Gmka Pty Ltd v Penrith City Council

[2020] NSWLEC 1442

Land and Environment Court

New South Wales

Medium Neutral Citation:

GMKA Pty Ltd v Penrith City Council [2020] NSWLEC 1442

Hearing dates:

7-8 July, 25 August 2020

Date of orders:

21 September 2020

Decision date:

21 September 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Consent is granted to development application DA17/1222.01 for the demolition of existing structures and the construction of a two (2) storey boarding house incorporating 18 rooms with a basement parking level for 9 cars and 4 motorbikes, fencing, landscaping and drainage works on land at 31 Second Avenue Kingswood NSW, subject to the conditions at Annexure A.

(3) The exhibits are returned with the exception of: Exhibits A, B, C and G.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – determining which DCP controls apply – scale – visual character compatibility – amenity impacts – cross flow ventilation – application of contribution plans – contributions

Legislation Cited:

Environmental Planning and Assessment Act 1979

Penrith Local Environmental Plan 2010

Road Rules 2014

State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Veloshin v Randwick City Council [2007] NSWLEC 428
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:

Boarding Houses and Development Contributions for Local Infrastructure - report to Penrith City Council’s Policy Review Committee Meeting of 9 July 2018

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

Penrith Development Control Plan 2014

Penrith City Council, Development Contributions Plan for Cultural Facilities, 2003

Penrith City Council, Development Contributions Plan for District Open Space, 2007

Penrith City Council, Development Contributions Plan for Local Open Space, 2007

Category:

Principal judgment

Parties:

GMKA Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Fozzard (Applicant)
R White (Respondent)

Solicitors:
Macquarie Lawyers Burwood (Applicant)
Dentons Australia Pty Ltd (Respondent)

File Number(s):

2019/185180

Publication restriction:

Nil

Judgment

1. Penrith City Council (‘Council’) has refused Development Application DA17/1222.01 (‘DA’) which seeks consent for a boarding house development at 31 Second Avenue, Kingswood NSW 2747 (‘site’). The applicant has brought appeal proceedings against this determination under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’). The appeal falls within Class 1 of the Court’s jurisdiction.

2. Proceedings were conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy, issued 1 July 2020. More particularly, the hearing was conducted as a “virtual court room” using the “Microsoft Teams” platform. In this instance, and as a consequence of the issues raised and submissions from the parties in case management, the Court decided it would be appropriate to conduct a restricted site inspection immediately prior to the commencement of in-court proceedings. There was limited attendance, and social distancing requirements were employed.

The site and setting

3. I rely on Council’s Amended Statement of Facts and Contentions filed 10 June 2020 (Ex 1/Tab 14) for much of the material in this and the following two descriptive sections of the judgment, noting these facts were uncontested in the applicant’s reply statement filed 15 June 2020 (Ex 1/Tab 15).

4. The site is legally described as Lot 3, DP 39084. It is located on the northern side of Second Avenue. The site has an area of 705m² with a frontage of 15.24m and depth of 46m. The site falls approximately 1.4m from the south-east to the rear north-western boundary.

5. The site is currently occupied by a single storey dwelling and associated outbuildings. There are a number of trees within the front setback and backyard, particularly along the eastern side boundary and near the rear boundary.

6. Development within the vicinity of the site on the northern side of Second Avenue is typically single storey detached dwellings with the exception of a child care centre immediately adjoining the site to the east and boarding houses further east at 51 and 53 Second Avenue.

7. The site is located opposite the Western Sydney University (‘WSU’) Kingswood Campus. Kingswood Public School is located further west on the southern side of Second Avenue, and a small neighbourhood centre is further west again, about 300m from the site. Kingswood Train Station is located roughly 1km to the north-west.

Statutory context

8. The site is zoned R3 Medium Density Residential under Penrith Local Environmental Plan 2010 (‘LEP’). Boarding houses are permissible with consent in the zone. Relevant provisions of the LEP are considered below.

9. The site environs are also zoned R3 Medium Density Residential under the LEP, with the exception of WSU Kingswood Campus, public recreation areas and the neighbourhood centre.

10. The proposal relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’). Relevant particulars of the SEPP are considered below.

11. Penrith Development Control Plan 2014 (‘DCP’) is also prominent in this matter, including in regard to certain interpretative questions.

12. Council has a number of what I might call “issue-specific” Contributions Plans (‘CPs’). Were consent to be issued, the imposition of conditions with respect to these CPs is in contention.

Proposal

13. The DA, as amended, seeks consent for the demolition of the existing structures and the construction of a two (2) storey boarding house incorporating 18 single occupancy rooms. Basement parking would be provided for 9 cars and 4 motorbikes. Fencing, landscaping and drainage works are also proposed. Further particulars are dealt with in the consideration of the evidence.

Issues

14. The contested issues in this matter can be grouped under six headings:

• The proposal’s scale and visual character; and associated external impacts (Contentions 1-5)

• Amenity implications (Contention 6 and aspects of 1-5)

• Sustainability – in particular related to cross flow ventilation (Contention 7)

• Waste management – in particular related to truck movements (Contention 8)

• Public submissions (Contention 10)

• Contributions (as a contested matter in draft, or without prejudice, conditions provided by the parties to assist the Court).

15. The experts providing evidence in this matter:

Expert	Expertise	For
J Wood	Planning	Applicant
P Anzellotti	Planning	Council
M Tatian	Traffic/parking	Applicant
D Davidson	Traffic/parking	Council

16. To help frame the consideration of the issues, there is first a need to attend to a point of disagreement between the parties on a question of DCP interpretation. I do this immediately below, then work through the issues as listed above.

Interpretation of Chapter D5 of Penrith Development Control Plan 2014

17. Chapter D5 of the DCP includes section 5.11, which is concerned specifically with boarding houses. There is disagreement between the parties as to whether section 5.11 directs that certain controls in the DCP, otherwise applying to multi dwelling housing, should be applied to the evaluation of the subject proposal.

18. I agree with Council’s Written Closing Submission filed on 7 August 2020 (‘CWCS’, par 10) that the “key relevant objectives” of section 5.11 are:

“a) To ensure that boarding houses fit the local character or desired future character of the area.

b) To minimise negative impacts on neighbourhood amenity.”

19. Section 5.11 nominates a set of “controls” covering six topics. The following three topics are more relevant here: local character, built form and tenant amenity. I reproduce the relevant controls, as follows:

“1) Local Character

a) Boarding house development applications shall be accompanied by detailed site analyses to assist with the determination of local character.

b) A neighbourhood analysis should be completed to identify the desired future character of the neighbourhood. It is recommended that community consultation be undertaken as part of the analysis to determine aspirations for the future character.

c) Key elements that contribute to consideration of local and neighbourhood character include: - Surrounding land uses - Social and Historic Context - Scale - Built Form - Natural Environment - Density - Amenity - Safety and Security - Social dimensions and housing affordability - Aesthetics

(2) Built form, Scale and Appearance

…

c) Boarding houses shall be designed to have a sympathetic relationship with adjoining development.

d) Proposals must demonstrate that neighbourhood amenity will not be adversely impacted by factors such as noise and privacy.

e) in a Low Density zone, boarding houses should comply with controls for Single Dwellings where these controls do not conflict with the requirements of the SEPP.

f) A boarding house proposal of a scale similar to a multi dwelling housing development should comply with the controls and objectives for multi dwelling housing within this DCP, where they are not in conflict with the requirements of the SEPP and the objectives of the zone.

g) A boarding house proposal of a scale similar to a residential flat building or high density mixed use development should comply with the controls and objectives for residential flat buildings within this DCP, where they are not in conflict with the requirements of the SEPP and the objectives of the zone.

3) Tenant Amenity, Safety and Privacy

Boarding houses are to maintain a high level of resident amenity, safety and privacy by ensuring:

…

c) cross ventilation is achievable such that reliance on air-conditioning is minimised;

…”

20. It can be seen that the controls nominate development assessment principles and do not provide numerical standards of themselves. They also link to other provisions in the DCP, where certain detailed controls including numerical standards do sit.

21. The interpretive disagreement between the parties is in regard to whether subsection (2)(f), as reproduced above, applies. If it does apply, under section 5.11 of the DCP, boarding houses, and thus the subject proposal, “should comply with the controls and objectives for multi dwelling housing”.

22. The multi dwelling housing controls are at section 2.4 of Chapter D2 of the DCP. Section 2.4 includes numerical standards for such matters as: minimum lot frontage, breaks between buildings, wall length and building setbacks; which in certain circumstances would be more stringent than might apply, for example, to single dwellings or dual occupancy development.

23. The Council’s position is summarised in the CWCS (par 13):

“The task is straightforward: where the boarding house is proposed in a low density zone, the designer has regard to the built form controls for single dwellings. Where the boarding house is of a scale similar to a residential flat building, the proposal should comply with the RFB controls. Where the proposed boarding house is of a scale similar to a multi dwelling housing development, the controls and objectives for multi dwelling housing are to be applied. Thus there is necessarily a comparative exercise to be undertaken. It is common ground that (e) and (g) do not apply in this case. RFBs are not permissible in the R3 zone, but multi dwelling housing is (as are single dwellings). Council says that, given its ordinary meaning and context in the DCP, multi dwelling housing is of a scale somewhere between a single dwelling and a residential flat building in a high density zone.”

24. The CWCS (par 16) referenced four factors which were indicated as suggesting the proposal was of a scale similar to multi dwelling housing, in particular when compared to a single dwelling. These included the fact that 18 boarding rooms were proposed, as well as the size of the basement parking, waste facilities and driveway.

25. The applicant does not agree that the proposal should comply with the controls and objectives for multi dwelling housing. It is argued in the Applicant’s Written Final Address filed 24 July 2020 (‘AWFA’, par 11) that:

“…For those provisions to first comply the proposal must be of a similar scale to ‘multi dwelling housing’. With respect it is a comparative exercise but more importantly it is both a quantitative and qualitative assessment which is predicated on the knowledge of what first is a ‘multi-dwelling housing’. The second is to compare the scale of the proposed and see if they are ‘similar’. With respect Council just plainly gets this task wrong and has done so from the very beginning. A multi-dwelling housing development has dwellings that have “access at ground level”. So, the proposed must be compared to a multi dwelling development that necessarily has access at ground level to each of its dwellings. The best example of what is a ‘multi-dwelling housing’ is what is typically referred to as a townhouse style development. While Mr Anzellotti said that the proposed development met the definition of multi dwelling housing …, he (a) accepted townhouses would by definition fall under multi-dwelling houses; (b) accepted that townhouses typically have one or two bedrooms on the first storey, living areas on the ground floor, or it's a villa type development with bedrooms and living areas separate; (c) said in response to the Commissioners question as to what were the type of developments that were ‘multi dwelling housing’, he said townhouses, seniors housing and group homes”; (d) said that common multi dwelling housing in Penrith is provided on a single lot with the handle divided to the side or centrally.”

26. The AWFA references an existing “much larger scale” development at 18-22 Anthony Street for comparison, agreed as providing multi dwelling housing, and which was inspected during the site view.

27. The experts were also in disagreement in regard to interpretation. In oral evidence, Mr Anzellotti concluded that the proposal met the definition of multi dwelling housing. It would follow this conclusion that the DCP’s multi dwelling housing provisions would apply to the proposal. On the other hand, Mr Wood posited, in the Planners’ Joint Expert Report (Ex 4, par 78), as follows:

“The controls are not clear on specific setbacks in an R3 zone and it defers to consideration of the scale of a development. In my view the development site, if not to be used as a boarding house, is not capable of being redeveloped as multi-dwelling housing given that the site does not satisfy the minimum lot size of 800m2 in the PLEP 2010 (being only 705m2) – and it also does not achieve the 22m lot frontage in the PDCP 2014. Therefore the maximum development potential of the site, in the absence of the proposal, is a Dual Occupancy which is another form of development permitted in the R3 zone provided that the site area exceeds 600m2. On that basis I consider that in establishing the building envelope the dual occupancy provisions are more relevant than the multi-unit housing controls and I consider that the development, subject to adjustment of the rear setback, meets those controls for dual occupancies in the PDCP 2014.”

Consideration

28. The question for attention here is whether the proposed boarding house is of “a scale similar” to a multi dwelling housing development. It follows for me that the attention given by the applicant to whether the proposal was similar, or more correctly, dissimilar to a townhouse development, in its form or character, was for the most part misplaced. The applicant’s emphasis on the “qualitative” in the comparative test, was for me unconvincing as here, really, I am merely comparing medium density housing forms.

29. In Veloshin v Randwick City Council [2007] NSWLEC 428 at [29], Roseth SC finds that “scale is properly used only when referring to the relative size of two or more things”. One interpretive problem here is that multi dwelling housing comes in all sorts of different “sizes”. While acknowledging that the minimum site area for multi dwelling housing is 800m² and the site is only 705m² in area, this fact does not somehow direct me to ask a question whether a dual occupancy might provide a better comparison. For me the discretion involved in the term “similar”, when compared, say, to the term “the same”, directs me to conclude that the proposal would be of a scale similar to what might be expected of a smaller multi dwelling housing development. I am inclined to see this as sufficient to qualify the proposal for the trigger at section 5.11(C)(2)(f) of the DCP.

30. It will be observed that the proposal would not comply with the applicable numerical standards in regard to certain multi dwelling housing controls. In that regard, I acknowledge Council’s reference (CWCS, par 20) to the principles relevant to consideration of development control plans as found by McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87], and Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 (including at [75]). But I also need to have a mind to s 4.15(3A) of the EPA Act which would require me to be flexible in applying such standards and allow reasonable alternative solutions that achieve the objects of those standards. The application of flexibility is best considered in a practical sense with the consideration of the details of the proposal, which I turn to now.

Proposed scale and visual character

31. The Council contends that the proposal is not compatible with the existing or future character of the area. The matter under consideration here brings together issues relating to the development scale as well as form (including intended landscaping), and how they relate to local character ambitions for the setting, in a setting of deference to SEPP provisions.

Policy setting

32. The objectives of the R3 Medium Density Residential zone, to which I must have regard under cl 2.3(2) of the LEP, are as follows (I number them here for referencing purposes only):

1 To provide for the housing needs of the community within a medium density residential environment.

2 To provide a variety of housing types within a medium density residential environment.

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

4 To provide for a concentration of housing with access to services and facilities.

5 To enhance the essential character and identity of established residential areas.

6 To ensure that a high level of residential amenity is achieved and maintained.

7 To ensure that development reflects the desired future character and dwelling densities of the area.

33. Clause 4.3 of the LEP specifies a maximum building height of 8.5m for this site. No floor space ratio (‘FSR’) control applies.

34. Certain SEPP provisions establish jurisdictional positions relevant to the issue under attention here. Clause 29(2) provides as follows:

A consent authority must not refuse consent to (boarding house) development … 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,

35. Clause 30A of the SEPP then provides as follows:

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.

36. The DCP provisions have been introduced above and are considered further in the evidence.

Framing the evaluation

37. As considered in expert evidence and referenced by both parties in closing submissions, the question before me has good alignment with the second limb of the planning principle cited in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [24] (‘Project Venture’), which suggests the following question be put when testing context compatibility:

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

38. However, of high significance is that we are in a situation where an established low density area is in transition to medium density. In this kind of setting Project Venture (at [23]) finds that:

“… compatibility with the future character is more appropriate than with the existing.”

39. Council is concerned that individual developers not “dictate to the community what that desired future character should be” (CWCS, par 21). It refers to the DCP’s provisions suggesting community consultation on character occurring prior to the preparation of any boarding house DA (section 5.11(C)(1)(b) of the DCP). Be that as it may, in the setting now before me it is a matter for the Court to consider, directly, the question of compatibility with the character of the local area, which I do below on the basis of the evidence.

40. Three inter-related design or architectural elements warrant attention. The first is the overall building size and massing (including setbacks). The second is landscaping. The third is the exterior façade treatment. I consider them, in reverse order, below after opening with analysis of the evidence on what might constitute, relevantly, the local character.

Local character

41. Council contends that the character of the local area is “defined by single storey cottage style dwellings, deep set landscaped front courtyards with remnant canopy tree planting.” (Ex 1 Tab 14, par 2b). Mr Anzellotti generally supported the contention with his written and oral evidence (see for example, Ex 4, par 23).

42. Mr Wood’s opinion differed on two key points. First, he gave greater weight to the likely future character (likely in terms of the now zoning of the area for medium density development), and second in his description of the character as “diverse”. On the latter point he gave greater emphasis than Mr Anzellotti to the child care centre next door, university parking area directly across the road, nearby parklands and the like.

43. In regard to the question of character “retention” (or even “enhancement” if I reference the term from the fifth R3 zone objective), I note Mr White’s (Counsel for Council) line of questioning to Mr Anzellotti in regard to “the extent to which Council in its DCP (section 2.4.2) holds that the character of cottages and cottage gardens should be retained in this locality”. Mr Anzellotti posited, as follows, in response:

“My reading of that control is that there is strong emphasis on retaining of cottage and especially cottage gardens which deals with the nature and type of setbacks that are provided, which also deals with the traditional nature of the gardens being provided for. And the rear gardens and also the setbacks to the front, being enhanced by appropriate landscaping which contributes to the character and also the streets.”

(Tcpt, 8 July 2020, p27(39-44))

Consideration

44. In the broader locality the existing character is of the low density “cottage” form indicated by Mr Anzellotti. However, greater importance must be given to the fact of the now existing R3 Medium Density Residential zoning. Into the future, and in accordance with the first, second and fourth nominated zone objectives, a variety of housing types will be provided, to meet community needs, within a “medium density residential environment”, and with some “concentration” given access to services and facilities. The fifth zone objective, seeking to “enhance the essential character and identity of established residential areas”, can (with its valuing of what exists now) be seen as working as a counterpoint to the first, second and fourth objectives (concerned with the need for change); but is insufficient to expect the retention of a “cottage” character, especially a single storey cottage character in this, what must be seen as, medium density locality into the future.

Exterior facade treatment

45. The concern here is essentially building aesthetics. In oral evidence Mr Anzellotti posited as follows:

“I believe the treatment of the exterior façade is quite dull and bland, only using rendered coloured and also the face brick. There’s no coherent nature to it, it seems mix-matched throughout all of the elevations. The elevations also aren’t provided with any lightweight type features or materials to soften the presentation of the build form. So what you then have basically are large extended masses of built form especially to the eastern and the western elevation with colours and finishes which don’t provide or assist in softening the visual appearance of the building.”

(Tcpt, 8 July 2020, p48(14-21))

46. On the other hand, Mr Wood is satisfied with the building appearance noting its pitched roof (unlike another nearby boarding house cited) and use of a variety of materials taking cues from the setting, with front façade orienting to the street.

Consideration

47. It seems to me Mr Anzellotti’s concerns in regard to building materials and its relationship to aesthetics are overstated. Here I (again) generally follow Project Venture at [26], where Roseth SC found that it was moreso in special areas such as conservation areas where “architectural style and materials” would be seen reasonably as significant contributors to character. The location would not be seen as a “special area” in that sense. The building’s exterior façade treatment is quite satisfactory in this setting.

Landscaping

48. Clause 29(2)(b) of the SEPP puts front of mind the question of whether the landscape treatment of the front setback area is compatible with the streetscape in which the proposal is located. If it is compatible then, the proposal must not be refused consent on the grounds of landscaping.

49. Leave was granted to certain changes to plans to augment the landscape treatment of the proposal. The changes were accommodated in the plans at Ex C. One of the front pathways was removed to increase the area available for landscaping. A Water Gum would be sited central to the deep soil area at the front, and two Blueberry Ash trees are shown near the front boundary. A series of Oval Leaf Mint bushes would run along the western and eastern boundary in the front setback.

50. In the Supplementary Joint Expert Report of the planners (Ex 5), Mr Anzellotti questioned the spacing of the proposed planting and saw conflict with the likely height of trees with aerial cables. He was also concerned that the canopies of proposed Blueberry Ash trees would reach onto the road reserve boundaries. Mr Wood indicated “spacing appeared to be reasonable”.

Consideration

51. I agree with Mr Wood that the large hardstand parking area within the adjacent child care centre is a visually prominent element in the immediate streetscape. The open and pleasantly treed landscape of the WSU campus (notwithstanding the large carpark on this site as well) is also prominent when considering the streetscape in which the proposal is located. The tall trees along the southern side of Chapman Gardens also come into view. It is immaterial that these are different land uses to residential when streetscape compatibility is in question. Moving eastwards along Second Street, and if the extent of vegetation in the streetscape is the point of interest, the street trees play a prominent role. That is to say, it is quite common for housing blocks to consist of open grassed areas, rather than heavily vegetated in the front setback, alongside a driveway in the foreground to the mostly single storey residences.

52. The streetscape presentation of the proposal provides for not as much grassed area in the front setback as other dwelling houses in the street, but the proposal provides greater vegetation prominence and of considerable scale. Mr Anzellotti’s concerns in regard to aerial cabling are acknowledged but this problem exists at present, both on the subject site and with street trees in the local setting. Some pruning would be needed from time to time. I conclude similarly in regard to Mr Anzellotti’s concerns in regard to tree canopies proposed for the site extending onto the nature strip. Tree canopies extending across the boundary of private lands and road reserve nature strips, either way, seems to me to be a common enough occurrence, and often with more positive than negative effect.

53. The landscaping as proposed seems to me to respond satisfactorily to what is a somewhat mixed setting in landscape terms. In adopting the Project Venture [22] meaning of the term “compatibility”, as “capability of existing together in harmony”, and mindful of cl 29(2)(b) of the SEPP, I believe the proposed landscape treatment of the front setback area is compatible with the streetscape in which the building is located.

54. Given this finding, and the jurisdictional limits provided at cl 29(2)(b) of the SEPP, I will consider the question of landscaping along the side and rear boundaries in the context of the next topic.

Overall building form, bulk and scale (including setbacks)

55. The proposal meets the height controls, and no FSR controls apply in this case. The proposal also meets the rear building setback controls. I am satisfied with the front building setback of 11.745m as reflecting existing character. There are non-compliances with the numerical standards in regard to side setbacks, as well as building form.

56. The controls which Council presses are for the most part contained in Chapter D2 of the DCP at section 2.4 and are legitimate to apply given my finding on the proposal’s scale similarity with multi dwelling housing. The relevant controls fall within section 2.4.4 of the DCP which comes under the heading “Urban Form” and section 2.4.6 under the heading “Building Envelope and Side Setbacks”. The controls are reproduced selectively in the two tables below. I also list the “objectives” behind these controls.

Section 2.4.4 Urban Form

Objective

Control

“New buildings should show characteristics of traditional suburban development: dwellings oriented to face the street, building forms stepped or articulated, and integrated with the shape of surrounding garden areas.”

“…

3) Avoid "gun-barrel" style developments with long rows of attached dwellings, long straight driveways and rows of uniform width garden courtyards:

a) break buildings into separate blocks, each one not longer than 20m;

…

4) "Articulate" building forms by design measures that cast deep shadows:

…

b) external walls should not be longer than 5m between distinct corners;

c) the upper storey surrounded by a larger ground floor plan that incorporates projecting rooms, shady verandahs and carports;

…”

Section 2.4.6 Building Envelope and Side Setbacks

Objective (as relevant)

Control

“Comply with building envelope controls … and provide for reasonable landscaped separation between neighbouring buildings.”

“…

7) Setbacks from side boundaries should be varied to articulate walls to side boundaries:

a) a minimum setback of 2m, but only

b) along not more than 50% of any boundary.

…”

57. The building responds, as follows, with regard to these controls:

• The proposal has a building length of 29.975 more than the control requiring “building blocks” no longer than 20m (section 2.4.4(3)(a)).

• The 29.975m building length is 65% of the site length when the controls provides for a maximum of 50% (section 2.4.4(3)(b)).

• The upper level is setback somewhat from the ground level but not to Council’s satisfaction (section 2.4.4(4)(c)).

• The side setback is 2m on the western side but only 1m on the eastern side, there are variations to the building which introduce corners but Council would suggest not to the extent, or casting the depth of shadows or projections, requested by these controls (section 2.4.6(7)(a) and section 2.4.4(b)).

58. Council contends that as a consequence of not meeting DCP standards the proposal is an “overdevelopment” and is “excessively bulky in appearance and antipathetic to the current and future desired character of the area” (Ex 1/Tab 14, par 5(d)). The connection between landscaping and setback widths is also noted (ibid, par 1(f)):

“The development does not provide adequate setbacks to the sides or rear to enable landscaping or mature plantings which would assist in ameliorating the impacts of bulk and scale or which would complement the existing essential character, which includes key features such as remnant mature canopy trees and generous rear private gardens which contribute to a green corridor of trees and shrubs along adjacent backyards.”

59. Mr Anzellotti is concerned about insufficient deep soil along side boundaries to enable landscaping for visual relief when viewed from adjoining properties (Ex 4, par 7). On the other hand, Mr Wood’s evidence is that (Ex par 14):

“the building is articulated along the side elevations … where the building contains a series of steps in the façade and the upper level that is setback beyond the ground floor …with the exception of the south-western (sic) corner of the first floor that is 2 storeys however I consider this is offset by the large balcony area that provides articulation and relief.”

60. Mr Wood is also happy with the revised landscaping plan which increases the amount of side boundary planting and improves the arrangement for rear planting.

Consideration

61. The proposal is non-compliant with certain DCP standards. In such instances I am required, under s 4.15(3A) of the EPA Act, “to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards”.

62. When I do turn to the objectives of the standards, what I see is a development that does show some characteristics of what might be thought of as traditional suburban development. The proposal does orient to the street. It would have a reasonably deep front garden and significant planting along both side boundaries in the front setback. The overall intention is to accommodate landscaping which is more substantial than the more open grassed frontages which are characteristic to the street. This type of more concentrated front landscaping, when compared to the prevailing open grassed frontages, is seen as reasonable and appropriate, bringing a visually softening effect on the built form proposed here and which can be expected more widely, given the medium density zoning which now applies. The front (eastern-side) balcony is also a positive visual feature in the streetscape, orienting the development to “face the street”. There is an oversized driveway when compared with existing dwelling houses, but this proposal constitutes a (permissible) boarding house, something different to, currently characteristic, single storey dwelling houses. The driveway, which leads into a basement parking area, is not the gun-barrel style which the DCP seeks to avoid.

63. My concern about the DCP’s controls seeking to break the length of buildings to a maximum of 20m and not more than 50% of side boundary length, is that they seem more applicable to multi dwelling housing than to boarding houses as a typology. There is some support for this interpretation when the approved development at 1 Edna Street, generally cited as a positive exemplar in the evidence, is considered (Ex 2 Tab 4).

64. The DCP is also seeking to provide “reasonable” landscaped separation between neighbouring buildings. There is 2m of deep soil along the western boundary, which abuts a residence, and only 1m of deep soil along the eastern side boundary, which abuts the child care centre. There is generally a 4m deep soil area and setback to the rear. This is generally sufficient to provide reasonable landscaping in accordance with the revised landscape plan (Ex C) and the conditions suggested by the planning experts in regard to the trimming of the Cherry Lilly Pilly, and adopted in the draft without prejudice conditions filed 14 July 2020 (Ex G) at Conditions 6(f) and 114; and relocation of the two Blueberry Ash trees provided within the rear setback (Condition 6(e)). Further, the separation arrangement, which is greater to the dwelling to the west (minimum 2m building to the boundary allowing more spread) and less to the (non-residential) child care centre to the east (minimum 1m building to the boundary) is a reasonable resolution, when the considerable front setback eastern boundary planting is considered.

65. I accept Mr Wood’s evidence that the proposal is satisfactory in regard to building form, bulk and scale (including setbacks) and incorporates a satisfactory extent of articulation for this particular development, especially given the atypical neighbour, and capacity for landscape screening.

66. When considering, overall, whether the proposed scale and visual character of the proposal is satisfactory, development in the near vicinity needs to be given considerable weight, and the fact of the child care centre and its setting needs to be acknowledged. In addition, in this medium density zone the future character has more weight than the existing low density cottage character evident otherwise in the broader locality.

Amenity impacts

67. Ensuring a “high level of residential amenity is achieved” is the sixth objective of the Medium Density Residential zone. The core contentions were that the amenity of adjoining properties would be unreasonably impacted upon as a consequence of non-complying side setbacks and by the location of windows and openings; as well as the elevated nature of the proposal especially to the rear. The concerns centrally related to visual and acoustic privacy (and safety in regard to the child care centre), and the potential for a sense of visual overbearing.

68. I am satisfied that the landscaping as now proposed would adequately soften the visual presentation of the building to the residential neighbours. While front setback landscaping will soften the presentation from the street, there is less capacity to soften the visual massing when viewed from within the child care centre. However, and noting the proposal’s compliance with height controls, I am less concerned about this impact on this child care centre development, which provides a service to residents rather than exists as a residential use of itself.

69. I agree with the experts that visual privacy, or potential for overlooking, requires careful consideration, especially given the raised floor level at the rear. The draft conditions list a series of requirements which are intended to have the effect of heavily restricting overlooking opportunities. The particulars are specified in Ex G (Conditions 6(g)-(j)) but essentially the windows with potential for overlooking, both at ground and upper levels would have obscured glazing to a height of 1600mm above the finished floor level. All bathroom windows would be provided as obscured glazing. In addition, the privacy screen provided to the side elevation of the rear outdoor common terrace area would be solid and free of any gaps that can be seen through towards the child care centre (Condition 6(k)).

70. Turning to acoustic privacy, it is noted that Ex G provides for a deferred commencement condition in regard to this matter. The Noise Impact Assessment accompanying the application would need to be amended to the satisfaction of Council detailing how the demolition/construction and operation of the building meets relevant noise criteria. Certain baseline noise requirements are also listed in Ex G, including no loud music in the outdoor common open space, and limiting use of this space to between 7am and 10pm, with the courtyard use ceasing at 9pm (Condition 5).

67. Overall, the draft conditions at Ex G appear to me to adequately address amenity concerns.

Sustainability – cross flow ventilation

72. By the time of the hearing, this contention had essentially narrowed to the question of the proposed design response to matters of natural ventilation, and its relationship to energy conservation and efficiency.

73. Council’s submission is that (CWCS, par 51):

“Only rooms 6, 8 & 17 achieve natural cross flow ventilation. The remaining 15 rooms do not. Residents in those rooms will not have any choice but to rely on air conditioning in the hot summer months. The building design is not one which conserves energy and achieves sustainability in compliance with cl 7.4 of the LEP and C1.2.2 & 5.11(3)c) of the DCP in that it does not reduce overheating in summer or minimise reliance on air conditioning.”

74. Mr Wood’s position was that there was no requirement for cross ventilation in boarding house development, and that air conditioning would be necessary in this setting. Mr Anzellotti believed there was insufficient design effort to reduce the use of mechanical ventilation and/or air-conditioning systems as would be reasonably required under section 1.2.2(b)(iii) of Chapter C1 of the DCP.

Consideration

75. Clause 7.4 of the LEP requires a consent authority to have regard to the principles of sustainable development in the manner indicated in that clause, including consideration of a “whole of building” approach. I have considered the listed matters. It is a weakness of the proposal’s design that there is limited capacity for the natural ventilation which can provide for comfortable internal environments without air conditioning. Unfortunately, this seems to be not uncommon in boarding house design in my experience. While this is a weakness of the proposal it would not be adjudged determinative in this instance of itself.

Waste management

76. Council contended that long waste collection vehicles would cause traffic impacts and contravene the NSW Road Rules 2014. This was considered a consequence of the site’s road frontage of 15.24m which would not allow enough space for the garbage truck to stop and pick up garbage, when a minimum of 22m was required for multi dwelling housing under the DCP.    

77. Waste collection services can sometimes create nuisance, as a part of everyday life. In this instance I am satisfied with the response to this contention provided by Mr Tatian and agreed by the applicant, whereby a deferred commencement condition is imposed requiring details on the use of a private small rigid vehicle for rubbish collection. This arrangement reasonably responds to the contention in the circumstances.

Public submissions

78. Beyond the issues already considered, concerns raised in lay submissions included inadequate parking and associated adverse traffic implications and the social effects of what was seen to be an oversupply of boarding house developments in Kingswood. I am satisfied that the proposal meets the “cannot refuse” parking standard at cl 29(2)(e)(iia) of the SEPP; and am otherwise satisfied that there is no unreasonable traffic consequence of the proposal given the position adopted by Council’s experts in regard to traffic more generally (ie not a contested issue in the proceedings). There was insufficient evidence to suggest adverse social effects of local boarding house development.

Contributions

79. The draft conditions as filed (Ex G), without prejudice on Council’s part, would require the payment of contributions towards provision or improvement of public amenities and services. The specific contributions are nominated at Conditions 121, 122, and 123, and would in essence have the effect of requiring contributions as outlined below (subject to indexation):

1. Condition 121 for ‘Cultural Facilities’ an amount of $3,611.00; under the Penrith City Council’s Development Contributions Plan for Cultural Facilities, 2003 (‘Cultural Facilities Plan’).

2. Condition 122 for ‘District Open Space’ an amount of $41,577.00; under the Penrith City Council’s Development Contributions Plan for District Open Space, 2007 (‘District Open Space Plan’).

3. Condition 123 for ‘Local Open Space’ an amount of $15,029.00 under the Penrith City Council’s Development Contributions Plan for Local Open Space, 2007 (‘Local Open Space Plan’).

80. Subdivision 3 of Part 7 of the EPA Act includes provisions for such contributions. Section 7.11 establishes certain principles in relation to the imposition of conditions towards provision or improvement of amenities or services, including that they be “reasonable” (s 7.11(2) and s 7.11(4)). Then, s 7.13 introduces the need for contributions plans. It provides, relevantly, as follows:

(1) A consent authority may impose a condition (in relation to contributions towards provision or improvement of public amenities and services) only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

(2) However, in the case of a consent authority other than a council—

(a) the consent authority may impose a condition (in relation to contributions towards provision or improvement of public amenities and services) even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but

(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.

81. There are both legal and planning arguments in relation to these conditions. The arguments seem to be able to be framed, briefly, with three queries:

1. Validity of the conditions as put by Council – or whether the conditions are “of a kind allowed by, and (have been) determined in accordance with, a contributions plan” (s 7.13(1) of the EPA Act)

2. If not, whether the Court would be inclined to impose conditions requiring contributions under s 7.13(2)

3. If so, what is a reasonable basis for the contributions – including whether the conditions suggested by Council are reasonable.

Validity of conditions as put by Council

82. There are two tests established by s 7.13(1) of the EPA Act. The first is that the condition be “allowed by” the contributions plan. The second is that the condition be “determined in accordance with” the contributions plan.

83. Council submits that (CWCS, par 74):

It is clear from the above that each Contributions Plan applies to all residential development within Penrith LGA. A boarding house is a form of residential development permissible in the R3 zone and thus each Plan applies to boarding house development in that zone. As a matter of statutory construction therefore, the monetary contribution sought in the proposed condition is ‘of a kind allowed by’ each Contributions Plan and is permissible pursuant to s 7.13(1) of the EPA Act.

84. It is clear from the evidence that the three contribution plans do not refer directly to ‘boarding houses’. The Cultural Facilities Plan provides as follows at cl 7.1:

“7.1 WHAT TYPES OF DEVELOPMENT WILL BE LEVIED?

This Plan requires that a contribution be applied to new residential development including, but not limited to, housing for older people, multi-unit housing (including integrated housing), shop top housing, dual occupancy and subdivision.”

(emphasis added by me)

85. Clause 2.5 in both the District Open Space Plan and Local Open Space Plan, provide the following statement which Council argues would “allow” contributions conditions for boarding houses:

“This Plan enables the levying of developer contributions where residential development (including subdivision) is permissible in the City of Penrith.”

86. I also note that the cl 2.3(c) of both the District Open Space Plan and Local Open Space Plan indicate the purpose of these plans is to “authorise” the imposition of contributions conditions.

87. Boarding houses are defined in the Dictionary to the LEP as a form of “residential accommodation”. I note also that in the caselaw, boarding houses have been found “to be capable of being occupied or used as a separate domicile” and thus found to be “dwellings” (SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [63]). In turn, I have no difficulty in finding that boarding houses would fall within the term “new residential development” in cl 7.1 of the Cultural Facilities Plan. Insofar as the question is applied here, conditions for boarding house development would be the “kind allowed” to “be levied”. While the other plans are a little less explicit, similarly I would find that as contribution conditions are authorised to be levied under the District Open Space Plan and Local Open Space Plan for residential development, then such conditions would be allowed for boarding houses.

88. I am satisfied, that the first test of legitimacy is satisfied; that the contribution conditions as applied here by Council are of a kind allowed by the contribution plans. I now turn to whether the conditions have been “determined in accordance with” the contributions plan.

89. The Cultural Facilities Plan indicates “occupancy rates” for the four different types of “new residential development” listed in cl 7.1. There are similar provisions in the other contribution plans. The occupancy rates adopted in the plans are a key variable in the calculation involved in the determination of the contribution which the “condition” would seek to impose.

90. It is reasonable to consider that the test established by s 7.13(1) of the EPA Act, that the condition be “determined in accordance with” the contributions plan, would involve the use of such occupation rates (or similar) adopted in the plans to calculate the actual contribution embodied in the relevant condition. In this instance, Council has assumed an occupation rate for boarding houses and applied it to this proposal. The assumed occupation rate was formally adopted by Council after consideration of a report to Council’s Policy Review Committee Meeting of 9 July 2018 titled ‘Boarding Houses and Development Contributions for Local Infrastructure’ (‘Contributions Report’). There have been no modifications to the contribution plans subsequent to the adoption of this occupation rate by Council.

91. In this instance the contribution conditions have been determined based on a policy position adopted by Council but not embodied in a contributions plan (1.34 persons per boarding room has been adopted to calculate contributions). It is necessary for the contribution conditions to be determined in accordance with the contribution plans, rather than a separate Council policy position. The second test of s 7.13(1) of the EPA Act has not been met, which would invalidate the imposition of the conditions by Council.

Whether the Court should impose contribution conditions under s 7.13(2)

92. In their further supplementary joint report filed 8 July 2020, the planning experts considered contributions. They agreed that there was a nexus between the increased population associated with the approval of the boarding house development and the demand for services. The agreed conclusion was that it was reasonable for contributions to apply to boarding house developments. The experts disagreed with the reasonableness of applying an occupancy rate of 1.34 persons to determine contributions for this boarding house development.

93. The experts indicated that they were familiar with the Contributions Report, including its concerns with the merit and scope for levying development contributions on new boarding house developments. This report included a review of 18 boarding house proposals submitted to Council in the then recent past, averaging the occupancy levels out to come to the 1.34 persons per room occupancy rate now proposed by Council.

94. Mr Wood’s view was that the number of occupants in a boarding house development was clear, for example when compared to occupancy rates for a dwelling. In instances of uncertainty an averaging out of occupancy rates was reasonable. But in this instance it was clear that there would be 18 persons occupying the proposal, given its 18 single rooms. According to Mr Wood, the total contribution for 18 persons would calculate to $42,690 a difference of $17,527 when compared to the 1.34 persons per room occupancy rate assumed by Council.

95. In reference to the Contributions Report, Mr Anzellotti was of the view that (Ex A, par 28):

“…(the) 1.34 person rate for this boarding house is acceptable as this is an interim rate based upon the recent interest in boarding house developments. This is in the process of being reviewed with the finalisation of the new citywide contributions plan with a draft version expected to be reported to Council by the end of this year.”

96. Mr Anzellotti also observed that the 1.34 rate could account for visitors among other things. He also indicated that Council’s contribution rates do not distinguish between number of bedrooms in proposed medium density residential developments. The conclusion was that this averaging approach was broadly consistent with Council’s general approach to contributions.

Consideration

97. It is common and reasonable for local councils to make assumptions as they develop expectations in regard to demand for services, provisioning strategies and associated funding under contributions plans. The assumption of occupancy rates for various forms of residential development is required and commonplace as part of the required strategic approach to planning for provisioning as much as funding. That is to say, Council’s current work would be expected to be analysing both demand for services (with boarding house residents one group within wider residential growth expectations) and supply aspects (ie services provisioning in response to growth) as it prepares its new citywide contributions plan. This analysis of demand needs to make assumptions in regard to a range of future accommodation types, and then set practical parameters for development application assessment processes. Given this setting, I can accept that it would be over-precise to differentiate between single and double room boarding house developments in this kind of strategic work. Mindful of the powers available at s 7.13(2) of the EPA Act, I am satisfied that it is reasonable to rely on Council’s analysis as contained in the Contributions Report for the assignment of contributions to this proposal.

Conclusion

98. Mindful of the applicable controls, I am satisfied that the proposal, with plan modifications and draft conditions (Ex G) addresses the contentions.

Orders

99. The orders of the Court are:

1. The appeal is upheld.

2. Consent is granted to development application DA17/1222.01 for the demolition of existing structures and the construction of a two (2) storey boarding house incorporating 18 rooms with a basement parking level for 9 cars and 4 motorbikes, fencing, landscaping and drainage works on land at 31 Second Avenue Kingswood NSW, subject to the conditions at Annexure A.

3. The exhibits are returned with the exception of: Exhibits A, B, C and G.

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P Walsh

Commissioner of the Court

Annexure A (284450, pdf)

Architecture Plans (3143323, pdf)

Landscape Plans (1741680, pdf)

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Decision last updated: 21 September 2020