Komplete Constructions Pty Ltd v Ashfield Council

[2015] NSWLEC 1390

Land and Environment Court

New South Wales

Medium Neutral Citation:	Komplete Constructions Pty Ltd v Ashfield Council [2015] NSWLEC 1390
Hearing dates:	14 July 2015
Date of orders:	15 July 2015
Decision date:	15 July 2015
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is upheld; 2. The development application (DA10.2014.328.1) to construct a boarding house at 35 Gower Street, Summer Hill, is approved, subject to the conditions in Annexure A; 3. The exhibits, except Exhibits 1, A, B, and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION – boarding house. Impact on view.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Ashfield Local Environmental Plan 2013
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140.
Category:	Principal judgment
Parties:	Komplete Constructions Pty Ltd (Applicant) Ashfield Council (Respondent)
Representation:	Solicitors: Mr G McKee of McKees Legal Solutions (Applicant) Mr P Jackson of Pikes & Verekers Lawyers (Respondent)
File Number(s):	10050 of 2015

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (DA10.2014.328.1) by Ashfield Council (council) to construct a boarding house at 35 Gower Street, Summer Hill (site).

2. The only contention is whether the proposal will result in unacceptable view loss to 16/28 Gower Street.

Site and locality

3. The site is located on the eastern side of Gower Street near its intersection with Liverpool Road. It is rectangular in shape with an area of 704sqm. It is developed with a two storey boarding house that is licensed for 10 beds.

4. To the south, the site adjoins a vacant lot that is used for car parking (33 Gower Street). Adjoining the site to the north is the Wesley Home and Carer Support Service (44 Liverpool Road). A detached dwelling is located at the rear of the site (42 Liverpool Road). To the west, on the opposite side of Gower Street, is a recent four storey residential flat building (28 Gower Street), which is constructed on land occupied by the former Grosvenor Hospital and outbuildings (56 Liverpool Road).

5. Surrounding development is primarily residential with a mixture of detached dwellings, residential flat buildings and multi dwelling housing.

Background and proposal

6. The development application, as amended, seeks consent to demolish the existing structures and construct a four storey boarding house above a basement with parking for nine cars, including one disabled space, five motor cycle and five bike parking spaces. The development includes 24 boarding rooms for a total of 48 beds (including two adaptable rooms). Each room has kitchen and laundry facilities and a private courtyard or balcony. There is a communal room with a communal courtyard at ground level. The fourth storey is set back from the floors below with a flat roof.

Statutory framework

7. The development relies on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Part 2, Division 3 of SEPP ARH - Boarding houses applies to land in the R3 zone (cl 26) and permits boarding houses with consent (cl 28). Clause 29 contains standards that cannot be used to refuse consent, including floor space ratio (FSR), building height, landscaped area, solar access, private open space, parking and accommodation size.

8. Clause 30(1) of SEPP ARH provides standards for boarding houses, including requirements for communal living room, size and occupancy of a boarding room, provision of bicycle and motorcycle parking.

9. Clause 30A requires consideration of whether the design of the development is compatible with the character of the local area.

10. The site is zoned R3 Medium Density Residential under the Ashfield Local Environmental Plan 2013 (LEP) and the development is permissible with consent. Land in the vicinity of the site is also zoned R3. The objectives of the zone, which under cl 2.3(2), the consent authority must have regard to are:

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

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

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

11. Clause 4.3 of the LEP permits a maximum height of 12.5m. The building complies with the height limit, however council submits that the proposal should be amended to delete part of the fourth storey as it results in unacceptable view loss to 16/28 Gower Street, which is discussed later.

12. The maximum permissible floor space ratio (FSR) under cl 4.4 of the LEP is 0.7:1. The development proposes a FSR of 1.2:1, which utilises the 0.5:1 “bonus” available under cl 29(1)(c)(i) of SEPP ARH.

13. The site is in the vicinity of two heritage items (42 and 56 Liverpool Road) and cl 5.10(5) requires a heritage management document to assess the effect of proposal on the significance of these items.

14. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the development. Clause 30 requires consideration of the design quality when evaluated in accordance with the design quality principles in Part 2 (cl 30(2)(b)), and the Residential Flat Design Code (RFDC) (cl 30(2)(c)).

15. Other than the view loss resulting from the height of the proposal, the parties agree that it meets the requirements of SEPP ARH, the LEP and SEPP 65.

16. The parties accept that Ashfield Interim Development Policy 2013 is relevant. Part C18-Boarding Houses (Part C18) provides objectives and controls for boarding houses. The objectives of s 2.3-Building form and appearance include that developments:

Must not adversely impact on adjoining properties through loss of privacy, overshadowing, noise and view loss.

17. Section 2.3(b) of Part C18 requires consideration of the design principles in Part C5-Multi Unit Housing in Residential Flat Zones (Part C5), which include requirements for Siting, building height and solar access (s 5) and Privacy, outlook and views(s 6). Section 6.8 provides:

Where distant views are available from neighbouring properties, these should be maintained wherever possible, in keeping with principles of view sharing.

Evidence

18. The Court visited the site and heard evidence from the owner of 16/28 Gower Street. The main concern of the objector was that the height of the development would remove his “iconic view of the Sydney Skyline” which is the reason he chose the apartment and he understood would be maintained due to height restrictions.

19. The Court heard expert planning evidence from Mr A Minto, for the applicant, and Mr A Bas, for the council.

20. As a result of a conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) and amendments to the plans, the contentions and issues between the experts have generally been resolved, other than view loss. The experts agree that 16/28 Gower Street currently has “access to a panorama of view/outlook which extends 180 degrees across the frontage of that unit and includes views to Chatswood and its surrounds, the Sydney city skyline and part of Anzac Bridge. The view is partly interrupted by existing street trees. The views to Chatswood and district views to the east will not be affected by the proposal but the views of the City skyline and the Anzac Bridge (City view) will be lost.

21. Mr Minto and Mr Bas accessed the view loss against the principles established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The experts generally agree on the views to be affected, although they disagree on the individual importance of the City view as part of the whole panorama (Step 1). They also agree that the City view is principally available from the north east part of the balcony (Step 2). They generally agree on the extent of impact. Mr Minto acknowledges that all of the City view will be removed by the upper level of the proposal but the overall view panorama will be maintained, whereas Mr Bas considers the view loss to be devastating (Step 3). The key disagreement between Mr Minto and Mr Bas is the reasonableness of the proposal causing the view impact (Step 4). This disagreement centred on whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the view of the neighbour.

22. Mr Bas acknowledged that the proposal complies with the height control in the LEP and SEPP ARH but considered that a more skilful design could reduce the view loss as the four boarding rooms on the upper level and their associated terraces were excessive in size. He suggested proposed changes which would involve the removal of two of the four units on the upper level, relocating the lift and reducing the setbacks thereby placing the upper level closer to the northern part of the building and closer to the street. Mr Bas considered that the two deleted units could be relocated to the ground floor by relocating the mechanical plant to the basement and redesigning the communal area. In his opinion, these changes would maintain the development potential and amenity of the proposal and would not adversely impact on the streetscape.

23. In Mr Minto’s opinion, the view loss is reasonable as the proposal complies with the numerical requirements of the height control in the LEP and also meets the objectives of the control. Furthermore, cl 29(2)(a) of SEPP ARH provides that consent cannot be refused on the basis of height if the proposal complies with the height control in the LEP. In Mr Minto’s opinion, the extent of changes suggested by Mr Bas was unreasonable and need to be balanced against the extent of impact on the affected unit. The changes would result in an “unbalanced“ building which would impact on the streetscape and would reduce the amenity of the development, particularly the suggested changes to the communal area, and he was unsure whether changes to the basement and lift location were feasible without significant redesign of the building.

Findings

24. The planning principles in Tenacity provide:

25   The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26   The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27   The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28   The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29   The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

25. In applying these principles to the proposed development, I accept Mr Minto’s evidence that acceptable view sharing is achieved. The proposal has distant views, including City views which are some 6.5km away. Although the City views are important to the owner of the affected unit, they are not iconic or “magnificent” views due to their distance, the extent of foreground and the partial obstruction by street trees. The City view is also available only from a limited area of the balcony and other distant views are available from other parts of the balcony. While the City view will be removed, the other distant views will be maintained. Importantly, the view loss results from a complying building and it has not been demonstrated that a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the view of the neighbour.

26. The changes suggested by Mr Bas would require a significant redesign of the building, including relocating the lift and two units to other areas. It is not clear whether the suggested changes are feasible but they would reduce the amenity of the development, particularly the common room. Relocating the upper level to the north west of the building, closer to adjoining development and the street frontage, would result in it being less recessive and asymmetrical and would reduce the amenity of the streetscape and the proposal’s compatibility with the area.

27. Clause 4.3(1) of the LEP provides the following objectives for the height standard:

(1) The objectives of this clause are as follows:

(a) to achieve high quality built form for all buildings,

(b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes,

(c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings,

(d) to maintain satisfactory solar access to existing buildings and public areas.

28. The proposal complies with these objectives, whereas, it is questionable whether a proposal with the changes suggested by Mr Bas would achieve a high quality built form. Furthermore, Clause 29(2)(a) of SEPP ARH provides:

(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,

29. There would need to be material impacts from the building height for the development to be refused or amended on this basis. For the reasons discussed above, this is not the case, and the view loss is reasonable given that it results from a complying development and a skilful design.

30. The objectives of the height standard in the LEP and the requirements of SEPP ARH do not refer to view loss. However, the parties agree that this is a relevant consideration and accepted that weight should be given to the Interim Development Policy. That being the case, I do not accept that the loss of part of a distant view to one unit would should necessitate the reduction in height of a complying development, particularly, given the nature of the view and that it could be lost through development of other sites within the wider R3 zone or through further growth of the street trees or other trees in the area. The proposal achieves appropriate view sharing and this would not be a reason to refuse the application.

Conditions

31. The conditions are agreed between the parties with the exception of Condition B1 which requires the deletion of two units. For the reasons discussed above, this condition is not reasonable and is therefore deleted.

32. The applicant also objected to the deferred commencement condition requiring an easement for stormwater across 44 Liverpool Street to be registered prior to the consent being operative. The applicant submits that it has entered into a deed for the easement with the owner of 44 Liverpool Street and this provides adequate certainty for the consent to be granted, subject to a condition that the easement be registered prior to the Construction Certificate.

33. The council submits that the deed is between two parties and can be changed. Until the easement is registered it is not certain and the application should not be approved in the absence of certainty that the stormwater can be directed to Liverpool Road.

34. I accept council’s submission. I also note that the deed provides a 0.9m easement, whereas the deferred commencement condition requires a greater width. It is appropriate that these matters be resolved prior to the consent being operative and it is not unreasonable that the applicant provide proof of the registration of an agreed easement to ensure that the stormwater arrangements, upon which the consent depends, can be implemented. The deferred commencement condition is therefore retained.

Orders

1. The appeal is upheld;

2. The development application (DA10.2014.328.1) to construct a boarding house at 35 Gower Street, Summer Hill, is approved, subject to the conditions in Annexure A;

3. The exhibits, except Exhibits 1, A, B, and C, are returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 25 September 2015