Jarvis Brooks Investments Pty Ltd v Northern Beaches Council

[2016] NSWLEC 1426

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jarvis Brooks Investments Pty Ltd v Northern Beaches Council [2016] NSWLEC 1426
Hearing dates:	27 July 2016
Date of orders:	20 September 2016
Decision date:	20 September 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1.   The appeal is upheld. 2.   The Applicant is granted leave to amend development application DA2015/0692 in accordance with the plans referred to in condition 3 of Annexure “A”. 3. The Applicant is to pay the Respondent’s costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 in the sum of $2,000 within 14 days. 4.   Development application DA2015/0692 for demolition of existing works and construction of a boarding house at 31 Forest Way, Frenchs Forest NSW is approved subject to conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION: consent orders; boarding house; resident objections; local character; parking
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919 State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Jarvis Brooks Investment Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Mr Peter Rigg (Applicant) Mr Stephen Patterson (Respondent) Solicitors: Peter R Rigg (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	155503 of 2016
Publication restriction:	No

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Judgment

1. COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (the Act), comes before the Court for consent orders in relation to the refusal by then Warringah (now Northern Beaches) Council (the Council) of Development Application DA- DA2015/0692 (the application) for the demolition of an existing dwelling house and construction of a new two storey boarding house at 31 Forest Way, Frenchs Forest (the site).

2. The application was lodged in July 2015 and assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Affordable Rental Housing SEPP or the SEPP).

3. Prior to determining the application, the Council advertised the proposal. Four submissions of objection were lodged in response. Issues raised in the submissions were, in summary:

- parking

- traffic

- insufficient information

- change in the residential character of the area

- privacy.

4. The Council refused the application on the basis that the design of the development was not compatible with the character of the local area, contrary to the provisions of Clause 30A of the SEPP, and was not in the public interest having regard to the issues raised in submissions.

5. Specifically the concern was that the bulk and scale of the proposed boarding house was not typical of the dwelling houses in the area particularly the side elevation when viewed from the north where the property adjoins a public park (Wareham Reserve) which was also used as a public thoroughfare from Wareham Crescent to Forest Way.

6. Whilst there was no objection from the Council to the 2 storey nature of the development or the materials of construction, and acknowledgment that methods had been employed by the Applicant to try and reduce the building’s visual dominance, there was a concern that there were no substantial breaks, separated by landscaping, in the northern (side) elevation. This resulted in a large single structure with a visual bulk significantly greater than other buildings in the vicinity of the site. Thus, the Council argued, it presented more as medium density rather than single dwelling development.

7. The Council accepted that the development had been adequately designed to mitigate amenity impacts on adjoining dwellings. A reserve adjoined to one side boundary and there was a setback to the dwelling on the other side boundary greater than the existing dwelling on the site and of at least 4m. The development also met the compliance requirements of the Warringah Development Control Plan 2011 (the DCP) for side and rear setbacks and overshadowing, had no adverse view impacts, and was under the LEP maximum permissible height of 8.5m.

8. The appeal was subject to mandatory conciliation in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference phase, the conference was terminated pursuant to s34(4) of the LEC Act. The proposal was amended following the conciliation conference and leave was granted by the Court for the applicant to rely on amended plans.

9. The amended proposal comprised 23 boarding rooms, a manager’s office, communal living room, communal open space, and parking for 6 cars, 5 motorcycles and 5 bicycles which accords with the required parking provision under the SEPP. Gated pedestrian access is provided to the adjoining reserve.

10. Prior to the hearing, the parties agreed to enter into consent orders based on the amendments made to the proposal and the provision of additional information to address information inadequacies identified by the Council.

11. The amendments to the proposal can be summarised as follows:

• The setbacks on the northern elevation (to Wareham Reserve) were varied; being between 2m, 2.3m and 3.168m for the ground floor and 1.77m, 2.48m and 3.168m for the first floor;

• Variation in external facade materials on the northern elevation fronting Wareham Reserve;

• Modifications to the first floor windows on the northern elevation for 6 of the boarding rooms to reduce the size of the openings and replace balconies with windows;

• Additional windows on the western/street elevation (to Forest Way);

• An additional window on the eastern elevation of the communal living room to improve solar access; and

• A lower flatter hipped roof.

12. During the hearing, I noted that, although a manager’s office and manager’s parking space were proposed, no manager’s boarding room or onsite dwelling and associated private open space were shown on the plans as required by the SEPP at Clauses 30(1)(e) and 29(2)(d)(ii). The Applicant advised that this was an oversight as it was always intended to designate one of the boarding rooms for use by the manager. This appears to be the case as 24 boarding rooms were still shown on the amended plans as opposed to the 23 referred to in the amended application. Consequently, former boarding room 8 on the ground floor adjoining the manager’s office was designated as the manager’s dwelling, the required dimensioned area of adjoining private open space was provided, and the boarding rooms totalled 23. An amended ground floor plan showing this (DA17G) was filed with the Court on September 15, 2016 and the agreed conditions of consent were amended to reflect this modification.

13. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraph 36) provides relevantly:

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

i)    the content of the proposed orders (including the proposed conditions of consent);

ii)    the date of the hearing by the Court to consider making the proposed consent orders; and

iii)   the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

14. The Council furnished the Court with documentation confirming that the objectors had received notification of the proposed consent orders and were provided the opportunity to be heard at the hearing as required by the Practice Note.

15. The consent orders’ hearing was held on 27 July, 2016.

Objector Concerns

16. The hearing commenced on site where the Court heard from Mr McClenehan, a resident of Wareham Crescent which is to the rear of the site. A view of the site from Wareham Reserve and of Wareham Crescent was undertaken. Mr McClenehan had previously lodged one of the four written objections to the application. His objection to the proposal can be summarised as follows:

1. Loss of privacy to, and adverse outlook from, his rear yard.

2. Impact on parking in Wareham Crescent as the SEPP requirements will not meet the demand. Wareham Crescent is too narrow for parking on both sides and passage for garbage trucks and provides a safe environment for local children. The street is already well used by residents of Forest Way for onstreet parking given Forest Way is a busy road and Wareham Reserve enables pedestrian thoroughfare between the two streets.

3. The development was significantly larger than what could be expected of a 2 storey dwelling in the area and therefore was not in character with the surrounding area. The development would be highly visible from Wareham Reserve in particular and did not appropriately address this public reserve and thoroughfare being too dense and too bulky in scale.

17. In his earlier written submission, Mr McClenehan had raised his understanding that the site was the subject of a restrictive covenant under section 88 of the Conveyancing Act 1919 prohibiting its use for anything other than a single dwelling house. The Council subsequently provided documentation indicating that this restrictive covenant had been removed. Whilst accepting that this was now the case, Mr McClennan was nevertheless concerned that no public consultation had taken place prior to the removal of the restriction.

18. No other objectors provided evidence at the hearing. However, the other 3 objectors who has made written submissions to the application raised concerns in terms of the number of occupants, the size of boarding rooms, amenity impacts from noise and behaviour, traffic, inadequate parking resulting in potential increased parking in Wareham Crescent (including during construction), and precedent for other boarding houses in the area.

19. No submissions were received from the immediately adjacent single residential property to the south.

Site and Planning Context

20. The site is described as Lot 8 in DP 23064, is regular in shape with an area of 975.5m², a frontage of 21m to Forest Way and a depth of 45.72m.

21. It is presently occupied by a single storey dwelling, outbuilding and shed.

22. The site is located within a low density residential area and surrounding development consists of single residential dwellings. Wareham Reserve adjoins on the site’s northern (side) boundary with single dwellings on the southern (side) boundary and at the rear fronting Wareham Crescent.

Relevant Planning Controls

23. The application is required to be assessed under the provisions of the Affordable Rental Housing SEPP. A boarding house is permissible in the Residential R2 zone in which the site is located under the Warringah Local Environmental Plan 2011 (the LEP) providing the site is within an accessible area as defined in the SEPP and is within a 400m walking distance of land within a Local Centre, Mixed Use or similar zone.

24. The parties confirmed that the site is within an accessible area and is also within 400m of land which is appropriately commercially zoned.

25. Under the SEPP, development consent cannot be refused under clause 29 (1) on the grounds of density or scale if it complies with specified floor space ratio (FSR) controls in the LEP. However, the LEP does not contain any FSR controls which would relevantly apply.

26. Development consent also cannot be refused if the development complies with criteria specified in the SEPP in terms of building height, landscaped area, solar access, private open space, onsite parking provision, and minimum room sizes. Even if compliance to any of these standards is not met, the application can still be approved. In this instance, however, all of the specified standards have been met other than landscaped area.

27. Clause 29 (2)(b) of the SEPP states that a consent authority must not refuse consent to development if the landscaped treatment of the front setback is compatible with the streetscape in which the building is located. The Council initially raised a concern that the platform lift and stairs accessing the car park at the front of the site were within the required DCP front setback area precluding landscaping in the location and proposing infrastructure in the front setback which was non-compliant with the DCP and incompatible with the streetscape.

28. However it was acknowledged by the Council that the streetscape comprising Forest Way, a busy arterial road, was variable in terms of residential character and landscaping, and that front landscaped treatment was a condition on which development could not be refused if it complied rather than precluding development which did not comply.

29. Ultimately the Council was satisfied that this aspect of the development represented a minor DCP non-compliance which did not warrant refusal, and that improved treatment to the front elevation assisted in overcoming the concern about the lack of landscaping where the stairs and platform were.

30. Of relevance, the proposal as amended and supported by the parties met the following requirements of the SEPP:

1. A communal living area is provided

2. None of the boarding rooms exceeds 25m² or will be occupied by more than 2 lodgers

3. Adequate bathroom and kitchen facilities are provided

4. The required car, bicycle and motorcycle parking is provided

5. A boarding house manager’s dwelling and associated private open space is provided as the boarding house has more than 20 rooms.

31. However, under clause 30A of the SEPP, the Court, cannot consent to the development of a boarding house under the SEPP “unless it has taken into consideration whether the design of the development is compatible with the character of the local area”.

32. Purported non-compliance with clause 30A of the SEPP was the primary ground on which the application had been refused. Objectors had also raised a concern that the proposal was out of character with the local area.

33. Specifically, the Council had refused the application on the basis that the existing character of the surrounding local area comprised detached dwelling houses on single allotments. The boarding house as presented in the development application was not considered to be compatible with this local character having a bulk and scale not typical of a dwelling house and more typical of multi-dwelling housing or a residential flat building. Reference was made to non-compliances with the Built Form Controls of the DCP in this regard.

34. In its original form, the boarding house was considered by the Council to present as a large building with long, relatively unarticulated wall lengths, the design of which varied substantially from the single dwelling house character of the locality, particularly when viewed from its side boundaries, The use of repeated building elements and small balconies for the rooms on the northern elevation further added to the appearance of a development more typical of higher density housing than is found in the area.

35. The Council also considered that the application as lodged should be refused having regard to the matters raised in submissions but only to the extent that these submissions were consistent with the Council’s local character concern as the other issues raised by objectors were not considered to be grounds for refusal by the Council.

36. In its amended form, the Council was satisfied that the design changes were such that the Council’s issues had been addressed.

Expert evidence

37. Expert evidence was provided to the Court from Mr England, a planner for the Council and Mr Rohan, a planner for the Applicant.

38. The experts agreed that the proposal as amended met the objectives and provisions of the SEPP, and of Council’s LEP and DCP to the extent that they applied.

39. The Council advised the Court that the amendments undertaken to the application focused on the northern (side) elevation adjoining Wareham Reserve and had been designed to improve the relationship of the development with this adjoining area of public open space.

40. With the changes undertaken, the Council considered that the proposal will now have a character more consistent with the detached dwelling houses that typify the character of the local area.

41. The design changes to the northern elevation consist of modifications to the first floor windows, replacement of small balconies with windows, varied setbacks, contrasting facade materials, and lowered roof form. These design amendments were considered by Mr England to have the effect of producing two broad improvements, being:

1. greater relationship with the common vernacular of dwelling houses in the immediate area; and

2. an overall reduction in the bulk and scale of the proposed building.

42. The Council considered the proposal as amended to be generally consistent with the Built Form Controls of the DCP and of a character consistent with detached dwellings houses in the area. Therefore the amended proposal had responded adequately to the reasons for refusal. Accordingly, the Council considered the proposal, as amended, to be acceptable.

Responding to Objector Concerns

Character of Local Area

43. The parties, in seeking consent orders, had indicated why they considered the amended development was now in keeping with the local character.

44. In evidence, Mr England re-iterated that the proposal now contained increased and improved landscaping, and greater side and rear setbacks than the DCP required, and in a staggered form to break up bulk and scale.

45. Both planning experts noted that the housing stock along Forest Way was old and typical of development along arterial roads but had the potential to be redeveloped to 2 storeys and to the same or greater height and volume as the boarding house under the LEP with any such redevelopment reflecting the desired future local character. Furthermore, if a large house was proposed for the site instead, there would be less ability for the Council to impose controls as to how it presented to Wareham Reserve or the streetscape.

46. In terms of the presentation to Wareham Reserve, a proposed condition of consent agreed by the parties requires the planting of at least 5 trees capable of attaining a minimum height of 6m in the garden bed between the building and the reserve boundary. The staggered setback of the building to this boundary also facilitates where these trees can be planted to assist in breaking up and screening the northern elevation and minimising the impacts of the development on the reserve.

47. Notwithstanding the proposed landscaped setback to the northern elevation, Mr England also noted that the presentation of rooms with windows to the reserve provided the opportunity for passive surveillance of Wareham Reserve.

48. Having regard to the advice of the experts, the benefit of an onsite view from Wareham Reserve, Forest Way and Wareham Crescent, and taking on board the issues raised by the objectors, I am satisfied that the proposed development as amended reasonably meets the local character compatibility test of the SEPP at Clause 30A.

49. There is no consistency of character of residential development fronting Forest Way which is a busy arterial road with variable quality, style and size of dwellings fronting it. The only substantive issue for both the Council (initially) and the objectors was the presentation to Wareham Reserve. Mr McClennan accepted that the visual impact from the rear of properties fronting Wareham Crescent, including his own, was not a significant issue.

43. In terms of the impact when viewed from Wareham Reserve I am satisfied that the amended plans and overall proposal will not be incompatible with the character of the local area. It is the case that the full side elevation of the boarding house will be visible from the reserve as would the side elevation of any 2 storey dwelling house built on the site. Whilst the boarding house may be larger than any such dwelling, this is not necessarily the case and, as Mr England, noted, there would be less ability for Council to control appearance, amount or size of windows, landscaping, setbacks or bulk for a compliant dwelling which could be up to 8.5m in height. The proposed boarding house is well under this height at all elevations and in excess of 1m below this height to the northern elevation.

44. I also agree that there could be passive surveillance benefits for the adjoining reserve associated with the development in the form now proposed. With the removal of balconies to the northern elevation and their replacement with windows, these benefits will exist without the associated noise or potential overlooking concerns associated with open balconies. Furthermore, the setback of up to in excess of 3m for both levels allows for generous landscaping including of substantial trees as required by the approval to soften the bulk and scale of the building and improve the interface between the development and the reserve.

45. For this reason I agree with the parties that incompatibility with the character of the local area is no longer a ground for refusal of the application.

Parking supply and within Wareham Crescent

53. No expert evidence was provided to the Court in terms of parking and access requirements other than by reference to the provisions of the SEPP and to the Council officer’s assessment report on the original application. In this regard, the Council’s engineer raised no issue with the proposed development including in terms of access arrangements and parking supply. The RMS has also raised no issues with the development subject to conditions.

54. The Council advised the Court that the area is well serviced by public transport with a bus stop immediately adjacent to the site on Forest Way. It was also agreed that the site meets the accessible area criteria under the SEPP.

55. The Applicant argued that there was nothing particularly unusual about Wareham Crescent as a residential street which would warrant refusal of the application.

56. Whilst Mr England agreed that Wareham Crescent may be narrower than other surrounding residential streets, he considered that it was still capable of providing on street parking on both sides although a passing vehicle may need to travel at low speeds.

57. In terms of access by garbage trucks, the parties argued this was no different from the existing arrangement where local residents could already park on both sides of Wareham Crescent on garbage collection day. It was also argued by the Council that there was capacity for additional on street parking in the area even though there should be a presumption that the parking provided as required by the SEPP adequately provides for the amount of parking required by the development.

58. It was noted that there was no vehicular or pedestrian access from the boarding house directly to Wareham Crescent although it was accepted that potentially residents of or visitors to the boarding house may park in Wareham Crescent. However, Mr England advised the Court that it was not a particularly busy street with a parking problem relative to other streets in the locality closer to commercial areas.

59. I have already noted that consent cannot be refused under the SEPP if the amount of parking required by the SEPP is provided as is the case in this application. Compliance is also met in terms of the required provision of motorcycle and bicycle parking and accessibility to public transport.

60. Therefore, whilst the objectors may still consider that the application provides inadequate parking, and that there is a high demand for on street parking already in Wareham Crescent, the amount of parking provided onsite in the application complies with what the planning controls require and therefore cannot be a basis for refusal of the application.

Other issues raised by objectors

61. From a view of the site and surrounds, and given the generous extent and landscaping of the rear and southern setbacks which are in excess of 7.4m and 4m respectively, I have formed the view that there will be no overlooking or privacy impacts on adjoining dwellings to the rear or south of the site associated with the proposed boarding house. No upper floor balconies or windows to the rear are proposed.

62. I am also of the view that there will be no unreasonable impacts to the outlook from adjoining properties including those fronting Wareham Crescent to the rear of the site. As well as the generous rear setback, a number of existing trees in the rear of the site will be retained and supplemented, and I note that the overall height of the building is less than the 8.5m maximum allowed under the LEP.

63. Whilst there will likely be more occupants than may be expected in a similar sized dwelling house this is not a relevant consideration under the SEPP.

64. A Plan of Management is required by the consent to address any issues associated with the operation of the boarding house, and the consent also contains conditions restricting noise levels and hours of construction with no demolition permitted on weekends and no construction works on Sundays or prior to 7am on weekdays or 8am on Saturdays.

65. Finally, no precedent issue arises. Compliant boarding houses are already permissible in the Residential R2 zone and this application is not seeking variations from planning controls or a form of development which would create an undesirable precedent for other boarding house applications in the zone.

Conclusion

66. Ultimately, and notwithstanding the concerns raised by objectors, I find that there are no substantive grounds on which the Court can refuse consent to this application. It complies with all of the required development standards of the SEPP.

67. In terms of landscaped treatment of the front setback, the SEPP only requires that the development not be refused if it is compatible with the streetscape in which the building is located. Given that streetscape is Forest Way, which is not homogenous in character, I find the proposed treatment of the front landscape area to be appropriate in the circumstances, not incompatible with the variety of landscaped setback treatments along Forest Way, and therefore not a ground for refusal. In any event, this treatment is a ground for which consent cannot be refused if compliance is met, rather than a ground for refusal. I therefore agree with the Council that the proposed works in the front setback area to service the car park in the context of the Forest Way streetscape are insignificant and not a ground for refusal.

68. The boarding house is well below the maximum height permitted by the LEP and the setbacks to all boundaries are in excess of what is required by the DCP reducing the impact of the building and the potential for overlooking and allowing for substantial landscaping. There are also no adverse amenity impacts on any adjoining dwellings or for future residents of the development.

69. In my view, the relevant objections raised by neighbours regarding the proposal have been considered by the parties and are appropriately addressed by the amendments made to the proposal to the extent that the relevant planning instruments require.

70. In this regard, I accept that the amendments to the proposal have addressed Council's original contentions of concern in relation to the proposal and I am also satisfied that the proposal is consistent with the objectives of the SEPP and with the LEP and DCP to the extent that these instruments apply.

71. In considering the amended plans and documents and agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and appropriate to grant consent to the proposal, having regard to the whole of the circumstances.

Orders

72. The orders of the Court are:

1. The appeal is upheld. 

2. The Applicant is granted leave to amend development application DA2015/0692 in accordance with the plans referred to in condition 3 of Annexure “A”.

3. The Applicant is to pay the Respondent’s costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 in the sum of $2,000 within 14 days.

4. Development application DA2015/0692 for demolition of existing works and construction of a boarding house at 31 Forest Way, Frenchs Forest NSW is approved subject to conditions set out in Annexure “A”.

________________

Jenny Smithson

Commissioner

155503.16 - Annexure A (100 KB, pdf)

Decision last updated: 10 May 2018