Hu v Northern Beaches Council - [2020] NSWLEC 1525

Land and Environment Court

New South Wales

Medium Neutral Citation: Hu v Northern Beaches Council [2020] NSWLEC 1525
Hearing dates: 27-28 August 2020 and 16 October 2020
Date of orders: 30 October 2020
Decision date: 30 October 2020
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted for the demolition of existing structures and the construction of a 10 room, three-storey boarding house for 19 residents, at 22 Ramsay Street, Collaroy, subject to the conditions in Annexure A.
(3) The exhibits are returned, except for Exhibits A, D, E, G, J, K and 10.

Catchwords:
APPEAL – development application – boarding house – whether in an accessible area – whether bus stop with services in only one direction sufficient – relevance of the gradient of the public footpath – whether design of development compatible with character of the local area – whether manager’s accommodation required – whether there is adequate information on quality of excavated material – whether balconies should be deleted

Legislation Cited:
Disability Discrimination Act 1992 (Cth)
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Warringah Local Environmental Plan 2011

Cases Cited:
ACN 603 347 834 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1261
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031
Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) [2018] NSWLEC 204
Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171
Certain Lloyd’s Underwriters v Cross [2012] HCA 56
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Touma v Liverpool City Council [2018] NSWLEC 1635
Valuer-General v Fivex Pty Ltd [2015] NSWCA 53
Vujicic v Northern Beaches Council [2019] NSWLEC 1349

Texts Cited:
Building Code of Australia
Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020)
Land and Environment Court of New South Wales Practice Note – Class 1 Development Appeals
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Jane Hu (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
J Lazarus SC (Respondent)
Solicitors:
Marsdens Law Group (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2019/6991
Publication restriction: No

Judgment

COMMISSIONER: Ramsay Street, in Collaroy, runs from Collaroy Beach to the east up a steep incline to the west, and is accessed by vehicle by its single intersection with Pittwater Road. At 22 Ramsay Street, development consent is sought for the demolition of existing structures and the construction of a boarding house containing 10 rooms, of which 9 rooms are double rooms and one room is a single room. A development application seeking the same was refused by Northern Beaches Council (“the Council”) on 20 September 2018. Ms Jane Hu appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).
In the course of the hearing, Ms Hu was granted leave to amend the development application to incorporate amended plans. The amendments sought to address issues raised by the Council and to respond to matters raised in the joint reports of the expert witnesses, consistent with the process envisaged by [90] of the Practice Note – Class 1 Development Appeals.
The proposed development is a boarding house across three storeys. The first storey is the lower ground floor, containing two boarding rooms and the basement car park with five car parking spaces. The ground floor contains three boarding rooms and two common rooms. The first floor, which has an increased setback to the north, east and south from the setback of the floors below, contains five boarding rooms. Each of the boarding rooms are double rooms, except for G.05 on the ground floor. The development has an architectural form which represents two attached pavilions with central break that is approximately 4.5m wide. When viewed from street and the east the building will have the appearance of a basement level with two storeys above, but when viewed from the west it will have a two-storey appearance. The proposed development includes a Plan of Management that limits the number of occupants in each room, and contains house rules and a complaints procedure. The proposal also incorporates public domain works for the construction of a footpath along the frontage of the site within the road reserve.
As a result of the joint expert evidence and the amendments made to the development application at the commencement of the hearing, a large number of the contentions that were initially raised by the Council have been addressed or resolved. Nevertheless, the Council remains opposed to the grant of the development consent. The Council contends that the site is not within an “accessible area” by virtue of the proximate bus stop not providing bus services in multiple directions, and that the design of the proposed development is not compatible with the character of the local area. The Council also says that the proposed development should be refused on the basis that the Court is not in a position to consider the quality of the excavated material and on the basis that it does not provide manager’s accommodation.
For the reasons that I have set out below, I have determined that in order to satisfy the definition of “accessible area”, there is no need for the proximate bus stop to be serviced by buses in more than one direction. I therefore find that the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”) applies to the development. As set out below, I then consider whether the design of the proposed development is compatible with the character of the local area, and conclude that it is compatible with both the existing and the future character. In so concluding, I find that its design provides an appropriate transition in built form from the low density residential zone in which it is located, to the residential flat buildings in the adjoining medium density residential zone. Further, I find below that there is sufficient information to consider the quality of the material to be excavated, and that there is no requirement for accommodation for a boarding house manager. Accordingly, I conclude that development consent should be granted subject to conditions.

The site and the locality

A site inspection was undertaken in the course of the hearing, with the parties’ legal representatives and the two expert town planners also present on site. The site is identified as Lot 1, DP 13819 and is also known as 22 Ramsay Street, Collaroy. It is rectangular in shape with a street frontage of 12.8m, depths of 45.72m and a total area of 585m². It has a significant fall from west to east, by 3.5m at the site’s frontage. It also has a significant fall from the front to the rear, where an overland flow path currently conveys stormwater across the site.
It is located on the south western end of the Ramsay Street cul-de-sac, 270m west of Collaroy Beach. Adjoining the site to the west and running along the western boundary is a right of carriageway which services 5 dwelling houses.
The surrounding development to the east and the north is predominantly 3-4 storey residential flat buildings. Ramsay Street is characterised by residential flat building developments, with only two dwelling houses that have street frontage, including the subject site.
An aerial photograph of the site is at Figure 1.

The planning controls

The site is zoned R2 Low Density Residential pursuant to the Warringah Local Environmental Plan 2011 (“WLEP 2011”). The site is on the eastern edge of the R2 zone, such that adjoining land to the west and north-west is also zoned R2, but the land to the east, north-east and south is zoned R3 Medium Density Residential. Boarding houses are a nominate permissible use in both the R2 and the R3 zones. An extract from the zoning map is shown at Figure 2.

The objectives of the R2 Low Density Residential zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

The development application relies on the provisions of the SEPP ARH, but the relevant clauses of the SEPP ARH only apply to the proposed development if the site is within an “accessible area”. Specifically, cl 27(2) of the SEPP ARH provides that “clauses 29, 30 and 30A do not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area.” There is a dispute with respect to whether the land is within an accessible area. Accessible area is defined as follows:

accessible area means land that is within—
(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or
(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or
(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.

Ms Hu relies on subcl (c), as the proposed development is within 400m walking distance of a bus stop on the western side of Pittwater Road.
If the land is within an accessible area, cll 29, 30 and 30A apply. Clause 29 sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides, at cl 29(2):

29 Standards that cannot be used to refuse consent
(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:
(a) building height
if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,
(b) landscaped area
if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,
(c) solar access
where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,
(d) private open space
if at least the following private open space areas are provided (other than the front setback area):
(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,
(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(e) parking
if:
(i) in the case of development carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and
(ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and
(iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and
(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,

(f) accommodation size
if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:
(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or
(ii) 16 square metres in any other case.

(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.
(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

In opening submissions, the Council indicated through its counsel that there is no issue raised by it with respect to the development meeting the “must not refuse” criteria concerning building height, landscaped area, solar access, private open space, parking and accommodation size. As such, development consent cannot be refused on any of those grounds.
Clause 30 of the SEPP ARH sets out some standards for boarding houses that must be met, otherwise the consent authority “must not consent” to the development. These requirements concern the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager’s room, and requirements for motorcycle and bicycle parking. Each of those standards are met, save for a dispute with respect to whether a boarding room is required to be provided for a boarding house manager, consistent with cl 30(1)(e), which requires:

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager

Clause 30A of the SEPP ARH also prevents a consent authority from consenting to a development “unless it has taken into consideration whether the design of the development is compatible with the character of the local area.”
As set out above, cll 29, 30 and 30A only apply in the event that I accept that the site is within an accessible area. If I do not accept that the site is within an accessible area, those clauses do not apply and I am not required to consider whether a manager’s room is required pursuant to cl 30(1)(e) or whether the design of the development is compatible with the character of the local area, for the purpose of cl 30A.
The proposed development includes earthworks, and cl 6.2 of the WLEP 2011 requires certain matters to be considered before granting development consent for earthworks. Clause 6.2(3) provides:

(3) Before granting development consent for earthworks, the consent authority must consider the following matters—
(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,
(b) the effect of the proposed development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

The site is mapped as Area E on the “Landslip Risk Map” in accordance with cl 6.4 of the WLEP 2011. Accordingly, cl 6.4(3) requires the Court, in exercising the functions of the consent authority, to consider the risks associated with landslides as follows:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—
(a) the application for development has been assessed for the risk associated with landslides in relation to both property and life, and
(b) the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and
(c) the development will not impact on or affect the existing subsurface flow conditions.

Based on the evidence of the geotechnical engineers, outlined in summary form below, I am satisfied of each of the above matters.
The Warringah Development Control Plan 2011 (“WDCP 2011”) also applies. Part B1 concerns wall heights, requiring that walls “are not to exceed 7.2 metres from ground level (existing) to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas wholly located within a roof space”. There is an exception to this requirement, as follows:

“Exceptions
This control may be varied on sites with slopes greater than 20% within the building footprint (measured at the base of the external walls), provided the building:
• does not exceed the 8.5 metre height development standard;
• is designed and located to minimise bulk and scale; and
• has a minimal visual impact when viewed from the downslope sides of the land.”

There is a dispute between the parties as to whether there is a breach of the wall height control, and if there is a breach, whether the exception applies. Whilst this is not raised as a contention in the proceedings, the Council raises the non-compliance in the context of the assessment pursuant to cl 30A of the SEPP ARH, which concerns the compatibility of the development with the character of the local area.
Similarly, the control concerning the side boundary envelope in Part B3 is raised by the Council in the context of the assessment pursuant to cl 30A of the SEPP ARH. The control requires that the building “must be sited within a building envelope determined by projecting planes at 45 degrees from a height above ground level (existing) at the side boundaries of … 4 metres”. The proposed development breaches this control on both the eastern and western side boundaries.
Part C7 of the WDCP 2011 concerns excavation and landfill. It contains the following requirements:

“Requirements
1. All landfill must be clean and not contain any materials that are contaminated and must comply with the relevant legislation.
2. Excavation and landfill works must not result in any adverse impact on adjoining land.
3. Excavated and landfill areas shall be constructed to ensure the geological stability of the work.
4. Excavation and landfill shall not create siltation or pollution of waterways and drainage lines, or degrade or destroy the natural environment.
5. Rehabilitation and revegetation techniques shall be applied to the fill.
6. Where landfill is necessary, it is to be minimal and shall have no adverse effect on the visual and natural environment or adjoining and surrounding properties.”

Part D1 of the WDCP 2011 concerns landscaped open space, and requires a minimum of 40% of the site to be landscaped open space. There is a dispute about the amount of landscaped open space provided by the proposed development, which is set out further below. Whilst this is not raised as a contention, the experts agree that the landscaping of the site is relevant to the character assessment required by cl 30A of the SEPP ARH.
Part D18 of the WDCP 2011 concerns accessibility and adaptability. It contains the following requirements:

“1. The design is to achieve a barrier free environment with consideration given to the design of door handles and switches, entrances and corridors. Steep, rough and slippery surfaces, steps and stairs and narrow paths should be avoided.
2. There are to be continuous, independent and barrier-free access ways incorporated into the design of buildings.

3. Pathways are to be reasonably level with minimal cross fall and sufficient width, comfortable seating and slip-resistant floor surfaces.
4. Where there is a change of level from the footpath to commercial or industrial floor levels, ramps rather than steps should be incorporated.
5. There is to be effective signage and sufficient illumination for people with a disability.
6. Tactile ground surface indicators for the orientation of people with visual impairments are to be provided in accordance with the relevant Australian Standard.
7. Access for people with a disability is to be provided at the main entrance to the development.
8. Development is to comply with Australian Standard AS1428.2.
9. Where a development comprises at least five (5) dwellings, 10% (rounded up to next whole number) of dwellings shall be capable of being adapted (Class C) under AS4299”

Part E10 of the WDCP 2011 applies to land identified as a landslip risk under the WLEP 2011, and includes the following requirements:

“1. The applicant must demonstrate that:
• The proposed development is justified in terms of geotechnical stability; and
• The proposed development will be carried out in accordance with good engineering practice.
2. Development must not cause detrimental impacts because of stormwater discharge from the land.
3. Development must not cause detrimental impact on the existing subsurface flow conditions including those of other properties.”

Part E10 also includes the necessary steps to address requirements 1 to 3. With respect to land in Area E, it requires a geotechnical report and a hydrological assessment of stormwater discharge and subsurface flow conditions. A note to the requirements describes Area E land as steeper slopes in the Collaroy Plateau area, with slope angle of greater than 15% and containing “colluvial and residual soils and boulder talus”. The geotechnical report is required to include “a risk assessment of landslip in relation to both property and life”. The Council now agrees that this has been done, and no issue arises with respect to compliance with Part E10 of the WDCP 2011. Similarly, the parties agree that the various geotechnical reports, together with the joint reports of the geotechnical engineers, allows the Court to be satisfied of the matters in cl 6.4(3) of the WLEP 2011.

The evidence of resident objectors

A number of written statements from resident objectors formed part of the evidence, pursuant to [46] of the COVID-19 Pandemic Arrangements Policy of 8 July 2020. Evidence was also heard on-site from Dr Scott, one of the objectors to the proposal. The written submissions lodged with the Council following its notification of the development application are also in evidence.
The following is a summary of the issues raised concerning the proposed development in the written statements and the evidence given on-site:

Insufficient parking for future residents of the boarding house, which will exacerbate the existing problems of inadequate on-street parking on Ramsay Street.

The location is inappropriate due to the steep slope of Ramsay Street, making access to public transport on Pittwater Road unsafe and impracticable.

The location is inappropriate given that there is no safe proximate walking route to both the north and southbound bus stops on Pittwater Road.

The proposed boarding house is out of character in the locality and inappropriate in a low density residential area.

The path of egress along the side boundaries is of inadequate width to meet the requirements for accessibility.

Due to the subsurface water flow and extent of excavation, there is a risk of landslip and collapse to neighbouring properties, which has occurred in the past.

There are safety concerns with changing the topography of the pedestrian path and the nature strip in front of the proposed development.

There is inadequate solar access for future residents of the boarding house.

The plans for the proposed development do not show the retaining wall for the driveway that forms a common accessway for neighbouring properties, and the stormwater plans do not show the pipe within the accessway.

Inadequate boundary setbacks, landscaping and car parking aisle width, and excessive bulk and scale.

As set out above, the proposed development meets the “must not refuse” criteria for the provision of solar access and parking, which means that it cannot be refused on the basis of the adequacy of the solar access or parking provided.
Further, the evidence of the experts in accessibility is that there is an acceptable performance solution available concerning the path of egress along the boundary, such that there can be a reduced clear width of egress routes on both sides of the building, from 1000mm to 750mm between handrails, with enhanced emergency lighting. This is an alternative solution that is agreed by the experts to achieve the performance requirements of the Building Code of Australia (“BCA”) in lieu of the deemed-to-satisfy provisions in cl D3.3.
Contrary to the submissions made, any requirement for the development to comply with the Disability Discrimination Act 1992 (Cth) is constrained to the proposed development itself and not to public pathway to the site (see, for example, ACN 603 347 834 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1261, at [32]-[38]). As set out below, the evidence of the accessibility experts is that there are no issues concerning disability access and BCA compliance.
In addition, the evidence of the geotechnical engineers is that the landslip and slope stability risks at the site can be managed and reduced to an acceptable level using the piled shoring wall that is proposed.
A number of the other matters raised in the residents’ submissions are considered below in the context of my consideration of the Council’s contentions. With respect to the remaining matters raised by the residents and not dealt with below, those issues do not warrant refusal of the development application.

The expert evidence

Expert evidence on the accessibility issues was given in a joint report by Mr Mardiros Tatian, an accredited certifier and fire safety engineer engaged by Ms Hu, and Mr Mark Relf AM, a subject matter expert in accessibility and president of the Association of Consultants in Access Australia, engaged by the Council.
Mr Relf agrees that each of the amendments to the plans or alternative solutions proposed by Mr Tatian resolve the issues concerning accessibility and BCA compliance. As such, there is agreement that there are no issues concerning the amenity of the accessible unit, compliance of the lobby stairs with the BCA, the paths of egress on each side of the building, the path of travel to the accessible parking space, the access to open space for persons with a disability, the pedestrian access in the road reserve, the head heights provided to the garage entry, and the driveway and footpath gradients.
Expert opinion evidence on the traffic and parking issues was given in a joint report by Mr Antoun Elias, a civil engineer engaged by Ms Hu, and Mr Patrick Bastawrous, a civil engineer employed by the Council.
Mr Elias and Mr Bastawrous agree that the height clearance for the garage door complies with the minimum 2.3m head clearance required by AS2890, and that the proposed footpath on the public domain plan will provide a continuous path of travel for pedestrians. They also agree that the safety of pedestrians is protected by the traffic signal system proposed for the basement, which includes yellow flashing lights to alarm pedestrians of vehicles exiting the basement, and two mirrors for driver visibility. Mr Elias and Mr Bastawrous also agree that the traffic signal system will control the entry and exit of vehicles to ensure vehicles enter and exit the site in a safe manner. Further, they agree that a vehicle meeting opportunity analysis demonstrates that the probability of two vehicles travelling in opposite directions meeting on the ramp is 0.00287% and is therefore unlikely.
Expert evidence on the town planning issues was given by Mr Jeff Mead, a town planner engaged by Ms Hu, and Mr Steven Layman, a town planner and architect engaged by the Council. Their evidence is summarised further below, in the context of my consideration of the contentions.
Expert evidence on the geotechnical issues concerning the site was given by Dr Bryn Thomas, a geotechnical engineer engaged by the Council, and initially, by Mr Jorge Cabaco, a geotechnical engineer engaged by Ms Hu. However, following an adjournment of the hearing to a date upon which Mr Cabaco was not available, Dr Daniel Martens, a geotechnical engineer and environmental scientist, was engaged by Ms Hu. Dr Martens and Dr Thomas agree that the information contained within previous geotechnical investigations carried out by Soilsrock, as well as the supplementary investigation carried out by Dr Martens, provides sufficient data to enable assessment of the development application including the site shoring requirements, the suitability of the piling wall, the hydrological conditions, the landslip risk and the proposed excavation. Based on this data and on agreed conditions of consent, Dr Martens and Dr Thomas agree that the site is considered to be suitable for the proposed development provided that (Ex 9 p 6):

“(a) adequate temporary and permanent shoring is provided to all excavations
(b) best practice hillslope engineering practices are used during construction, and
(c) geotechnical conditions are imposed as recommended…”

They also agree that (at Ex 9 p 6) “[w]ith the appropriate shoring in place, the proposed excavation will preserve the integrity of the surrounding environment, protect adjacent properties and will not result in any adverse impact on adjoining land.”

Whether the site is in an “accessible area”

The Council’s position is that the site is not within an accessible area. Indeed, this formed one of the grounds for the refusal of the development application, notwithstanding that the statutory effect of it not being within an accessible area is only that the SEPP ARH does not apply.
I am required to decide whether the site is within an “accessible area” in order to determine the applicable planning controls. As set out above, if the site is within an accessible area, clauses 29, 30 and 30A of the SEPP ARH apply, which set out the “must not refuse” criteria (cl 29), the minimum development standards (cl 30), and a requirement to consider the compatibility of the proposed development with the character of the local area (cl 30A). If the site is not within an accessible area, then those clauses need not be considered, but an assessment will be required to be made as to the adequacy of the landscaped open space against the requirements of the WDCP 2011.
As set out above at [12], accessible area is a defined term within the SEPP ARH, and includes at subcl (c) land that is within “400 metres walking distance of a bus stop used by a regular bus service”. The term “walking distance” is also defined, as follows:

walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.

Ms Hu relies on the bus stop located on the western side of Pittwater Road, which provides access to northbound bus services in the frequency required by cl 4(1)(c) of the definition of accessible area. That bus stop is within 400m of the site, and is accessed by a public footpath that runs the full length of Ramsay Street, without any need to cross the road. There is no doubt that this bus stop meets the frequency requirements of cl 4(1)(c) and meets the requirement to be within 400 metres walking distance.

The Council argues that a bus stop in both directions is required

However, the Council argues that the construction of cl 4(1)(c) of the SEPP ARH requires that the words “a bus stop” be interpreted as requiring bus stops in both directions. Whilst there is a bus stop providing access to northbound bus services on the eastern side of Pittwater Road, there is no pedestrian crossing that would allow the distance that may be “safely walked” from the site to that bus stop to be less than 400m.
The Council submits that a site is not “accessible” within the meaning of the SEPP ARH if it is only possible to catch a bus from a bus stop within the requisite distance in one direction only. The Council submits that regard must be had to the context of cl 4(1)(c), and its purpose, where subcl (1) provides other modes of public transport where travel is permitted in (at least) two directions and where the “clear purpose of the provision is to ensure that public transport is reasonably (and safely) accessible, given the likely demographic of residents of the boarding house, and the limited car parking provision [in cl 29(2)(e)].”
The Council says that interpreting the clause in this manner is consistent with s 33 of the Interpretation Act 1987, which applies to an environmental planning instrument pursuant to s 5(5) of the same, and provides that:

33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

The Council also relies on s 8(b) of the Interpretation Act 1987, which enables the Court to read the singular “a bus stop” as the plural “bus stops”. In Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) [2018] NSWLEC 204 at [54], Sheahan J relied on s 8(b) to accept that the definition of accessible area could be met by a combination of bus services or bus stops to achieve the required bus frequency.
In putting forward its submissions on the proper interpretation of cl 4(1)(c) of the SEPP ARH, the Council relies on the reasoning of the Local Planning Panel, as follows:

“Usually, buses moving in one direction service a bus stop on one side of the road and buses moving in the opposite direction service a bus stop on the opposite side of the road.
In the Panel’s opinion, the preferable and sensible construction of the phrase “a bus stop” in paragraph (c) of the definition of “accessible area” is that it means a bus stop serviced by buses moving in each of opposite directions. It is not sufficient if there is a bus stop within 400 metres safe walking distance serviced by buses moving in only one direction if the safe walking distance to a bus stop serviced by buses moving in the opposite direction exceeds 400 metres. This construction is aided by the context. Paragraphs (a) and (b) of the whole definition of “accessible area” are concerned with prescribed proximate walking distances to a railway station, wharf or light rail station. Such facilities are used by public transport moving in opposite directions. That context suggests that the reference to “a bus stop” in paragraph (c) should be similarly construed. That construction is fortified by the sensitivity of the SEPP in requiring proximate public transport for occupants of boarding houses, who are likely to be particularly reliant on public transport because of their membership of very low income, low income and moderate income households.
On this construction, the SEPP is not satisfied in the circumstances of the present matter because although a bus stop used by north bound buses is within the prescribed 400 metres walking distance, a bus stop used by south bound buses is located a safe walking distance of either 1.3 kilometres or 1.6 kilometres (depending upon which route is taken). It is not safe for a pedestrian to cross the busy six lane Pittwater Road directly to the latter bus stop.”

The applicant’s position is that the statutory language is clear

Counsel for Ms Hu instead submits that the language of cl 4(1)(c) is clear, and that there is nothing ambiguous in the requirement for the site to be within 400m walking distance of “a bus stop used by a regular bus service”. As such, Ms Hu submits that you cannot extrapolate from the clear language of the clause to create an additional requirement that the bus stop be serviced by multi-directional buses.
Dr Smith, counsel for Ms Hu, submits that the SEPP ARH should be interpreted in accordance with the general principles of statutory interpretation (Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]). This includes using the text of the clause as the starting point. Ms Hu relies on what is stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]:

“the language which has actually been employed in the text of legislation is the surest guide to legislative intention”.

Similarly, she relies on the decision of Leeming JA in Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 at [26]:

“It is wrong to approach the question of construction by confining attention to the legislative purpose and disregarding the text. No particular theory or ‘rule’ of statutory interpretation, including that of ‘purposive’ construction, can obviate the need for close attention to the text and structure of the relevant provision”.

Ms Hu submits that the text of cl 4(1)(c) is not a situation where the drafting is less than “fastidiously precise”, or on which more than one interpretation is available. She argues that this is consistent with the conclusion reached by the Senior Commissioner in Touma v Liverpool City Council [2018] NSWLEC 1635, in which she stated that:

“This is not a case where two meanings are open in statutory interpretation. The words are not ambiguous and therefore the provision must be given its ordinary meaning. This interpretation, in my view, assists to provide a consistent planning regime for the provision of affordable rental housing.”

In light of the clear statutory language requiring a “regular bus service”, Ms Hu submits that the requirement for the bus stop to provide access to bus services in more than one direction, is not specified in cl 4(1)(c) and cannot be assumed. As observed by French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross [2012] HCA 56 at [26]:

“A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions… as the plurality said in Australian Education Union v Department of Education and Children’s Services:
‘In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.’”

A similar observation was made by this court in Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [8], wherein Jagot J stated that the proper interpretation of a planning instrument is “not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable”.
Ms Hu submits that the terms of the SEPP ARH in cl 4(1) are clearly distinct from the requirements in cl 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP HSPD”), in which there are specified facilities to which residents must have access, there are specified gradients that the paths of travel are required to meet, and the public transport must be available “both to and from the proposed development” within the specified timeframe. In circumstances where the SEPP HSPD is an earlier instrument, Ms Hu submits that the drafter of the SEPP ARH made a choice to depart from the language of SEPP HSPD and create its own clear requirements.

Finally, Ms Hu submits that no inferences can be drawn with respect to the likely demographic of residents of the boarding house and their requirements for car parking. In particular, cl 29(2)(e)(iia), which concerns the “must not refuse” criteria for car parking for boarding house development not carried out by a social housing provider, does not reduce the car parking requirement for developments located in an accessible area.

The site is within an accessible area

I do not accept the Council’s position that the interpretation of a “bus stop” in cl 4(1)(c) of the SEPP ARH requires a bus stop with services in both directions on Pittwater Road. For the reasons that follow, I accept and adopt the submissions made on behalf of Ms Hu, and find that the site is within an accessible area within the meaning of cl 4(1)(c).
From the outset, there is no basis upon which I am required to follow the decision of the Local Planning Panel. It is trite to say that the role of the Court on appeal in Class 1 of the Court’s jurisdiction is not to review the correctness of the reasoning of the Local Planning Panel, or to enter into some form of judicial review of that decision. Instead, it is the role of the Court to assess and determine the development application on its merits. In doing so, the Court exercises afresh the functions of the Council in determining the development application.
In doing so, I firstly consider that the wording of cl 4(1)(c) is clear. It clearly requires the site to be within 400m walking distance of “a bus stop used by a regular bus service”. There is no ambiguity with respect to what constitutes “a bus stop”, and there is nothing in the wording of either “bus stop” or “regular bus service” that requires that the bus stop be serviced by buses travelling in more than one direction, or to be serviced by buses moving in each of opposite directions. In the words of the Senior Commissioner in Touma v Liverpool City Council [2018] NSWLEC 1635, this “is not a case where two meanings are open in statutory interpretation”. Instead, the “words are not ambiguous and therefore the provision must be given its ordinary meaning”.
Secondly, its interpretation in accordance with its plain reading and ordinary meaning does not lead to an absurdity of the kind described in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, such that another interpretation should be adopted by the Court. The Council has not established any such absurdity.
Thirdly, the interpretation offered by the Council impermissibly requires additional words concerning the direction of bus services to be implied in the meaning of “a bus stop” or “regular bus service”. As stated by Pain J in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171, there is emphasis “on the importance of the words of the statute” (at [52]) and an “extension of that emphasis is that additional words should not lightly be implied in legislation” (at [53]). I consider that implying words in cl 4(1)(c) to require bus services in more than one direction, or in both of two opposite directions, goes beyond the plain meaning of the text and falls foul of Jagot J’s observations in Matic v Mid-Western Regional Council that the proper interpretation of a planning instrument is “not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable”. Merely because the Council considers it desirable that a bus stop provide access to bus services travelling in both directions does not permit the additional requirement to be implied in the words of the clause.
Fourthly, the Council’s position is based on the false premise that a bus stop usually comprises two bus stops providing services in two or more directions. Such a position does not account for single directional loop services or bus stops in one way streets. The Council’s interpretation of the words “a bus stop” to require the bus stop to be serviced by buses moving in both opposite directions would exclude bus stops in locations where there are loop services or one way streets, which, in my view, leads to an absurd outcome that is contrary to the plain reading of the definition of accessible area in cl 4(1)(c). The finding of Sheahan J in Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) was that the frequency requirements in cl 4(1) can be met by multiple bus stops, but it is not authority for the proposition that it can only be met by multiple bus stops.
Fifthly, the context of the words within cl 4(1) and the SEPP ARH does not persuade me that any departure from the ordinary meaning of cl 4(1)(c) is warranted. The Council’s submission on the context of the words within cl 4(1) is that the attributes of the other forms of public transport ought to be applied to a bus stop. I do not accept that this is an appropriate outcome of reading words in their context. Whilst the context of the words within a clause and within an instrument can assist in understanding the meaning of those words, this does not mean that the context permits words to bend beyond their ordinary meaning and, in considering “a bus stop”, absorb attributes of other forms of public transport that satisfy cl 4(1). Similarly, the context of the words within the SEPP ARH and the Council’s assertion as to the demographic of boarding house occupants does justify any departure from the ordinary and plain meaning of the text in cl 4(1)(c).
Further, I accept the submission of Ms Hu that the words of cl 4(1)(c) are not concerned with the facilities to which the public transport provides access. Nor are the words of cl 4(1)(c) concerned with ensuring that the access is provided “to and from” the proposed development. As submitted by Ms Hu, this is in contrast to the words in the SEPP HSPD, and it can be assumed that the plain words of cl 4(1)(c) of the SEPP ARH convey the purpose of the clause, which has a different purpose to the provisions in the SEPP HSPD.
For the above reasons I am satisfied that, to fall within cl 4(1), it is sufficient that there be, within 400m walking distance, one bus stop that provides access to services in the frequency required by cl 4(1)(c), even if that bus stop provides access to buses travelling in one direction only. With respect to the proposed development, the bus stop on the western side of Pittwater Road satisfies that requirement. The fact that the regular bus services that service that bus stop are only in a northbound direction does not preclude the bus stop from so satisfying that requirement. Accordingly, I am satisfied that the site is within an accessible area and that cll 29, 30 and 30A of the SEPP ARH apply.

The impact of the pathway gradient

Within its contention concerning whether the site is in an accessible area, the Council also asserts that the site is not suitable for the development in circumstances of the “extraordinarily steep gradient of Ramsay Street” (Ex 1, p 14). The Council contends that this is not a safe walking route having regard to “the prospect that a boarding house may well be occupied by some persons with limited mobility”. Two points can be made with respect to this issue.
Firstly, I do not accept that the steep gradient of Ramsay Street causes the site to fall outside of the definition of accessible area in cl 4(1)(c) of the SEPP ARH. There is no requirement, in either the definition of “accessible area” or of “walking distance”, for the “route that may be safely walked” (referred in the definition of “walking distance”) to be of a particular gradient. This is in contrast to cl 26 of the SEPP HSPD, which specifies the required gradients along a pathway from the site to the public transport services. In circumstances where there is no requirement for a particular gradient, I consider that the continuous pedestrian path within the Council’s road reserve from the site to the bus stop is sufficient to constitute a “route that may be safely walked”.
Secondly, a boarding house is a nominated permissible use in the zone, and there is nothing in the definition of “boarding house” or in the WLEP 2011 that requires the public footpath that provides pedestrian access to it to meet any particular standard for disability access. To impose such a requirement and use it as a basis upon which to find that the site is not suitable for the development would be arbitrary, in the same way it would be arbitrary to impose such a requirement on any other permissible use in the zone. The fact that the boarding house contains an accessible room does not create such a requirement, in the same way that other permissible uses are required to provide accessible or adaptable designs without having a requirement with respect to the gradient of pedestrian access along the local public footpath. In any event, as a matter of practicality, it is common ground between the parties that the accessible room can be accessed from the basement car parking along a path of travel that is acceptable to the experts on accessibility. It is also agreed between the parties that within the site all of the requirements of the BCA with respect to disability access are met and the proposal does not breach the requirements of the Disability Discrimination Act 1992 (Cth).
Accordingly, the pathway gradient along the public footpath on Ramsay Street is of no consequence to the suitability of the site for the development, or to my finding that the site is in an accessible area.

Compatibility with the character of the local area

As set out above, cl 30A of the SEPP ARH requires consideration of “whether the design of the development is compatible with the character of the local area.” The Council contends that the proposed development should be refused because it is not compatible with the character of the local area.

What is the character of the local area?

Consideration of the character of the local area is informed by both its existing character and its desired future character. The planning principle concerning compatibility is set out in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, in which Senior Commissioner Roseth said (at [26]):

“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.” (emphasis added)

With respect to the site and the locality of the proposed development, there is no description of the locality or its desired future character in the applicable planning instruments.
Mr Layman and Mr Mead agree that the locality comprises a mix of development types, scales and architectural styles. As set out in the above description of the locality, immediately adjoining the site is a three and four storey residential flat building, and to the west of the site located at a higher point in the street and sitting higher than the proposed development is generally two storey single dwellings.
From the site inspection, it is clearly apparent that the prevailing form of development in Ramsay Street is residential flat buildings, which are permissible in the R3 zone which adjoins the site to the east. The scale of these buildings is predominantly three-storey, and most of them provide ground level hardstand car parking accessed by a driveway that runs along a side boundary.
This is supported by the evidence of the character of the local area contained in the Assessment Report that went before the Local Planning Panel, which is confirmed by Mr Mead and is not contradicted by Mr Layman. That character is described as follows:

“The predominant character of Ramsay Street is older style three storey residential flat buildings with pitched roofs.
The dwelling houses located off of Ramsay Street are generally large multi-storey dwellings that are stepped as a result of the topography of the land. Areas of excavation are also a common feature of development along Ramsay Street as a result of the topography or the local area. The majority of these dwellings are not readily visible from the street.”

In addition, the uncontradicted evidence of Mr Mead is that the setback pattern in the locality is varied, as is the subdivision pattern.

The Council submits that the proposed development is not compatible

There are a number reasons why the Council submits that the design of the proposed development is not compatible with the character of the local area.
Firstly, the Council says that in the front setback of the proposed development, the extent of excavation, the high retaining walls, the palisade fencing, the intrusion of the basement into the front setback, and the hard surfaces result in a design that is atypical and out of place in this locality. It relies on the evidence of Mr Layman that the resulting landscape treatment and extent of change in topography is not characteristic of the locality.
Secondly, the Council says that the design of the proposal is out of character in circumstances where it is non-compliant with the WDCP 2011 controls with respect to wall height, side boundary envelope and landscaped open space. Mr Layman considers that some portions of the proposed first floor encroach beyond the maximum wall height of 7.2m up to a maximum of 8.35m. He also opines that the landscaping proposed in the landscape plan will not be able to be achieved due to the intrusion of the basement into the front setback and the large areas of paving, which means that the minimum landscaped open space will not be complied with. Specifically, he considers that only 17.9% of the site area will be landscaped, which is less than half of what is required by the WDCP 2011. Mr Layman opines that these non-compliances create a design of inappropriate character in the locality.
Thirdly, the Council argues that the proposed development is not compatible with the character of the locality because it does not have the character of a single dwelling house or of the low density residential environment. The Council submits that this is contrary to the objectives of the R2 zone, in particular the objectives to “provide for the housing needs of the community within a low density residential environment” and to “ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah”. Mr Layman opines that, although boarding houses are permissible in the R2 zone, their design ought to take on the character of typical dwelling houses. He considers that typical dwelling houses in the R2 zone display a two-storey character, whereas the proposed development is a high set three storeys with a character more akin to a residential flat building which is out of character in the R2 zone.

Ms Hu’s position on compatibility

Ms Hu disputes that the boarding house needs to be designed in a manner similar to a dwelling house in order to be compatible with the character of the local area, and instead submits that the design achieves compatibility with the character of the local area. In particular, Ms Hu raises the following points.
Firstly, Ms Hu submits that the “low density residential environment” envisaged by the objectives of the R2 zone includes the range of uses permitted with consent in the zone, which includes child care facilities, educational establishments, group homes, health consulting rooms, hospitals, places of public worship, and, relevantly, boarding houses. She relies on the evidence of Mr Mead that the built form character is then set by the applicable controls, and that there is no requirement for a boarding house to take on the form of a dwelling house. Mr Mead’s evidence is that the proposed development complies with the setback controls and with the maximum height development standard. Further, Ms Hu says that the proposed development complies with the wall height control, and achieves the objectives of the controls with respect to landscaped open space. Ms Hu therefore submits that the design of the proposed development is consistent with the low density residential environment as informed by the permissible uses and the applicable controls.
Secondly, Ms Hu relies on the evidence of Mr Mead that the three-storey form of the development and the treatment of the setbacks is compatible with the scale of the development that forms the existing character of the locality. Specifically, his evidence is that the building sits less than two storeys above the ground level of the right of way to the west, where the dwellings are two and three storeys in height. His evidence is that the three-storey form to the rear of the site sits adjacent to the building to the east, which is three to four storeys, and that the building opposite the site is four storeys. Accordingly, he opines that the three-storey appearance is compatible with the scale of development in the local area. Further, his evidence is that the building nestles into the slope of the site on the northern side which minimises its visual impact and provides for an appropriate setback.
Thirdly, Ms Hu relies upon Mr Mead’s evidence that the proposal is compatible with the landscape character of the locality. Mr Mead opines that that the front setback of 6516mm is generously landscaped, with all areas containing landscaping other than the pedestrian and vehicular access, and he notes that other development along Ramsay Street has hardstand areas and waste storage areas in the front setback. He also points out that the proposed development incorporates “a generous landscaped rear setback as well as a landscape pocket midway along the eastern boundary and strips of landscaping within the eastern and western side setbacks,” which is compatible with the landscape character of the locality.
Fourthly, whilst it is conceded that the proposal will not achieve the standard in the WDCP 2011 for landscaped open space of 40%, Ms Hu submits that the proposed development nevertheless achieves the objectives of the landscaped open space requirements, which are as follows:

“• To enable planting to maintain and enhance the streetscape.
• To conserve and enhance indigenous vegetation, topographical features and habitat for wildlife.
• To provide for landscaped open space with dimensions that are sufficient to enable the establishment of low lying shrubs, medium high shrubs and canopy trees of a size and density to mitigate the height, bulk and scale of the building.
• To enhance privacy between buildings.
• To accommodate appropriate outdoor recreational opportunities that meet the needs of the occupants.
• To provide space for service functions, including clothes drying.
• To facilitate water management, including on-site detention and infiltration of stormwater.”

In particular, Ms Hu points out that the proposed development provides paved communal open space to provide “outdoor recreational opportunities that meet the needs of the occupants”, and provides open space with dimensions that are sufficient to enable the establishment of “low lying shrubs, medium high shrubs and canopy trees”. Mr Mead opines that these plantings mitigate the height, bulk and scale of the building.
Finally, Ms Hu relies on the analysis set out in the assessment report, which was supported by the evidence of Mr Mead and includes the following analysis:

“the boarding house is smaller than the two buildings which directly adjoin it, but is moderately larger than detached dwelling houses. It is considered that the scale of the building proposed is suitable for the site and provides an appropriate visual transition between the R2 Low Density Residential and R3 Medium Density Residential zones.”

…
“The architecture of the proposed development could be perceived as a large contemporary dwelling house when viewed from the streetscape, and this facade is significantly less visually dominant than the majority of the buildings within the streetscape. Likewise, the size and scale of the development is lesser than the majority of the buildings within the streetscape.
Notwithstanding that the development is of a size that is compatible with surrounding developments, the built form has been broken into two pavilions (adjoined via a breezeway) and has a reduced first-floor floor plate to further reduce the perceived visual scale of the development. The generous landscaped areas provided throughout the site will contribute to mitigating any perceived visual bulk of the development.”
…
“The proposed development is for a contemporary and highly articulated building that composes a variety of materials and setbacks to form a desirable architectural form with a semi-basement car park. Whilst the proposed development does differ in architectural character from the existing streetscape character, it does not do so in a manner or magnitude that would detrimentally impact on the character of the area, be visually shocking and incompatible with the zone nor do so in such a manner that would warrant a redesign of the building appearance.
It is envisaged that if this application is to be approved, and then once built, the development will be visually enhancing to the streetscape and could present as a new architectural benchmark for the street.”

As such, counsel submits on behalf of Ms Hu that there is no objective or subjective basis upon which it could be said that the proposed development is not in harmony with the existing character or with the desired future character of the low density residential environment.

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

It is well established that the consideration of the compatibility of the design with the local character does not require the design to be the same as the predominant form of the locality. “Compatibility” does not equate to sameness, and concerns an urban design context in which buildings are “capable of existing together in harmony”: see Project Venture Developments v Pittwater Council at [22].
As set out above, to appreciate the urban design context, it is important to understand both the existing character and the desired future character. The desired future character is informed by the applicable local controls. Further, the “local area” with which compatibility is sought is not constrained by the zoning. As such, the existing residential flat buildings that are the predominant built form in Ramsay Street form part of the existing character of the local area, notwithstanding that they are not a permissible use in the R2 zone in which the site is located.
In light of this, I consider that the scale of the proposed development is compatible with the scale of development in the locality. Both Mr Mead and Mr Layman agree that the development will be viewed as approximately one to two storeys from the west, which is within the R2 zone. They also agree that the building will read as three storeys from the street and that the upper level is, in part, setback from the level below. I accept the evidence of Mr Mead that the three-storey form presenting to the east, and its presentation to the streetscape, is compatible with the scale of the residential flat buildings to the rear and on Ramsay Street. I consider that, consistent with the analysis contained in the Assessment Report, the bulk and scale of the building provides an appropriate transition in built form from the two and three storey dwelling houses that are set high in the street to the west in the R2 zone, and the residential flat buildings to the east and north in the R3 zone. Its scale, with the basement level as the lower storey and the upper level set back from the floors below, is smaller and better articulated than the residential flat buildings to the east, but is greater than that of the dwellings to the west. The transition of built form in this manner is appropriate given the site’s interface with the R3 zone, and enables the design of the development to achieve compatibility within the streetscape.
Indeed, I observed at the site inspection that although the site is within the R2 zone with the dwellings to the west, as a result of the drop in the topography from the right of way to the site, the length of the right of way, and the high-set siting of the dwellings to the west, there is a visual separation of the dwelling houses from the natural ground level of the site. The proximity of the residential flat buildings to the east and south of the site then has the consequence of the site having a greater visual connection with the residential flat buildings to the west than with the dwelling houses that form part of the R2 zone. This supports my finding above that it is appropriate for the built form of the proposed development to provide a transition with the R3 zone, which the design of the proposed development achieves.
I do not accept the Council’s submission that the retaining walls in the front setback, or the fencing, are atypical in the local area. The right of way to the west is supported by a retaining wall of a height of up to 2m (as per Dr Scott’s evidence), and due to the topography of the street, there are a number of retaining walls within the front setbacks of residential flat buildings, including the residential flat building that adjoins the site to the east. Similarly, fencing occurs within the streetscape at a number of properties along Ramsay Street.
I also cannot accept that the excavation for the basement entrance is atypical in the local area. Due to the topography of the street, it is readily discernible that a number of the residential flat buildings have used extensive excavation to provide car parking below natural ground level and accessible by a driveway that is cut into the site. This is a feature of the residential flat buildings across the road from the site, at 19 and 23 Ramsay Street.
Similarly, I do not accept the Council’s submission that the quantum of landscaping within the front setback is out of character in the local area. Whilst what is provided on the site is not compliant with the control in the WDCP 2011 requiring 40% landscaped open space, it is nonetheless compatible with the landscaping within Ramsay Street. The landscaped open space within the local area of Ramsay Street is quite limited, with much of the ground level of developments dominated by hard stand areas. For example, the residential flat buildings at 4, 8, 19, and 23 Ramsay Street have front setbacks that are dominated by hard stand concrete or paved surfaces, and the buildings at 4, 12, 18, 7, 9 and 11 Ramsay Street all have significant areas of hardstand or paved surfaces along the side setbacks and at the rear. I therefore accept that the evidence of Mr Mead provides comparatively generous landscaping in the front setback and across the site, which will enhance the streetscape. Further, I consider that the landscaping of the front setback will be comparable with 18 Ramsay Street, which has all areas landscaped other than the driveways and pedestrian access. The continuation of that scale of landscaping across the front setback of the proposed development, as is proposed, will achieve consistency and compatibility in the streetscape, even if not all of the landscaping proposed can be achieved due to the protrusion of the basement into the front setback.
I turn then to the question of compatibility of the proposed development with the desired future character, including as expressed in the objectives of the R2 zone. On this point, I accept the evidence of Mr Mead that the desired future character of the R2 zone, and its “low density residential environment” as referred to in the zone objectives, is established by the permissible uses in the zone, and the applicable built form controls. Contrary to the evidence of Mr Layman, there is no requirement (in the WDCP 2011 or elsewhere) for permissible uses within the R2 zone to take on the appearance of a single dwelling. In light of the significant compliance of the proposed development with the applicable controls, I accept that it is compatible with the desired future character of the local area and consistent with the objectives of the zone. With respect to the non-compliances with the WDCP 2011 raised by Mr Layman, I consider that the non-compliances are acceptable in the circumstances and I make the following findings:

The quantum of the proposed landscaped open space is significantly less than that required by Part D1 of the WDCP 2011, and is approximately 17.9%. In that respect, I accept the evidence of Mr Layman that all the paved areas and areas with a soil depth of less than 1m should be excluded from the calculation, including areas with permeable paving. I also accept that some of the landscaping in the front setback may not be able to be achieved, but not to the extent opined by Mr Layman, given the downturn in the basement roof slab and the soil depth above the basement roof slab. I consider that the non-compliance with this control is acceptable in an assessment on character for these reasons: Firstly, I have found that, in the context of the site, the landscaping proposed enhances the streetscape and is generous in comparison to other developments in Ramsay Street; Secondly, the nature of the use as a boarding house creates a need for areas of functional paved open space for communal space, some of which is required to be accessible, and none of which can be included in the landscaped area.

The breach of the side boundary building envelope control is restricted to the third storey. The uncontested evidence in the assessment report indicates that the breach is as a result of the topography of the site, and both Mr Mead and Mr Layman agree that the reduced setback to the west is generally acceptable. I also consider that to the east, the third storey is adequately set back and articulated from the floors below, particularly given its context adjoining the R3 zone and my finding above that the proposed development provides a built form that achieves an appropriate transition to the higher density zone.

I consider that the proposed development meets the criteria for the exception to the wall height control. It is on a slope greater than 20%, the built form does not exceed the 8.5m height standard, and the design minimises its bulk and scale by following the topography of the land and by incorporating an upper level that is set back from the floors below. As such, when viewed from the downslope the proposed development has a visual appearance of a basement with two storeys above, the upper level of which is set back and is of recessive design, which results in a built form of minimal visual impact and appropriate in its context.

For all of these reasons, I consider that the design of the development is compatible with the character of the local area.

Quality of the excavated material

The Council contends that there is insufficient analysis undertaken of the material to be excavated for the Court to consider, pursuant to cl 6.2(3)(c) of the WLEP 2011, “the quality of the fill or the soil to be excavated”. The Council submits that the Court cannot consider the quality of the fill or the soil to be excavated unless it has been analysed. The Council points to the evidence of Dr Martens, whose written evidence concerning cl 6.2(3)(c) is that “material excavated from the site will be classified in accordance with the NSW Waste Classification Guidelines and disposed to an appropriately licensed facility” (Ex G). The Council says this evidence is not sufficient to allow the Court to consider the quality of the soil to be excavated.
I do not accept the Council’s contention in this regard. In cross examination, Dr Martens gave oral evidence that his inspection of the site, its use for residential purposes, and the data from the boreholes was sufficient to satisfy him that the material to be excavated was likely to be virgin excavated natural materials (“VENM”) and a small amount of general solid waste soil. I accept his evidence. Borehole testing was carried out both by Soilsrock and by Dr Martens, and the soil samples (including samples at various depths) was the subject of analysis on moisture content, lithology, and point load strength. Dr Martens’ evidence is that in his inspection of the site, it was apparent that the current dwelling was constructed in cut, and the fill in the southern portion of the site was either from the excavation for the driveway or from the cut for the dwelling. I accept that this evidence, together with the analysis contained in each of the Soilsrock reports, is sufficient to inform me of the quality of the soil to be excavated. In being so informed, I consider that no issue arises with respect to the quality of the soil to be excavated. Nevertheless, it is appropriate to impose the usual condition with respect to ensuring the excavated material is classified following its removal from the site in accordance with the NSW Waste Classification Guidelines, so that it is disposed of appropriately.
Further, relying on the evidence of the geotechnical engineers and each of the Soilsrock reports, I have considered the remaining matters in cl 6.2(3) of the WLEP 2011 and accept the evidence of Dr Martens (in Ex G) that no issue arises with respect to any of those matters.

Absence of manager’s accommodation

The Council contends that the proposed development has the “capacity to accommodate 20 or more lodgers”, and that cl 30(1)(e) therefore compels refusal of the development application unless accommodation is provided on site for a boarding house manager. This contention is founded upon the basis that bedroom G.05, which is shown as a single room, is of a size and configuration that has comfortable capacity to accommodate two persons. This is supported by the evidence of Mr Layman, who considers that the area of the room is over 18m² once the passageway to the room is included in the room area. That passageway also forms part of the kitchen area. The Council also relies on its cross-examination of Mr Mead, in which Mr Mead conceded that the room could physically fit a second bed.
I do not accept that the proposed development has the “capacity to accommodate 20 or more lodgers”. The capacity of the boarding house is restricted to that sought in the development application, which complies with cl 30(1)(c) and cl 29(2)(f), and will be legally enforceable by a condition of the development consent. That is, the boarding house will not have capacity to accommodate 20 or more lodgers, because any consent that is granted will be restricted to development consent for 19 lodgers. This is clearly outlined in proposed Condition 3C of Ms Hu’s proposed conditions of consent (Ex L), as well as in the Plan of Management. This is consistent with the decision of the Court in Vujicic v Northern Beaches Council [2019] NSWLEC 1349 at [52]-[54], in which Commissioner Bish determined that the conditions of consent and the Plan of Management were adequate to limit the capacity of the boarding room to 14 lodgers.
There is no basis for a requirement to determine capacity by considering whether a double bed could fit into the room, or by considering the number of beds that could squeeze into the room, contrary to its legal capacity as set by what the development consent will authorise.
I note also that, if one were to calculate the gross floor area of G.05 for the purpose of the “must not refuse” criteria for accommodation size in cl 29(2)(f) or for the purpose of cl 30(1)(a), the size of the room must exclude any area used for the purposes of a private kitchen, which excludes the passageway from the calculation. This is consistent with the decision of the Court in Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031, and means that the room size of G.05 is 14.6m². The area of 14.6m², being of a size greater than the “must not refuse” accommodation size for a single boarding room, and less than that for a double room, is in my view appropriate for a single boarding room. Although the “must not refuse” criteria is not determinative of capacity for the purpose of cl 30(1)(e), it is a useful guide to an appropriate room size for a single room.
For all of these reasons, the boarding room does not have the capacity to accommodate 20 or more lodgers, and there is therefore no requirement to provide a boarding room for a boarding house manager.

Amenity impacts on the neighbours

The Council contends that the proposed side setbacks and proposed landscaping on the eastern boundary are not sufficient to mitigate the loss of privacy and noise intrusion for residents of 18 Ramsay Street.
With respect to the noise impacts, Mr Layman and Mr Mead agree that the noise impacts are capable of being adequately managed through the Plan of Management.
With respect to the privacy impacts, Mr Layman considers that this would be resolved by the deletion of balconies to room G.01, L1.01 and L1.03. His evidence is as follows (Ex 4 p 11):

“The balcony to Room G.01 is only set back 900mm from the side boundary. The more northerly pair on the top level are set back only approximately 2.5m from the side boundary, with a total separation distance from the Residential Flat Building at 18 Ramsay Street of 5.37m.”

Mr Mead instead considers that the balconies provide an amenity benefit to the occupants of those rooms and ought not be deleted. He opines that privacy can instead be addressed with appropriate privacy screening. He points out that the balconies face the side elevation of the adjoining residential flat building, which is largely a blank wall, containing 3 windows.
Mr Layman agrees that if the balconies are retained, the northern two-thirds of the balconies to G.01 and L.01 should incorporate privacy screens that direct view lines away from the two windows of the adjacent building, and that similar screening should be in place on the southern end of the balcony to L1.03. These screens have now been incorporated in the plans that are currently before the Court.
I accept that the visual privacy impact is adequately mitigated by the proposed screens. From the site inspection, I accept the evidence of Mr Mead that the wall of the adjoining development is largely a blank wall. It also appears that the rooms behind the windows are not habitable space, although their precise use is unknown. Nevertheless, in light of the small number of windows and the amenity afforded by the proposed balconies, it is sufficient for the privacy of adjoining neighbours to be protected by privacy screens. The deletion of the balconies is not required.
There are no other amenity issues raised by the Council that would warrant refusal of the development application.

Public interest

The Council also raised a contention that the proposed development is not in the public interest, largely because of the other contentions and on the basis that there is a “broader public interest of providing development that meets the requirements of design quality, is compliant with the controls and minimises impacts to neighbouring developments” (Ex 10 p 21).
Contrary to the premise upon which this contention is based, the proposed development is largely compliant with the built form controls that apply to the site, and, as set out above, its design is compatible with the character of the local area. The proposed development is within an accessible area as defined by the SEPP ARH, and complies with each of the criteria set out in cl 29(2) such that it cannot be refused on the basis of the building height, landscaped area, solar access, private open space, adequacy of the car parking, and accommodation size. Similarly, it complies with the non-discretionary development standards that apply pursuant to cl 30 of the SEPP ARH. Further, there are no adverse amenity impacts that have been identified that warrant refusal of the application. Nor do any of the issues raised by the objectors warrant its refusal.

Accordingly, if the public interest is the provision of development that meets the requirements of the controls and minimises its impacts, as described the Council, the proposed development cannot be said to be against the public interest. Similarly, it will not create an undesirable precedent.

The outcome of the appeal

For all of the above reasons, I consider that the proposed development is an appropriate application of the SEPP ARH and an appropriate response to the site’s constraints, the applicable controls, and its location and context. Its built form provides an appropriate transition from the dwelling houses to the west to the residential flat buildings within the R3 zone that adjoins the site to the east. Given that the other planning controls of the SEPP ARH and the WLEP 2011 are met, there is no basis to refuse the development application and it should be granted accordingly subject to appropriate conditions of development consent.
The applicant tendered its proposed conditions of consent. They contain tracked changes, and those changes reflect the evidence of the experts in the proceedings. The Council did not put any case forward as to the appropriateness or otherwise of those conditions. Nor did the Council tender its own version of proposed conditions of consent. It had ample opportunity to do so at the hearing. Indeed, the Council did not file any conditions of consent in the proceedings, notwithstanding a direction of the Assistant Registrar (made on 4 May 2020) and a further direction made on 25 September 2020 following the adjournment of the hearing.
The conditions of consent as proposed by the applicant are appropriate, and, as they are not contradicted in any way, development consent ought to be granted subject to those conditions.
The Court orders that:

The appeal is upheld.

Development consent is granted for the demolition of existing structures and the construction of a 10 room, three-storey boarding house for 19 residents, at 22 Ramsay Street, Collaroy, subject to the conditions in Annexure A.

The exhibits are returned, except for Exhibits A, D, E, G, J, K and 10.

……………………..

J Gray

Commissioner of the Court

Annexure A (276920, pdf)

**********

Decision last updated: 30 October 2020

Medium Neutral Citation:	Hu v Northern Beaches Council [2020] NSWLEC 1525
Hearing dates:	27-28 August 2020 and 16 October 2020
Date of orders:	30 October 2020
Decision date:	30 October 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for the demolition of existing structures and the construction of a 10 room, three-storey boarding house for 19 residents, at 22 Ramsay Street, Collaroy, subject to the conditions in Annexure A. (3) The exhibits are returned, except for Exhibits A, D, E, G, J, K and 10.
Catchwords:	APPEAL – development application – boarding house – whether in an accessible area – whether bus stop with services in only one direction sufficient – relevance of the gradient of the public footpath – whether design of development compatible with character of the local area – whether manager’s accommodation required – whether there is adequate information on quality of excavated material – whether balconies should be deleted
Legislation Cited:	Disability Discrimination Act 1992 (Cth) Environmental Planning and Assessment Act 1979 Interpretation Act 1987 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Warringah Local Environmental Plan 2011
Cases Cited:	ACN 603 347 834 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1261 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) [2018] NSWLEC 204 Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171 Certain Lloyd’s Underwriters v Cross [2012] HCA 56 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Touma v Liverpool City Council [2018] NSWLEC 1635 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 Vujicic v Northern Beaches Council [2019] NSWLEC 1349
Texts Cited:	Building Code of Australia Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020) Land and Environment Court of New South Wales Practice Note – Class 1 Development Appeals Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Jane Hu (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: J Smith (Applicant) J Lazarus SC (Respondent) Solicitors: Marsdens Law Group (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/6991
Publication restriction:	No