Decision date:

19 January 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

In proceedings 2021/364495, the Court orders:

(1) The appeal is upheld.

(2) Development application DA-20-01659 for the construction of a 2-storey boarding house consisting of nine self-contained rooms, a self-contained managers room, on site parking, tree removal and landscaping at 73 Fuller Street, Mount Druitt is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits are returned with the exception of Exhibits 1, A and C.

In proceedings 2021/364488, the Court orders:

(1) The appeal is upheld.

(2) Development application DA-20-1655 for the construction of a 2-storey boarding house consisting of nine self-contained rooms, a self-contained managers room, on site parking, tree removal and landscaping at 71 Fuller Street, Mount Druitt is determined by the grant of consent subject to the conditions in Annexure B.

(3) Exhibits are returned with the exception of Exhibits R1, A1 and C1.

Catchwords:

DEVELOPMENT APPLICATIONS – two adjoining sites – a proposed boarding house on each site – do the proposed development exhibit design excellence – are the proposed developments compatible with the character of the locality – are the likely impacts of the proposed development on adjoining properties acceptable – is the amenity of the proposed boarding houses acceptable – appeals upheld.

Legislation Cited:

Blacktown Local Environmental Plan 2015 cll 4.3, 5.21, 7.7

Environmental Planning and Assessment Act 1979 ss 4.15, 8.9

Environmental Planning and Assessment Regulation 2000 cl 49

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 29, 30, 30A, 30AA, Div 3

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

State Environmental Planning Policy (Housing) 2021 Sch 7A

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy Resilience and Hazards 2021 s 4.6

Cases Cited:

Arxidia Pty Ltd v Randwick City Council; Arthur Wong Pty Ltd v Randwick City Council [2017] NSWLEC 1463

CK Design Pty Ltd v Penrith City Council [2022] NSWLEC 97

HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Texts Cited:

Apartment Design Guide 2015

Blacktown Development Control Plan 2015

Category:

Principal judgment

Parties:

Fuller Street Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
A Hemmings (Respondent)

Solicitors:
Conomos Legal (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/364495
2021/364488

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant, Fuller Street Pty Ltd is the owner of adjoining sites at 71 and 73 Fuller Street, Mount Druitt (Lot 20 in Deposited Plan 2042 and Lot 19 in Deposited Plan 2042 respectively) and proposes to redevelop the sites by the construction of a two-storey boarding house on each site. The specific details of the development for which consent is sought in the development applications is extracted below. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) the refusal of their development applications by Blacktown City Council (the Respondent).

1. Matter number: 2021/364488. Development Application number DA-20-01655 (71 Fuller Street) seeks consent for:

• The construction of a 2-storey boarding house consisting of 9 self-contained boarding rooms for a total of 11 lodgers, a self-contained manager’s room, onsite parking, tree removal, landscaping and associated civil works.

• The boarding house will comprise: 7 single rooms and 2 double rooms accommodating 11 lodgers plus 1 manager’s residence. Each boarding room would be a self-contained studio with a kitchen and bathroom. As well as a communal living area, laundry, and a waste room on the ground floor, 56 car spaces (including 1 disabled space), 2 motorcycle spaces and 2 bicycle spaces and a rear carport structure.

2. Matter number: 2021/364495. Development Application number DA-20-01659 (73 Fuller Street) seeks consent for:

• The construction of a 2-storey boarding house consisting of 9 self- contained boarding rooms for a total of 11 lodgers, a self-contained manager’s room, onsite parking, tree removal, landscaping and associated civil works.

• The boarding house will comprise: 7 single rooms and 2 double rooms accommodating 11 lodgers plus 1 manager’s residence. Each boarding room would be a self-contained studio with a kitchen and bathroom. As well as a communal living area, laundry and a waste room on the ground floor, 5 car spaces (including 1 disabled space), 2 motorcycle spaces and 2 bicycle spaces and a rear carport structure.

2. The two matters were listed for a concurrent conciliation conference on 29 April 2022 pursuant to s 34 of the Land and Environment Court Act1979 (LEC Act). The conciliation conference was terminated on the same day. Subsequently the two matters were listed for hearing. A reference in this judgment to ‘the developments’ is a reference to the proposed development for which consent is sought under DA-20-01655 and DA-20-01659 as detailed at [1].

3. On 8 June 2022 the Court granted leave, with the consent of the Respondent, for the amendment of both development applications with the following amendments:

1. A correction to the hardstand shown for lots 63, 79 and 84 in the Contextual Analysis Plan.

2. Amendments to the architectural plans to represent the landscape elements included in the landscape architects drawing set.

3. Amendments to the first-floor windows on 71 Fuller Street (DA/20/01655) to ensure that they are not aligned with the windows proposed on 73 Fuller Street (DA/20/01659).

4. Inclusion of material detail for proposed privacy screens in both developments.

5. The inclusion of updated BASIX certificates and an addendum flood study.

4. The parties agree, and I concur, that the amendments in the proposed development applications are minor.

5. Notwithstanding the amendments to the development applications, the Respondent maintains that both development applications warrant refusal on the following grounds:

1. That the developments fail to exhibit design excellence, a mandatory precondition to consent contained at cl 7.7(3) of Blacktown Local Environmental Plan 2015 (LEP 2015). This provision applies to both parcels of land as they are identified on the Design Excellence Map pursuant to LEP 2015.

2. That the developments are incompatible with the character of the local area, a mandatory consideration for the consent authority pursuant to cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

3. That the developments will have unacceptable impacts on the amenity of future residents of the proposed boarding houses.

4. That the developments will have unacceptable impacts on the amenity of neighbouring properties.

5. That the approval of the developments would be against the public interest.

Subject Sites

6. Matter number 2021/364488 is for the development of 71 Fuller Street, Mount Druitt (Lot 20 DP 2042) which is currently occupied by a single storey detached dwelling with vehicular access via a driveway from Fuller Street. The site includes two street trees and seven trees within the property. The site is regular in shape and has an overall size of 1012m².

7. Matter number: 2021/364495 is for the development of 73 Fuller Street, Mount Druitt (Lot 20 DP 2042) which is currently occupied by a single storey detached dwelling also with vehicular access via a driveway from Fuller Street. Vegetation at the site includes four (4) site trees ranging from ranging in size from 3-8m in height within the rear yard and a 9m height palm within the front setback. The Site is a regular shape with an area of approximately 1,012m².

8. The above is a compilation image of the proposed ground floor plans of the two development proposals across both development applications.

The Locality

9. The locality is predominately low-density residential development comprising of a wide range of single storey residential dwellings ranging in form from original small weatherboard or fibro dwellings to larger brick and tile homes. The subdivision pattern comprises large parcels of land (around 1000m²) with a north-south orientation.

10. Approximately 80m to the east of the subject sites is Rupertswood Park, a large area of local open space.

11. As a separate matter, the extent of the visual catchment of the subject sites at 71 and 73 Fuller Street was the subject of disagreement between the urban design experts. Applying a commonsense approach, I am satisfied that the visual catchment that is relevant to the question of the compatibility of the developments with the character of the locality, is the extent of the surrounding area from which the subject sites (or development on them) would be seen. Applying that principle, the extent of visual catchment defined by Ms Castellanos, urban design expert for the Respondent, in the joint report is preferred. (Exhibit R6, Exhibit 6)

12. Mr Dickson, urban design expert for the Applicant, describes the existing character within proximity of the subject sites as having the following characteristics:

• a limited range of building heights from single to two storeys.

• predominately single detached dwellings on large allotments.

• consistent front setback and building alignment along Fuller Street.

• side setbacks vary from 900mm to 3 or 3.5m where there is a driveway on one side of the allotment.

• the limited range of external building materials used, namely fibre cement, face brick and render.

• a mix of pitched and flat roofs. Older stock of a darker roof colour, newer stock generally lighter.

• planar facades with little articulation.

13. Mr Dickson further notes that the existing character of the local area is undergoing transition from the existing stock of single storey detached dwellings. These more recent developments are located in Tidswell Street, a street to the north of Fuller Street. From observation during the site view these properties are not visible from the subject sites.

14. Ms Castellanos has prepared a number of visual analysis plans as part of the joint report which examine the characteristics of the existing built form. I have considered these, along with Mr Dickson’s description of the existing character, in undertaking an assessment of the compatibility of the proposed development with the character of the locality.

Public Submissions

71 Fuller Street

15. The development application was notified from the 3-17 December 2020, which was extended by the Respondent until 29 January 2021. The Respondent received twenty submissions, 64 proforma letters and a petition with 244 signatures all in objection to the application. The key issues raised in the submissions were:

• inconsistency with local character

• suitability of the site for the proposed development

• character of the likely occupants of the development

• the precedence that would be created by the approval of boarding houses on each of adjoining lots

• traffic and carparking

• building design and privacy impacts on adjoining properties

• noise pollution from the proposed development

• insufficiency of the proposed Plan of Management (POM)

• flooding and drainage concerns

• lighting impacts for adjoining properties (light spill)

• loss of trees

• reduction in sunlight and the impact of overshadowing.

• (Exhibit 1)

73 Fuller Street

16. The development application was notified from the 3-17 December 2020, which was extended by the Respondent until 29 January 2021. The Respondent received twenty submissions, 64 proforma letters and a petition with 244 signatures all in objection to the application. The key issues raised in the submissions mirrored those summarised at [15]

17. At the commencement of the hearing a member of the public addressed the Court detailing their concerns with the development application. Those submissions reiterated the preceding concerns.

18. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.

Expert Evidence

19. The parties engaged the same experts in each of the proceedings. Expert reports were prepared by the experts independently for each matter.

20. The Court was assisted by flooding, town planning and urban design experts, as follows:

Discipline	Respondent	Applicant
Urban Design	Karla Castellanos	Rohan Dickson
Planning	Julie Horder	Eltin Miletic
Flooding and Stormwater engineering	Ashley Bond	Samer El Haddad

21. The planning and urban design experts conferenced collectively and produced a joint report, Exhibit 5 and R5 in the proceedings. These experts also gave oral evidence and were subjected to cross examination.

22. The flooding and stormwater engineers conferenced and prepared a joint expert report that was tendered as Exhibit 3 and R3. They further prepared a supplementary report that was tendered as Exhibit 4 and R4. On the basis of their agreement, the experts were excused from oral evidence.

Preconditions to the grant of consent

23. Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows, commencing with design excellence which is an issue contended by the Respondent in the proceedings.

24. The development applications were lodged with the consent of the respective owners of the land as required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

25. State Environmental Planning Policy Resilience and Hazards 2021 (SEPP RH) came into force on 1 March 2022 and transfers the provisions of State Environmental Planning Policy No 55 – Remediation of Land to the new instrument. Section 4.6 of SEPP RH nominates matters in relation to remediation of land that must be considered before the development application is determined. In determining the development, I have given consideration to whether the subject site is contaminated as required by s 4.6 of SEPP RH. The statement of environmental effects notes that the sites have been utilised historically for residential use and reiterates that no change of use is sought. Further, the development applications are accompanied by a Preliminary Site Assessment which concludes that the site is suitable for the proposed use. I have considered whether the land is contaminated in accordance with s 4.6 SEPP RH, and I accept that the site will be suitable for the proposed development.

26. Both development applications seek consent for development for the purpose of a boarding house. A number of matters are relevant to the permissibility of the proposed developments. Firstly, in both cases, the land the subject of the development application, is zoned R2 Low Density Residential under LEP 2015. At the time of the lodgement of the applications, boarding houses were permitted with consent in the zone. The parties agree that a recent amendment to LEP 2015, giving effect to the Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021, prohibits boarding houses in the R2 Low Density Residential land. However they further agree, and I concur, this amendment does not apply to the two development applications given the relevant savings and transitional provisions of cl 8(1) of Standard Instrument (Local Environmental Plans) Order 2006. I am satisfied that development for the purpose of boarding houses remains permissible under LEP 2015 for these two development applications. Secondly, development for the purpose of boarding houses is permitted under Division 3 of SEPP ARH. This instrument contains a number of development standards which are analysed in the following paragraph. Finally, the parties agree, and I accept that State Environmental Planning Policy (Housing) 2021 does not apply to the two development applications given the savings provisions at Sch 7A of the instrument: CK Design Pty Ltd v Penrith City Council [2022] NSWLEC 97 at [51].

27. Division 3: Boarding Houses, of SEPP ARH applies to land zoned R2 Low Density Residential. At cl 30 of SEPP ARH are a number of standards which must be satisfied in order for a consent authority to grant consent. I am satisfied those standards are met as follows:

• a communal living room is provided in each of the developments.

• the size of the proposed boarding rooms in each of the developments does not exceed the 25m² maximum.

• conditions of consent for both development applications require each boarding room to only be occupied by two adults.

• a manager’s room, adequate kitchen, and laundry facilities as well as compliant motorbike parking are incorporated in each of the developments.

28. Further, the development applications are compliant with the development standard at cl 30AA of SEPP ARH which limits boarding houses in the R2 Low Density Residential zone to 12 rooms.

29. The consideration of compatibility with local character mandated by cl 30A of SEPP ARH was the subject of evidence and submissions and is considered at later in the judgment.

30. Pursuant to cl 4.3 of LEP 2015 the subject sites have a maximum height limit of 9m. The development applications comply with this standard.

31. The subject sites are within the flood planning area and therefore, cl 5.21 of LEP 2015 applies. Pursuant to sub cl (2) consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development meets the following:

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

32. Pursuant to sub cl (3) of cl 5.21, In deciding to grant consent the consent authority must consider the following factors:

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

33. The development applications are accompanied by flooding reports which were the subject of joint conferencing and evidence from the flood engineers. On the basis of the flood reports, the agreement of the experts in their joint reports (Exhibit 3, R3, 4, R4, 10 and R10) and consideration of the matters at cl 5.21(3), I find that I can be satisfied of the required matters at sub cl (2) of cl 5.21 in LEP 2015.

33. The remaining pre-conditions, namely whether the development applications exhibit design excellence (cl 7.7 of LEP 2015); and the requirement for the consent authority to consider whether the design of the development is compatible with the character of the local area (cl 30A of SEPP ARH) are considered in the remainder of the judgment.

Does the proposed development exhibit design excellence?

35. Clause 7.7 Design Excellence of LEP 2015 applies as both sites are identified on the Design Excellence Map: cl 7.7(2) of LEP 2015.

36. Clause 7.7 of LEP 2015 sets two jurisdictional preconditions, one in subclause (3) and the other in subclause (4).

37. Clause 7.7(3) provides:

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

38. Clause 7.7(4) specifies matters that the consent authority must consider in deciding whether the proposed development exhibits design excellence. They are:

(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.

39. The Respondent’s contentions argue that the proposed development on 71 Fuller Street is inconsistent with the achievement of design excellence having regard to the matters listed at cl 7.7(4)(a) and (b), and the following parts of sub cl (f): (iv), (v), (vii), (ix) and (x) as follows:

(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,

…

(f) how the development addresses the following matters—

…

(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,

…

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

…

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

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

40. The Respondent’s contentions argue that the proposed development on 73 Fuller Street is inconsistent with the achievement of design excellence having regard to the same listed matters, namely cl 7.7(4)(a) and (b), and the following parts of sub cl (f): (iv), (v), (vii), (ix) and (x).

41. In determining the development application, the consent authority is required to give consideration to each issue at sub cl (4) in deciding whether a development exhibits design excellence: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 at [70]. The matters for consideration at cl. 7.7(4) of LEP 2015 are cumulative matters which, when considered together, determine whether the proposed development, as a whole, exhibits design excellence.

71 Fuller Street: Expert evidence

Is a high standard of architectural design, materials and detailing appropriate to the building type and location achieved?

42. The issue at cl 7.7(4)(a) of LEP 2015 requires consideration of three components: firstly, the architectural design, secondly the materials proposed for the development and finally the detailing proposed. That consideration needs to be made in the context of the building type (a boarding house) and its location.

43. Mr Dickson asserts that the proposed development application satisfies sub cl (a) and (b) of cl 7.7(4) of LEP 2015 for the following reasons:

• Through the provision of a 1.5m setback to the driveway on the western side with the closest part of the building at the street frontage being 3.1m from the eastern boundary. (I note this is specifically a reference to the built form on 71 Fuller Street but as the architectural design is a mirror reverse on 73 Fuller Street it is applicable to that development except in reverse).

• That the façade design of the building represents the logical and sequential layout of the floor plans and comprises three key elements: the entry courtyard, the communal room, a rear element oriented at 90 degrees which contains the boarding rooms and a large open space at the rear of the site. Consequently, the façade has been designed to be composed of single and two storey building elements with pitched roofs. This approach responds to the building design and the character elements of the locality.

• The choice of open corridor or verandas to the boarding rooms articulate the eastern façade. (Again, a reference specifically to 71 Fuller Street, but applicable to the western façade of 73 Fuller Street).

• That a good level of internal amenity is provided to each of the boarding rooms as each room achieves cross ventilation and access to daylight from an operable window.

• (Exhibit 5)

44. Ms Castellanos argues that in totality the proposed development does not achieve design excellence. Relevant to the matters at cl 7.7(4)(a) of LEP 2015 her evidence can be summarised as:

• The proposed building typology is dissimilar to the single residential character of the locality and its traditional form, siting, and circulation patterns.

• The open corridors as a circulation spine, open carparks and common recreational areas facing the street are not archetypal in the area and can lead to amenity impacts that would not be expected in a low-density residential zone. The proposed longitudinal building sitting deep into the site with a large open carpark side by side is a typology not seen anywhere in this block or street.

• The choice to put the carpark adjacent to the boarding house has forced the building into a longitudinal arrangement that covers more of the land and each unit to the carpark. Ms Castellanos argues that such a site design is reminiscent of the typology of motel accommodation.

• The location of the proposed parking will result in unacceptable amenity impacts for residents arising from light spill, noise of car movements, noise and exhaust fumes. These impacts are unacceptable in a boarding house use.

• The elevations are a composite of disparate elements, treatments, and materials that when put together lack a cohesive concept or style.

• That the standard and quality of materials proposed is basic and the elevations are a composite of disparate elements with an unbalanced architectural composition.

• The proposed landscaping strategy is compromised by the extent and prominence of the carparking and driveway.

(Exhibit 4)

Will the form and external appearance of the development improve the quality and amenity of the public domain?

45. This issue was addressed by the urban design experts collectively with sub cl (a) along with the following comments.

46. Mr Dickson asserts that the form and external appearance of the proposed development will improve the quality and amenity of the public domain because it is compatible with the existing and desired future character of the local area. In making his assessment Mr Dickson applies the planning principle detailed in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture) at [22]-[31], namely:

“Planning principle: compatibility in the urban environment

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

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

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

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

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

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

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

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

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

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

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

31 It should be remembered that most people are not trained planners or urban designers and experience the urban environment without applying the kind of analysis described above. As people move through the city, they respond intuitively to what they see around them. A photomontage of a proposed development in its context provides the opportunity to test the above analysis by viewing the proposal in the same way that a member of the public would.”

47. Mr Dickson makes the following response to the first question detailed at [24] of Project Venture:

• The proposal is consistent with the building height anticipated by the planning controls.

• The front and side setbacks comply with the development controls in the Blacktown Development Control Plan (DCP 2015) and are consistent with the existing and desired character. The rear setback exceeds the control in DCP 2015 and responds to the flooding constraint on the site.

• Overshadowing is acceptable as demonstrated in the architectural plans. That the proposed development will have a reduced impact on adjoining properties when compared with a complying development such as a dual occupancy as a result of the footprint of the development and location of the built form on the site.

• That the architectural drawings provide sufficient contextual information to be satisfied that visual privacy impacts or overlooking to adjoining properties will be acceptable.

• That the proposed building height is compliant and will not result in any adverse visual impacts or be out of character with the existing context of the neighbourhood.

(Exhibit 5)

48. Mr Dickson concludes that the proposal’s physical impacts on surrounding development are acceptable.

49. In response to the second question in Project Venture, Mr Dickson provides the following reasoning in support of his conclusion that the proposed development is compatible with the existing and desired future character.

• The design of the proposals has been informed by detailed site analysis and is responsive to the overland flow path constraint located to the rear of the sites.

• Each site from the proposal comprises two pavilion like forms and a pergola structure which encloses the surface car park on three sides.

• The proposed building length is comparable to that which exists in the locality, and the desired future character of large residential dwellings probable as renewal occurs. Further, the façade width in the street elevation is similar to other buildings along Fuller Street.

• A pavilion style arrangement of built forms on the site is responsive to the humid subtropical climate of the locality.

• The design of the surface carpark will create a space within each of the boarding house developments for a range of activities in addition to parking. Further, the scale of the car park is reduced by the incorporation of a pergola.

• That for each site the following setbacks apply, as illustrated in the extracted site plans at [8]:

• -1.5 m side boundary setbacks to the common boundary between 71 and 73 Fuller Street.

• - 0.6m setback to the access driveway and a 3.7m setback to the proposed building adjacent the existing adjoining residential dwellings.

• - A 12m setback between the north-south pavilions on each site and the boundary of the adjoining residential lots.

• That the preceding setbacks and separation distances are acceptable and compare well to the standards detailed in Part 2F of the Apartment Design Guide 2015 (ADG).

50. In the joint report I note that the planners detail the following statements of agreement:

“131. The planners agree that the proposal is consistent with the predominately existing landscape to hardstand ratios of adjoining and nearby developments comprising long hardstand driveways and well set back hardstand parking areas being both open and covered at 63, 67, 69, 75, 58, 60, 62, 66, 76, 78, and 80 Fuller Street.

132. The planners agree that each application has been designed as a standalone development to be assessed separately. Individual vehicular entries for separate development proposals as proposed for 71 and 73 Fuller Street are appropriate and consistent with the predominant existing built form in the locality and result in a better outcome than the potential for a two lot subdivision or side by side dual occupancies on each site (totalling 4 separate driveways).

133. The planners agree that the discussion in relation to Contention 2 [Design Quality] and Design Excellence has also covered the particulars in Contention 3 [Response to Blacktown DCP] and that the proposal is satisfactory with regard to streetscape appearance, building height, setbacks, landscaping, driveway design, parking, private open space, communal open space, solar access, room sizes, visual and acoustic privacy, and overshadowing.”

(Exhibit 5)

51. Further, in their joint report the planning experts acknowledge that the retention of the existing trees in the front setback of both sites is a positive aspect of the developments, and they conclude that ‘the form and external appearance of the development will improve the quality and amenity of the public domain’. (Exhibit 5).

52. Finally, the planning experts note that the zoning and the site constraints (principally the flooding affectation to the rear of the sites) are characteristics shared with the adjoining properties on the southern side of Fuller Street. As such they conclude that it is likely that those properties may be redeveloped as:

“two storey dual-occupancy housing (detached or attached) constructed side by side facing the street with separate vehicular access to each dwelling and longitudinal building layout.

..

Due to the overland flow affectation at the rear of the site, development would be constrained to a similar footprint to that proposed.”

(Exhibit 5)

53. Applying the principle in Project Venture Ms Castellanos concludes that the development is not compatible with the existing or desired future character of the locality. Her reasoning can be summarised as follows:

• The design of the development is based on an archetype (motel) that is not residential in character.

• The externalisation of circulation in the design is in contrast to low density residential development where all habitable areas are generally protected from the elements and circulation for the most part is done internally.

• The carpark displaces valuable landscape areas.

• The open carpark creates unacceptable amenity impacts to future residents and adjoining neighbours. Impacts which are not expected in a low-density residential area.

• The carparking is of a form not found elsewhere in the locality.

• The proposed building length exceeds the existing average rear building line by some 12.7 metres.

• When considered in conjunction with the proposal at 73 Fuller Street, the longitudinal extent to the building is mirrored along both sides of the fence. This mirrored replication is uncharacteristic and adds to the poor contextual fit of the proposed development.

• An assessment of future character should give weight to the fact that the recent changes to planning instruments make boarding houses either prohibited or required to be operated by registered housing providers if State Environmental Planning Policy (Housing) 2021 is relied on. This reduces the likelihood of boarding houses forming part of the future character of the locality.

54. Further, Ms Castellanos disagrees with Mr Dickson’s conclusions in relation to the principle in Project Venture. She argues that firstly, due to the potential deleterious impacts to the neighbours, the proposal is not “capable of existing together in harmony”. Secondly, that the proposal varies from the surrounding character in its departure from the predominant building alignment, the extent that hard surfaces extend beyond average rear alignment, in the typology of the built form, in the non-residential circulation pattern and the side-by-side nature of the open carpark; attributes which mean the development is not compatible with the character of the locality. Further, Ms Castellanos argues that the proposal pushes many built form relationships outside the characteristics of the surrounding low-density residential dwellings by being beyond the predominant building alignment, beyond the rear average building alignment, having a longer side elevations than any other building in the precinct, a different circulation pattern and an atypical car parking arrangement.

54. In addition to the previous evidence in regard to character, Ms Castellanos nominates the location of the communal open space as detrimentally impacting the external appearance of the development in the public domain. Further she argues that the location of communal open spaces facing the street beyond the predominant building alignment is not a common occurrence or characteristic in this neighbourhood or precinct and will impact on the neighbour at 69 Fuller Street.

Does the development detrimentally impact on view corridors?

56. In the joint report the town planning experts agree that the development may have some impact on existing view corridors along Fuller Street, but that such an impact is not detrimental. (Exhibit 5)

Whether the development detrimentally impacts on any land protected by solar access controls established in the Blacktown Development Control Plan

57. The planners agree that the proposal complies with the solar access requirements of SEPP ARH, which only requires solar access to the communal living room, not to individual boarding rooms.

58. Blacktown Development Control Plan 2015 (DCP 2015) does not incorporate controls in relation to solar access for boarding house developments. However, DCP 2015 does require multi dwelling housing to be designed to ensure that adjoining sites receive a minimum of four hours of sunlight between 9am and 3pm on June 21.

59. Applying this as guidance, in relation to 71 Fuller Street, the first relevant adjoining site is 69 Fuller Street. By reference to the architectural plans the shadow diagrams demonstrate that 69 Fuller Street will continue to receive a minimum of four hours of sunlight between 9am and 3pm on June 21 after the proposed development is constructed.

60. In contrast Ms Castellanos argues that the development proposed at 73 Fuller Street will impact the ground floor boarding rooms proposed at 71 Fuller Street in the afternoon from approximately 1pm in mid-winter. She notes that prior to 1pm, these windows along the western elevation would be self-overshadowed except during a brief moment between 11 and 12 noon.

61. Alternately, in the morning in midwinter the proposed development at 71 Fuller Street will overshadow the proposed boarding rooms on the ground floor at 73 Fuller Street at 9am. Ms Castellanos notes that at 11am their solar access is limited by the narrowness of the proposed windows, and the windows are in self-shadow for the rest of the day. It is her opinion that these impacts arise due to the proximity of the built form on 71 Fuller Street to the common boundary.

The requirements of DCP 2015.

62. In the joint report the planning experts agree that there are no planning controls for boarding houses. Further, they agree that the proposed development complies with the development standards in SEPP ARH.

How the development addresses the matters at cl 7.7(4) (f) of LEP 2015

63. The matters listed at sub cl (4)(f) of cl 7.7 are extracted at [38].

Site Suitability

64. Ms Horder argues that the site is not suitable for the proposed boarding house use despite its proximity to public transport and the Mount Druitt town centre use as it is a prohibited form of development. Ms Horder acknowledges that the development retains permissibility given the operation of SEPP ARH but argues: ‘when weight is given to SEPP (Housing) 2021 as a draft instrument that is imminent and certain (but not determinative), the land could not be deemed to be suitable for the proposed development given boarding houses would be prohibited development.’ (Exhibit 5)

65. In contrast Mr Miletic argues that the site is suitable for the proposed development on three grounds. Firstly, the built form can be satisfactorily accommodated within the permitted building envelope and appropriately responds to the opportunities and constraints of the site. Secondly, the proposed development complies with the relevant planning controls for building height, parking, solar access, communal open space, private open space and room sizes. No adverse impacts arise in terms of streetscape, trees, traffic, amenity, flooding, and contamination, and finally that the proposal is permitted with consent in the R2 Low Density Residential zone as assessed under the provisions of the repealed SEPP ARH.

Existing and proposed uses and mix

66. Ms Horder argues that the proposed boarding house development is not able to address the existing or future proposed uses on two grounds. Firstly, there are currently no existing or approved boarding houses along Fuller Street and secondly, due to the legislation changes boarding houses will not be a use which is permitted in the R2 Low Density Residential zone.

67. In contrast Mr Miletic argues that the proposed development is a residential use proposed in the R2 Low Density Residential zone, a zoning which will remain. He argues that given the residential nature of the existing and future uses in the locality there is no land use mix issue.

Heritage

68. The matter at sub cl (iii) in relation to heritage issues and streetscape constraints (for example narrow frontage width) does not arise in the circumstances of this development.

Relationship

69. The expert’s evidence and contrasting views on sub cl (iv) and (v), namely, 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; and secondly on the proposed bulk, massing and modulation of buildings are discussed in the preceding. In addition to that evidence, the Respondent further contends that the proposed development generate three unreasonable amenity impacts, those being firstly overlooking of adjoining properties, secondly noise and thirdly internal amenity impacts for future boarding house residents (including poor ventilation and outlook). The Respondents concerns can be summarised as follows:

• Poor outlook

• Unacceptable relationship of the boarding rooms to the carpark which is not adequately ameliorated by landscaping and results in a poor outlook from the boarding rooms.

• That as a result of the site design, and the potential to overlook adjoining properties from the elevated balcony, the Applicant has been required to amend the windows and privacy screen design to address overlooking. Those amendments result in the future residents having little or no outlook from their boarding rooms or balcony.

• Poor communal open space

• That the location of the communal open space in the front setback, and separated into two areas, its partial usage as a pedestrian entry and enclosure by a likely 1.8m fence result in it being of poor amenity and with little outlook.

• Lack of cross ventilation/ acoustic amenity.

• That the lack of air-conditioning combined with the location of the circulation corridors adjacent to the boarding rooms results in poor internal amenity due to a reliance by the Applicant on the windows and doors being closed to achieve acoustic compliance.

• Further, the Respondent raises concern about the noise impacts arising from the car park and the potential for the noise of vehicle movements, arrivals and departures impacting on the amenity of the ground floor boarding rooms.

• Overlooking

• That there are overlooking impacts from the proposed development at 71 Fuller Street (DA /20/1655) to 69 Fuller Street and from the redevelopment of 73 Fuller Street (DA/20/1659) to the existing dwelling 75 Fuller Street. Those impacts arise from the first-floor walkways and from the first-floor stair landings in the respective developments. Ms Castellanos specifically raises concerns in her evidence of the potential impacts to the neighbour at 75 Fuller Street. In particular, overlooking from the first-floor walkway and the stair landing. She notes that the stair landing is some 7.2m from the common boundary and within 10 m of the neighbour’s windows, less than the 12m separation distance in the ADG.

Street frontage heights.

70. In regard to 7.7(4)(f)(vi) street frontage heights, the planners agree the proposed street frontage height is appropriate and within the applicable development controls.

Environmental impacts and Ecologically Sustainable Development

71. In relation to sub cl (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, and sub cl (viii) the achievement of the principles of ecologically sustainable development, the planning experts note their agreement that the proposed developments comply with the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Further, they agree that the developments do not result in unacceptable overshadowing impacts and propose to use non reflective materials and colours, and will not adversely impact on wind speeds. Finally, they agree that the developments achieve the principles of ecologically sustainable development. (Exhibit 4)

72. In contrast Ms Castellanos argues that the proposed developments are not exemplary of environmentally sustainable design as the open carpark and extent of hard surfaces do not contribute to water filtration or the reduction of greenhouse emissions. Further, she argues that the requirement for closed windows to achieve acoustic amenity or privacy sacrifices appropriate cross ventilation, a compromise which is in her view inappropriate without the inclusion of mechanical ventilation or air-conditioning in the proposed development.

73. In relation to the solar amenity of the Manager’s private open space Ms Castellanos argues that it will achieve a bare hour in mid-winter, with no direct solar access to the Manager’s room itself.

74. In contrast Mr Dickson argues satisfactory solar access is provided to the communal room as required by SEPP ARH and that solar access to the managers unit is not required. He concludes that the managers unit has access to their own private outdoor space and can make use of the communal room and other outdoor spaces.

Access, circulation, and the public domain

75. In relation to sub cl (ix) pedestrian, cycle, vehicular and service access and circulation requirements, and sub cl (x) the impact on, and any proposed improvements to, the public domain, as noted at [51], the planning experts agree that the developments will improve the quality and amenity of the public domain. Further, following a review of the traffic and access statements which were submitted by the Applicant, the planning experts agree that the proposed developments comply with the relevant access and circulation requirements.

76. Mr Dickson’s evidence is that the access driveway and circulation on the subject sites is of an appropriate scale for the residential environment of the locality.

77. Ms Castellano’s evidence, as summarised at [44], raises concern with the site design’s choice of the vehicular access and parking location within the site, and the attendant amenity impacts that she argues arise from these planning and design decisions. Further, she argues that the provision of disabled access is inappropriate stating:

“The more problematic issue, in my opinion, is the circulation path for differently abled individuals who will be forced to travel next to the bin room, enter the courtyard, traverse the two doors of the communal room and traverse a third door to get inside the only accessible unit. This path travels against the path of incoming vehicles over the driveway without any protection from inclement weather against the potential opening of the gate. Traveling through two outdoor areas to an indoor space to an outdoor corridor again before being able to enter the accessible unit is, in my opinion, not equitable with the potential path of travel of abled residents. It is my understanding that a path of travel from the disable parking spot directly into the unit has been eliminated with the introduction of steps added to the ground level to further separate it from the visual impacts of the carpark.”

(Exhibit 4)

73 Fuller Street: Expert Evidence

78. The matters for consideration, and the required state of satisfaction required of the consent authority in relation to cl 7.7: Design Excellence in LEP 2015 is a prerequisite to be separately met for the proposed development at 73 Fuller Street.

79. However, in their joint report for this development the planning and urban design experts approached their evidence by repeating their evidence (with amendment to address and orientation of the building works as relevant) and providing supplementary evidence where matters were specifically relevant to the proposed development at 73 Fuller Street. As such, the evidence summarised in the proceeding is relevant to the determination of design excellence for this development application, but for the sake of brevity not repeated in this judgement. For clarity, I have considered the expert evidence summarised in the preceding in my consideration of the matters at sub cl (4) of cl 7.7 and my determination of whether the proposed development of 73 Fuller Street exhibits design excellence and determining if the precondition is satisfied.

80. For the proposed redevelopment of 73 Fuller Street, the relevant adjoining site is 71 Fuller Street. The urban design experts disagree whether the overshadowing generated by the proposed development to 71 Fuller Street is acceptable.

81. In his assessment of the first question in Project Venture Mr Dickson argues that the overshadowing to 71 Fuller Street is acceptable on the following grounds:

• The proposal is consistent with the anticipated building height.

• The views from sun diagrams included in the architectural plans compares a complying development such as dual occupancy with the proposed development. That comparison illustrates that the solar impact of the proposed development is significantly better than an indicative dual occupancy development due to the reduced site coverage, narrow building form, and site planning of the proposed development.

82. I have summarised in the following paragraphs the evidence of Ms Castellanos which is specifically referrable to the proposed development at 73 Fuller Street:

• That the proposed development does not meet the expected levels of design excellence sought by cl 7.7 of LEP 2015. Firstly, the building typology is dissimilar to the single residential character of the locality in form, siting and circulation patterns. Secondly, the form of the building, being an elongated design with open corridors and an open carpark, will result in amenity impacts for the adjoining properties that would not be expected in the R2 Low Density Residential zone. Thirdly, it is uncharacteristic for communal open space to be located in the front setback of a development.

• That the colocation of the communal open space associated with 73 Fuller Street with that of 71 Fuller Street (both adjacent the common boundary) will increase the associated noise and disturbance experienced by residents from the use of these communal open spaces.

• The elevated corridor proposed will result in overlooking impacts to the existing dwelling at 75 Fuller Street.

• The vehicular access driveway and open carpark will have unreasonable adverse acoustic impacts on the residential dwelling at 75 Fuller Street.

83. In response to Mr Dickson’s evidence in relation to the application of the planning principle in Project Venture, Ms Castellanos argues that:

• The uncharacteristic elements of the proposal make it difficult to sustain an assertion of compatibility with the characteristics of the locality. The attributes Ms Castellanos nominates can be summarised as: the built form being proposed beyond the predominant front building line; the built form extending beyond the rear average building alignment; the length of the side elevation, the uncharacteristic vehicle circulation pattern and atypical parking arrangement.

84. Ms Castellanos argues that the Court would firstly conclude that the precondition in cl 7.7 of LEP 2015 is not met as the development does not exhibit design excellence; and secondly after giving consideration to whether the design of the development is compatible with the character of the local area the Court would conclude it is not.

Submissions

85. Ms Hemmings, Counsel for the Respondent notes that having regard to the amended architectural and landscape plans the relevant considerations at cl 7.7 of LEP 2015 that remain in contention are:

• satisfaction of cl 7.7(4)(a) which requires consideration of ‘whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved’.

• satisfaction of cl 7.7(4)(e) which relevantly requires the consideration of the following sections of DCP 2015:

• Part C cl 1.2 – Aims and objectives. In particular (b) and (c);

• cl 1.5 – Building elements and design principles. Relevantly those relating to setbacks, site coverage, built form, active street frontage, and landscape planting.

• cl 7.7 (4)(f) and in particular the following listed matters:

• at (i) the suitability of the land for development;

• at (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; and

• at (ix) the pedestrian, cycle, vehicular and services access and circulation requirements.

86. It is Ms Hemmings submission that the Court would, after considering the matters at cl 7.7 of LEP 2015, conclude that the overall design of the proposed developments fails to exhibit design excellence. The Court would therefore find the precondition is not met, precluding the grant of consent.

87. In support of this submission Ms Hemmings identifies the following poor design outcomes that would result from the proposed developments:

• numerous design inconsistencies in the architectural and landscape plans leading to uncertainty as to the final design, for example:

• the inclusion and/or location of the motorised gate to the carpark;

• the inclusion of a common boundary fence between 71 and 73 Fuller Street;

• the height of the front boundary fence; and

• the design of the rear pergola.

• that the fact of compliance with planning controls does not ensure design excellence, which requires a focus on the design of the development as a whole.

• that the built form proposed by the development applications is responsive to the functionality of the buildings rather than aesthetics.

• that the built form is atypical for the local area, leads to amenity impacts both internally and to adjoining properties.

• that the outdoor car parking is inadequately screened, occupies valuable landscaping space on the site, has a poor relationship to the boarding rooms and is not ameliorated by proposed landscaping.

• that the amendments required to the window design to ameliorate privacy impacts results in the boarding rooms having poor outlook, a matter which was accepted by Mr Dickson in cross examination.

• that the communal open space is poorly located, of marginal amenity and will result in amenity impacts (noise) for the occupiers of the boarding rooms.

• that the tension between acoustic compliance and cross ventilation identified by Ms Castellanos results in unacceptable amenity for the boarding rooms.

• that the proposed development impact unreasonably on adjoining properties through overshadowing, visual privacy, and acoustic amenity.

• access to the boarding house from the carpark is poorly designed in both development in that it is convoluted, results in potential conflict between a disabled person and the entry gate and fails to achieve equitable access to the development.

(Respondents written submissions, 18 September 2022)

88. The second ground on which Ms Hemmings argues that the development applications should be refused is that the proposed developments are incompatible with local character. Ms Hemmings accepts that the relevant planning principle to assist the Court in undertaking an assessment of compatibility is that in Project Venture. For the purposes of the first test in Project Venture, Ms Hemmings submits that the Court would be satisfied on the evidence that the proposed developments will each have unacceptable physical impacts on surrounding developments arising from noise, overlooking and overshadowing detailed in the evidence of Ms Castellanos.

88. For the purposes of the second test in Project Venture, Ms Hemmings submits the Court would not be satisfied that each of the proposed developments appearance is in harmony with the building around it and the character of the street given the variation in height, setbacks, length of side elevations, orientation, landscaping, front fencing, and building typology. Further, Ms Hemmings submits the Court would conclude that the proposed developments are incompatible with the desired future character. Whilst accepting the agreement of the experts that the area is undergoing transition, Ms Hemmings argues that future development will exclude boarding houses (now prohibited) and require a finding of design excellence. Further, she notes the planning experts agree that on the side of Fuller Street of the proposed development the future character is likely to be dual occupancies with a side-by-side orientation due to the flood affectation at the rear of the sites. Whereas on the opposite side of Fuller Street such dual occupancies would likely be orientated behind each other. Relevantly she notes Mr Dickson agreed that future dual occupancies would have an orientation to the street and would be unlikely to have balconies down the side elevations or parking located behind the future building.

89. Ms Hemmings concludes that the preceding incompatibility, concordant with the amenity impacts to future residents and adjoining properties would support a conclusion that the developments warrant refusal on merit. (Respondents written submissions, 18 September 2022)

90. In the alternative, Mr Berveling submits that both development applications satisfy the relevant mandatory preconditions in the applicable planning instruments. Relevantly, he emphasises that the requirement of cl 30A of SEPP ARH in relation to compatibility with character requires “a consideration to be had of whether the design of the development is compatible with character of the local area; it does not require the consent authority to be satisfied thereof”. (Applicant’s written submissions 26 August 2022)

91. Mr Berveling submits that applying Project Venture the design of the proposed development is compatible with the character of the locality for the following reasons:

“(a) in accordance with the 1^st principle of GPC [GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268] the proposed buildings do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single storey. The height of the buildings complies with the 9m height development standard.

(b) In accordance with the 2^nd principle set out in GPC, the buildings are broken up and do not appear as 1 building.

(c) In accordance with the planning principle set out in Project Venture, the physical impacts of the proposed development on surrounding development is acceptable, and its appearance is in harmony with the buildings around it and the character of the street.”

(Applicant’s written submissions 26 August 2022)

93. In relation to design quality, and the precondition at cl 7.7 of LEP 2015, Mr Berveling argues that care must be taken by the Court that these are not taken as requirements, and that consideration of these matters is not done in a manner that is inconsistent with cl 29 of SEPP ARH. He particularly notes that:

• cl 29(1) of SEPP ARH operates to preclude a consent authority from refusing consent to a development on the grounds of density or scale of the buildings when expressed as a floor space ratio (FSR) if they are not more than the applicable maximum FSR. Given that no FSR applies to either of the sites, Mr Berveling submits the Court is precluded from refusing consent on the grounds of density or scale.

• Mr Berveling argues the same reasoning above applies to cl 29(2) of SEPP ARH in relation to building height, landscaped area, solar access, private open space, parking and accommodation size which he argues are precluded as grounds of refusal due to the compliance of the development applications with the nominated standards.

94. That relevant to cl 7.7(4) of LEP 2015, the proposed development applications comply with all the relevant planning controls in terms of setbacks, building height, landscaped area, room sizes, communal open space, solar access, privacy, car parking, stormwater, flooding and accessibility.

95. Focussing on the evidence of the urban designers, Mr Berveling notes the key differences between them can be summarised as:

1. the typology of the proposed building;

2. front elevation;

3. location of the car park, front and side setbacks; and

4. proposed landscaping.

96. Mr Berveling submits that Ms Castellano’s evidence focusses on highly specific components of the development rather than undertaking an overall consideration of the proposal as mandated by cl 7.7 of LEP 2015. Further, that a number of her concerns can be addressed by conditions of consent. Mr Berveling argues the Court should prefer Mr Dickson’s evidence that:

1. the building’s typology is that of a boarding house. It is not a motel.

2. the front elevation is acceptable for the locality and satisfies relevant Council controls.

3. the location of the car parking area is appropriate.

4. the front and side setbacks are acceptable and comply with the planning controls.

5. the proposed landscaping is appropriate.

97. Mr Berveling concludes that having considered the mandated matters at sub cl (4) the Court should conclude that both developments exhibit design excellence, satisfying the precondition at cl 7.7 of LEP 2015.

98. In relation to the merit issues raised by the Respondent Mr Berveling argues that:

• the issue of solar access to the boarding rooms is dealt with by cl 29 of SEPP ARH and cannot be a reason for refusal.

• with respect to internal privacy the boarding room windows are offset from other windows in the adjoining development, have a 1.6m sill height providing acceptable visual privacy.

• the concerns raised about the open corridor are acceptable and not a reason for refusal. The Respondent’s concern regarding overlooking ignores the inclusion of privacy screens on the first floor corridor.

• the proposed development provides cross ventilation and acoustic compliance. The Respondents concerns re noise from the carpark are overstated, the car parking is for five vehicles.

• with respect to the Manager’s room: there is no control concerning size, an area of 12m² is considered by SEPP ARH to be acceptable for a single person; the managers room contains appropriate kitchen and bathroom facilities.

• the design and presentation of the vehicular access is similar to that provided by nearby sites as demonstrated by the contextual site analysis plan in Exhibit C.

• the Applicant relies on the Access Compliant Report (Exhibit A, A1) which provides the following summary:

‘Wheelchair access is available to all areas where general access is available. It includes [the] parking area, private open space, indoor communal living area, laundry room, bin room etc and all the rooms are connected through corridors. This is achieved through the provision of complying walkways and ramps.’

99. Mr Berveling concludes that none of the issues raised by the Respondent as reasons for the developments to be refused on merit warrant such a determination as they are either: precluded by cl 29 of SEPP ARH; minor matters; or matters which could be addressed by conditions.

Findings

71 Fuller Street

Design excellence

100. Having considered the matters at cl 7.7(4) of LEP 2015, I am satisfied that the proposed development at 71 Fuller Street exhibits design excellence satisfying the precondition at sub cl (3) of the provision. In making this determination of satisfaction I have given consideration to the matters listed at sub cl (4) of the provision. In relation to the specific factors at cl 7.4(4) of LEP 2015 and the expert evidence I make the following comments in support of my finding of satisfaction.

101. I am satisfied that the proposed development is of a high standard of architectural design and incorporates materials and detailing that is appropriate to the location of the site and the building type: cl 7.7(4)(a) of LEP 2015. I acknowledge the evidence of Ms Castellanos in relation to her concerns about the typology and site planning of the development. I am not persuaded however by her evidence that either the planning of the site or the building location chosen within it are inappropriate. In my view, the orientation of the boarding rooms optimises natural light and amenity and, along with the design of the rooms in a single line, will result in a high standard of architectural design.

102. Finally, I am not persuaded that the longitudinal building design nor the location of the carparking leads to an inappropriate design response to the location or building type. Further, I accept and adopt the evidence of Mr Dickson that the architectural design, materials, and detailing is appropriate to both the location and a boarding house use, as summarised at [43]. I note however, as I held in Arxidia Pty Ltd v Randwick City Council; Arthur Wong Pty Ltd v Randwick City Council [2017] NSWLEC 1463 at [101] in my view there is no reason why affordable housing should not provide a high level of amenity and architectural design. I am not persuaded that design excellence in the context of a boarding house is not a lower bar. I am satisfied a high standard of architectural design, materials and detailing appropriate to a boarding house in the specific location will be achieved by the proposed development.

103. In relation to the matter at of cl 7.7(4)(b), I am satisfied that the proposed development will achieve an improvement in the amenity and quality of the public domain. Further, I am satisfied that the front elevation of the development is of appropriate scale, articulation and design in the locality. In considering this matter, I have given weight to the compliance of the development with the planning controls, the agreement of the planning experts in relation to the development’s satisfaction of those controls, and their statement of agreement that the development will improve the quality and amenity of the public domain. As detailed in the discussion and findings commencing at [109], I prefer the reasoning and evidence of Mr Dickson that the proposed development is compatible with the existing and desired future character, findings which are consistent with the conclusion that the form and external appearance of the development will improve the quality and amenity of the public domain.

104. As detailed in the evidence, there is no factual or evidentiary basis for a concern that the development will detrimentally impact on view corridors. I am satisfied that the development will not detrimentally impact on view corridors.

105. I accept the uncontested submission of Mr Berveling that in considering cl 7.7(4)(d) of LEP 2015 it is appropriate to give weight to the compliance of the development application with the standard at cl 29(2)(c) of SEPP ARH in relation to the communal room receiving a minimum of three hours direct sunlight. Further, I note the planning experts reached agreement that the solar access of the proposed development is acceptable. Whilst I acknowledge Ms Castellanos’ analysis at [63], I note that DCP 2015 does not contain specific development controls applicable in relation to solar access for boarding houses. Considering these circumstances, in my view, the matters at cl 7.7(4)(d) of LEP 2015, namely whether the development detrimentally impacts land protected by solar access controls in DCP 2015, do not support a conclusion that the development lacks design excellence as firstly no specific controls apply and secondly that any impacts arising from the development are acceptable on merit.

106. The fifth matter for consideration at cl 7.7(4) is the requirements of DCP 2015. As agreed by the planning experts the development application is compliant with the provisions of cll 29 and 30 of SEPP ARH and the relevant controls in DCP 2015. I am satisfied that the development satisfactorily addresses the requirements of DCP 2015.

107. Finally, I am satisfied that the development has addressed the matters at cl 7.7(4)(f) as follows:

1. I accept and prefer the evidence of Mr Miletic that the site is suitable for the proposed development on the three grounds he advances. I adopt his evidence and reasoning in the consideration of sub cl (4)(f)(i). Further, in my view Ms Horder places too much emphasis on the circumstances of the use being now prohibited in her assessment of the site suitability despite the applicable savings provisions detailed at [26].

2. I am satisfied that there is nothing in the evidence that establishes that the proposed development does not adequately address the existing and proposed uses or their mix. The proposed development is residential in character and use. As detailed in the discussion commencing at [109], I am satisfied that the proposed development is compatible with the character of the locality. Further, whilst on merit the Respondent, and Ms Castellanos, raise concerns in relation to some specific amenity matters and interactions between the proposed development and the adjoining properties for the reasons in my view none are sufficient to warrant refusal. In particular:

• I am not persuaded that the design of the development which at the ground floor provides a separation between the proposed carparking court and the boarding room through a change in level and a corridor area is inappropriate or will result in a poor outlook for the future residents.

• I am satisfied that the potential for overlooking to adjoining properties, or between 71 and 73 Fuller Street has been addressed by the amendments made to the development application.

• As detailed below at (6) I am satisfied the communal open space is of appropriate amenity and further I am persuaded that its location will not generate detrimental impacts between its use and any existing or proposed uses.

1. In those circumstances I am satisfied that the development addresses the existing and proposed uses and use mix in the locality.

3. As detailed in the evidence, excepting compatibility with the character of the locality, which is addressed in the following, there is no established concern that the development will detrimentally impact streetscape. I am satisfied that the development responds to the relevant streetscape constraints. Concordantly I am satisfied the development will not have a detrimental impact on the public domain.

4. I have considered the expert’s evidence and contrasting views on sub cl (4)(f)(iv) and (v), namely, 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, and the proposed bulk, massing and modulation of buildings. I note the Respondent further contends that the proposed development generates unreasonable amenity impacts on adjoining properties, those being overlooking, noise and internal amenity impacts for future boarding house residents. In considering sub cll (4)(f)(iv) and (v) I am satisfied that the proposed development firstly has an appropriate relationship with the adjoining properties (existing and proposed) and secondly has appropriate bulk, massing and modulation. The development has compliant setbacks, spatial separation and urban form. In my view the suitability and contextual fit of the proposed development is clear from a review of the streetscape elevations in the architectural plans and the substantial separation achieved between the proposed development and the adjoining existing detached residential dwellings.

5. I am satisfied that the proposed separation distance and the screening address any overlooking impact asserted by Ms Castellanos’ evidence. I note Ms Castellanos maintains a concern about the impact of noise generated by vehicle movements, however I accept Mr Berveling’s submission that those concerns should be considered in the context of the volume of movements expected given the scale of the development. Having done so I am not persuaded the asserted detrimental impacts are substantiated or that noise or light spill generated by vehicle movements arise as a detrimental amenity impact.

6. I am not persuaded that the communal open space is of poor amenity. In my view, the communal open space has a good orientation, facility provision and location within the site. Further, in my view Ms Castellanos does not give sufficient weight in her assessment to the substantial provision of open space provided at the rear of the subject site. I am satisfied that the development addresses 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 and does so in a way which supports a conclusion of design excellence.

7. I am satisfied that the proposed development addresses the bulk, massing and modulation of buildings. In considering this matter I have given weight to the compliance of the development with the planning controls, the agreement of the planning experts in relation to the development’s satisfaction of those controls and their statement of agreement that the development is acceptable.

8. Consistent with my findings at [101] in my assessment, the development appropriately addresses the matter of street frontage heights a matter for consideration at sub cl (4)(f)(vi) of LEP 2015.

9. In relation to the matters at (vii) and (viii) I accept and adopt the agreement of the planning experts that the proposed development complies firstly with the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and secondly, that the development does not result in unacceptable overshadowing impacts nor propose to use non reflective materials and colours and finally that the development will not adversely impact on wind speeds. Consistent with my earlier findings I am not persuaded that the overshadowing that arises from the development is unacceptable.

10. Further, I adopt and prefer the agreement of the planning experts that the developments achieve the principles of ecologically sustainable development (Exhibit 4). I am not persuaded by the evidence of Ms Castellanos that the extent of hard surfaces proposed is unacceptable. In reaching this conclusion I have given weight to the fact that the development complies with the standard at 6.9.1 of Part C of DCP 2015 in relation to the provision of deep soil zones and the comparative consistency of the proposed site coverage or hard stand in the proposed development with the existing adjoining development as demonstrated in the architectural plans.

11. I find that the development appropriately addresses pedestrian, cycle vehicular and service access and circulation requirements. I find that the access driveway and circulation proposed in the development is of an appropriate scale for the residential environment of the locality. On the basis of qualifications and expertise, I prefer the evidence contained in the Applicant’s access report and accept its conclusion that wheelchair access is available to all areas in the proposed development where general access is available.

108. For the preceding reasons, having considered the matters at cl 7.7(4) of LEP 2015 wholistically, I am satisfied that the proposed development at 71 Fuller Street exhibits design excellence satisfying the precondition at sub cl (3) of the provision.

73 Fuller Street

Design excellence

109. As noted at [35] both sites are identified on the Design Excellence Map: cl 7.7(2) of LEP 2015. It is necessary to make findings on the satisfaction of the preconditions contained in cl 7.7 of LEP 2015 for both development applications. In the circumstances of these proceedings the development applications are identical, with the exception that they are mirrored in form and located on adjoining sites. Much of the preceding evidence in relation to 71 Fuller Street is referrable to the proposed development at 73 Fuller Street. For brevity of this judgment, I adopt my findings at [101-108] in relation to the matters at cll 7.3(3) and (4) of LEP 2015 without replication. In response to the additional matters raised directed to the development at 73 Fuller Street, summarised at [79-84] I find as follows:

1. The overshadowing of 71 Fuller Street which will arise as an impact of the proposed development of 73 Fuller Street is not a detrimental impact sufficient to warrant refusal or a finding that the proposed development does not exhibit design excellence. This finding is supported by the fact that the proposed development is consistent with the height anticipated by the planning controls and is compliant with the setback requirements in DCP 2015.

2. That I am satisfied that the proposed development, and its use, is compatible with the character of the locality for the reasons detailed in the remaining section of the judgment.

3. That I am satisfied the communal open space proposed is acceptable and any adverse impacts arising from the use of the space is appropriately managed by the scale of the proposed development and its separation from existing and proposed adjoining developments.

4. That consistent with my findings at [107] I am satisfied that any overlooking impacts arising from the development are addressed by privacy screening and separation between the proposed development and adjoining properties.

5. That consistent with my findings at [107] any impacts arising from the location and usage of the vehicular access and parking are acceptable given the scale of the proposed development.

110. For the preceding reasons, having considered the matters at cl 7.7(4) of LEP 2015 holistically, I am satisfied that the proposed development at 73 Fuller Street exhibits design excellence satisfying the precondition at sub cl (3) of the provision.

Character

111. Pursuant to cl 30A of SEPP ARH a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. Whilst it is not necessary for the consent authority to find that the proposed development is compatible with the character of the local area, in these proceedings for both 71 and 73 Fuller Street (DA-20-1655 and DA 20-1659 respectively) I am so satisfied. My reasoning is as follows:

1. As detailed at [11] I am satisfied that the visual catchment that is relevant to the question of the compatibility of the developments with the character of the locality is the extent of the surrounding area from which the subject sites (or development on them) would be seen. In making the assessment I rely on the visual analysis plan prepared by Ms Castellanos and the description of the existing character summarised at [12] and [13].

2. I accept that the principle in Project Venture is relevant to the assessment of compatibility.

3. Consistent with my earlier findings I accept and prefer the analysis of Mr Dickson at [47] that the answer to the first question in Project Venture is that the physical impacts on the surrounding development are acceptable. I rely on my earlier reasoning in the judgment without restating them to support this conclusion.

4. Further, I accept and prefer the analysis of Mr Dickson at [49] and the agreed evidence of the town planners that the appearance of the proposed development is in harmony with the buildings surrounding it and the character of the street. I accept that the proposed development is not the same as the form of development, which is currently, or expected to be, in the locality. However, I am satisfied that the development continues the predominance of residential accommodation in the locality, is consistent with the built form controls in the planning controls, responds to the essential elements that make up the character of the locality and is consistent with the predominant hardscape to landscape ratios in the locality. Each of the elements support a conclusion of compatibility of the proposed development with the character of the local area.

112. I find that the Respondent’s contention that the developments are incompatible with the character of the local area is not made out.

Conditions

113. In response to Ms Castellanos evidence about acoustic amenity, I note that the annexed conditions of consent require the implementation of the consent to be in compliance with the Acoustic Assessment prepared by Tarun Chadha in May 2022 and the certification of acoustic criteria within the boarding rooms and the nearest residential receiver prior to issue of an Occupation Certificate.

114. Further, to resolve any uncertainty, the annexed consent conditions require the proposed driveway gate to be motorised and the pergola structure in the carparking area to be covered in both developments.

Conclusion

115. After an assessment of all the evidence under s 4.15 of the EPA Act including the evidence of the objectors, I am satisfied that the amended development applications are both acceptable on merit. In my opinion the development applications warrant approval subject to the annexed conditions.

Orders:

116. In proceedings 2021/364488, the Court orders:

1. The appeal is upheld

2. Development application DA-20-1655 for the construction of a 2-storey boarding house consisting of nine self-contained rooms, a self-contained managers room, onsite parking, tree removal and landscaping at 71 Fuller Street, Mount Druitt is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits are returned with the exception of Exhibits 1, A and C.

117. In proceedings 2021/364495, the Court orders:

1. The appeal is upheld

2. Development application DA-20-01659 for the construction of a 2-storey boarding house consisting of nine self-contained rooms, a self-contained managers room, onsite parking, tree removal and landscaping at 73 Fuller Street, Mount Druitt is determined by the grant of consent subject to the conditions in Annexure B.

3. Exhibits are returned with the exception of Exhibits R1, A1 and C1.

D Dickson

Commissioner of the Court

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(Annexure A) 

(Annexure B) 

Decision last updated: 19 January 2023