Koutsos v Manly Council

[2016] NSWLEC 1121

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Koutsos & Anor v Manly Council [2016] NSWLEC 1121
Hearing dates:	9-10 March 2016
Date of orders:	06 April 2016
Decision date:	06 April 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: boarding house, parking, floor space ratio, height, impact on amenity, overshadowing, density, setbacks, whether compatible with the character of the locality.
Legislation Cited:	Manly Local Environmental Plan 2013; State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Manly Development Control Plan 2013
Category:	Principal judgment
Parties:	Cecil Koutsos (First Applicant) Isabel Koutsos (Second Applicant)   Manly Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicants)   Solicitors: Mr T Sattler, Sattler & Associates Pty Ltd (Applicant) Ms J Hewitt, HWL Ebsworth Lawyers (Respondent)
File Number(s):	10830 of 2015

Judgment

1. Mr and Mrs Koutsos own a property known as 52-56 Darley Road, Manly and authorised the submission of Development Application DA154/15 to Manly Council seeking consent for alterations and additions to an existing boarding house to contain thirty seven (37) boarding rooms and one (1) manager’s accommodation room. The council refused consent on 15 October 2015 and the Koustsos are appealing that decision.

The site and its context

2. The property comprises three adjoining lots being Lots 1, 2 and 3 in DP 617419 which are located on the south western corner of Darley Road and Ashburner Street, Manly. The site is rectangular in shape with frontages of 16.029m and 29.085m to each street respectively. Site area is 465.4sqm.

3. The site currently contains a two storey building that was originally three terrace dwellings that were converted into a 22 room boarding house some time during the early to mid-20th century. That building is erected on an alignment of 1.219m to Darley Road and adjacent to the Ashburner Street property boundary at its northern extent and 1.71m across the southern portion of the building. A setback of approximately 7.6m is provided to the rear (southern) boundary with setbacks varying from 792mm to 2.515m provided along the eastern boundary.

4. The plans of the existing boarding house, Exhibit K, show the three buildings operate as independent units, each containing common kitchen and bathroom areas. Room sizes range from 7.7sqm to 29.1sqm. No on-site parking is provided. The council indicated that there is no consent that limits the number of lodgers in the existing boarding house.

5. A three storey mixed use building comprising ground floor retail area and units to the rear and above adjoins the site to the east with a three storey residential flat building to the immediate south of the site.

6. Development in the vicinity of the site comprises a mix of residential development ranging from single storey dwellings with pitched roof to four storey residential flat buildings of varied architectural style.

Background and the proposal

7. The development application was lodged with the council on 3 July 2015 and sought consent for alterations and additions to the existing boarding house to contain 37 rooms and 1 manager’s room. Consent was refused on 15 October 2015.

8. The plans propose the construction of additions to the rear (south) of the existing boarding house building and an additional storey across the whole of the buildings. Internal alterations to walls, rooms and stairways are proposed.

9. The upper level has been setback so as to preserve the existing terrace façade and terra cotta roof with the rooms constructed within that main roof space with mansard windows. The rear portion of the building would extend above the existing metal roof line and would be constructed with cement rendered walls and metal pitched roofing.

10. On 19 September 2013 the council approved Development Application No 195/2012 (existing consent). That consent applies to the site and also approved alterations and additions to the boarding house and would lapse on 19 September 2018.

11. Despite the description of the proposed development referencing 41 boarding rooms, it is common ground between the parties that the plans approved under the consent provide for a total of 35 rooms of which one is designated as a Manager’s room. It is also agreed that the plans do not provide for any on-site parking despite reference to a basement area and that only bicycle parking and a loading bay accessed off a new driveway crossing off Ashburner Street was provided with no provision for motor cycle parking. It is apparent that a number of conditions of the existing consent are inconsistent with the approved plans.

12. The plans before the Court propose a development that fits within the building envelope approved under the existing consent. The building is also similar in appearance to that approved in that it retains the front façade and roof and occupies the same footprint. The main changes are the internal room configuration and fenestration. The proposed building is identical in terms of building height, setbacks and footprint to that approved under the existing consent. A total of 36 rooms are included in the current proposal of which one is a Manager’s room. That is one more room than approved under the existing consent and has been fitted within the same floor area through the reorganisation of the circulation spaces and the deletion of the lift.

13. According to Exhibit J, the existing building has a floor area of 447sqm and floor space ratio (FSR) of 0.96:1, the approved development a floor area of 739.4sqm and FSR of 1.59:1 and the proposed development a floor area of 767.4sqm and FSR of 1.64:1. The additional floor space is due to the reduction in circulation space within the proposed development rather than an increase in the bulk of the building.

The planning controls

14. The site is zoned R1 General Residential under Manly Local Environmental Plan 2013 (LEP). A boarding house is permitted with consent in the R1 zone. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the R1 zone are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

15. Part 4 of the LEP contains Principal development standards and those relevant to the case are 4.3 Height of Buildings and 4.4 Floor Space Ratio (FSR). Under the relevant maps, the maximum building height is 8.5m and maximum FSR is 0.6:1.

16. The proposed development exceeds those controls and the applicant has provided a written objection to those development standards pursuant to the provisions of clause 4.6 of the LEP however argues that such an objection is not required in the case due to enabling provisions of clause 29(4) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH)

17. The site is subject to the provisions of clause 6.5 Terrestrial biodiversity however this is not a contention in the case as the council has included consent conditions that address the provisions of that clause.

18. Similarly, there is no contention that the provisions of clause 6.9 - Foreshore scenic protection area, is not satisfied.

19. The application relies on the provisions of Part 2 Division 3 of SEPPARH for the additional floor space and building height that is proposed. Whilst not a requirement for the site to be within an accessible area as defined in that policy, the site satisfies that definition.

20. Clause 29 contains standards that cannot be used to refuse consent and Clause 30 standards for boarding houses to which a consent authority must be satisfied before consent can be granted. Those clauses are in the following form:

29 Standards that cannot be used to refuse consent

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

(b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

(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 in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and

(ii) in the case of development not in an accessible area—at least 0.4 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).

30 Standards for boarding houses

(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,

(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,

(f) (Repealed)

(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.

21. Pursuant to clause 30A of SEPPARH for consent to be granted a consent authority must take into consideration whether the design of the development is compatible with the character of the local area.

22. Manly Development Control Plan 2013 (DCP) applies to the site with Parts 3.4 – Amenity, 4.4.9 Boarding Houses and Schedule 7 – Part A – Boarding Houses particularly relevant to the contentions in the case. Another provision such as dwelling density contained in 4.1.1 is also a contention.

The issues

23. The contentions in the case are whether adequate parking is provided; the FSR and building height are appropriate; the development adversely impacts on neighbouring properties; the provisions of the DCP are met; adequate parking is provided and the development is compatible with the character of the local area.

The evidence

24. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The issues raised are summarised as follows:

• Current boarding house is well run but concerned about having so many more people within the new building;

• Site should be heritage listed;

• Development will exacerbate existing parking problems;

• Adverse impact on streetscape;

• Business will suffer through competition for parking spaces;

• Noise through construction and additional people in building when completed will adversely impact amenity;

• Loss of light and privacy;

• Overshadowing;

• Non-compliance with planning controls, particularly setbacks;

• Development is too big, an overdevelopment of the site;

• Motorbike parking location will add noise and impact adjoining properties.

25. Expert traffic and parking evidence was heard from Mr B Maynard (applicant) and Mr J Coady (council) with town planning evidence by Mr R Fleming (applicant) and Mr S Layman (council).

Traffic and parking

26. The traffic experts agree that the existing 22 room boarding house makes no provision for the off-street parking of cars, motor cycles or bicycles. Applying the standards for parking in clauses 29 and 30 of SEPPARH, they agree that the existing boarding house would generate a requirement of 4.4 (say 4) spaces for cars, bicycles and motor cycles. The proposed 35 room boarding house would generate a requirement of 7 spaces for each mode of transport. The DCP includes parking provisions for boarding houses where the provisions of SEPPARH do not apply however that is not relevant in the circumstances of this case. Those provisions are higher.

27. In terms of carparking Mr Coady accepts that clause 29 is not expressed as a minimum parking requirement but rather as a parking standard which, if satisfied, removes the potential for a consent authority to refuse development consent on parking grounds.

28. Nevertheless he considers the standard represents the appropriate minimum parking provision for a boarding house located in an accessible area. He says it was open to the authors of SEPPARH to note that a nil off street parking provision is appropriate in particular circumstances however as that concession was not made this indicates that a nil parking provision was not considered appropriate in any circumstances. He says it is unarguable that boarding houses have the potential to generate some resident parking demand with the SEPPARH standard representing a low parking provision compared to those specified in the RTA Guidelines of 0.4 spaces per one bedroom unit for apartments in metropolitan and regional (CBD) centres or 0.6 spaces per one bedroom unit four apartments in metropolitan sub regional centres (such as Manly Town Centre). That comparison, according to Mr Coady, provides a realistic indication of the parking demand potential of the existing and proposed boarding house on the site and he says the development will generate a parking demand of seven spaces, or an increase of three parking spaces above the current demand generated by the 22 room boarding house.

29. He accepts that an increased parking demand of three parking spaces is relatively minor however, based on his observation of parking conditions in the vicinity of the site, on street parking demand is particularly congested with vacant on street parking spaces rarely available, particularly for long stay parking. The existing two hour on street parking controls in the vicinity of the site significantly constrain the potential for existing and future boarding house residents to find suitable on street parking spaces to satisfy their parking demand, in particular their long stay parking demand. He notes the development application was not accompanied by any surveys of on street parking accumulations in the vicinity of the site to substantiate an argument that additional parking demand potential is capable of being satisfactorily accommodated on street.

30. Mr Coady also recognises the proximity of the site to the Manly Ferry Terminal and bus interchange (approximately 450 m) and accepts that proximity to those public transport services will reduce the resident parking demand potential of the proposed, expanded boarding house and says those circumstances are addressed by the SEPPARH which specifies a higher parking standard of 0.4 spaces for each boarding room for boarding houses not located in an accessible area. The proposed 2.7 m wide driveway off Ashburner Street will eliminate kerbside parking for about one half of a car which increases the parking shortfall created by the boarding house expansion proposal to 4.5 spaces rounded up to 5 spaces. He considers the absence of any off street parking provision in the boarding house expansion represents appropriate grounds for refusal to consent to the application. He says the failure of the boarding house expansion proposal to make any off street car parking provision is symptomatic of an over intensification of development on what is a relatively small site.

31. Mr Maynard agrees that boarding houses in general have the potential to generate parking demand however says the proposed boarding house could easily attract residents that either do not own and/or do not need a car, including students, persons temporarily locating interstate/overseas, others requiring temporary accommodation and/or those seeking to enjoy the lifestyle and recreational benefits of the local area. He notes that the existing consent required no justification for not providing any parking on site and that the tenancies of the boarding house would not be eligible for a resident parking permit in the area. He says the on-site manager could ensure that all tenancies in the boarding house would be made aware that no off-street parking or resident parking permit would be provided or applicable.

32. He says Manly is a highly accessible area with a significant network of bus and ferry services providing connections to a variety of destinations including the North Shore, Northern Beaches and Circular Quay. Several on road and off-road cycle routes are provided in the immediate vicinity of the site, providing convenient access to surrounding areas. The local parking scheme and two-hour parking restrictions throughout the local area effectively protect the streets surrounding the site from impacts associated with resident and commuter parking. As no unrestricted parking is available within a reasonable walk from the site, he does not expect prospective tenants requiring parking for a private vehicle would select accommodation at the proposed boarding house. The proposed driveway from Ashburner Street accesses a loading bay for the development and given that any existing loading, service vehicle or maintenance vehicle activity currently using on street parking would be able to use the proposed loading bay in the future, this reduced on street demand would offset the minor loss of 0.5 parking spaces. He understands the loading bay was requested by Council in lieu of providing basement parking as part of the existing consent. He says the proposed boarding house can operate appropriately without off-street parking and without generating long stay tenant parking demand, providing prospective tenants are clearly advised that no parking is available.

26. Mr Maynard notes there is a private car share scheme in place with vehicles in various locations across the Manly area should tenants require a vehicle and he expects the on-site manager would provide tenants with information about that service. He understands the Council is reviewing the option to install car sharing parking spaces in the local area and says the implementation of such dedicated car share parking spaces would provide tenants with convenient access to a car if occasionally required, further reducing any car ownership/parking demand. For those reasons he considers the proposed development is reasonable and does not represent an over intensification of development.

27. In relation to the shortfall of three motorcycle parking spaces, Mr Coady is less concerned particularly in circumstances where the provision of four off-street motorcycle parking spaces satisfies the additional motorcycle parking demand potential for the expansion proposal. Mr Maynard says bicycles represent the most affordable mode of travel (other than walking) and bicycle parking has been prioritised accordingly. The provision of eight bicycle parking spaces satisfies the requirements for both the existing boarding house as well as the additional rooms provided under the proposed development. He agrees with Mr Coady that the four motorcycle spaces satisfy the additional requirement for the expanded boarding house.

Planning

35. Mr Layman considers the provisions of clause 30 of SEPPARH as they apply to motor cycle parking and says a total of 7 spaces are required. It is his opinion that the applicant’s objection to the development standard is not well founded and says that it would be possible to comply with the standard if a smaller building footprint was provided.

36. Mr Fleming relies on the evidence of the traffic experts.

37. The experts agree that the FSR for the proposal exceeds the development standard specified in the LEP and, in this regard the applicant has lodged an objection to that standard under the provisions of clause 4.6. Mr Layman considers that the objection is not well founded, does not satisfy the relevant provisions of the clause and the bulk and scale of the building is not minimised.

38. Mr Fleming notes the existing consent provided for a FSR of 1.59:1, also in excess of the 0.6:1 development standard and says that the additional floor space associated with this application arises from revisions to the internal detail of the approved floorplans including deletion of the lift, adjustment to the internal entry details of rooms at the lower level in association with minor amendments to the entry and stair detail and changes to glass line at level 2 to the Darley Road bay windows. These changes have increased the FSR calculation however, notwithstanding the increase in internal volume fo the building, the overall dimensions and height of the building remain consistent with the determination of the existing consent permitting the use of the site for 34 boarding rooms and a manager’s flat. He notes that not all rooms satisfied the accommodation size standard of clause 29(f) of SEPPARH with the effect of the current application increasing the number of rooms by one and adjusting the size of the individual rooms to meet the standard prescribed by SEPPARH.

39. Similarly, the height of the building exceeds the building height development standard specified in the LEP and the applicant has filed an objection to that standard pursuant to clause 4.6. Mr Layman expresses similar concerns about the objection and concludes the height in combination with the FSR exacerbate the bulk and scale effect. He says the desired future character (DFC) in terms of height and roof form anticipates a pitched roof form reaching a height of 8.5m which is representative of two storey development. The development adopts a faux pitched roof that is not consistent with the DFC.

40. Mr Fleming says the development has no impact on public or private views and will not be prominent in any views from the harbour or its foreshore and he agrees with the views expressed in the written submission lodged under clause 4.6 of the LEP concluding that it would be appropriate to allow the building at the height proposed.

41. For consent to be granted the Court must be satisfied that the design of the development is compatible with the character of the local area. The experts agree that the local area for the purposes of that assessment is the view shed from the site along Ashburner Street and Darley Road.

42. Mr Fleming cites the DCP and in particular its definition of streetscape which is as follows:

streetscape means the spatial arrangement and appearance of the built and natural elements (in the private and public domain) within a street, which create the character of that street. Such elements include the appearance of positively contributing building forms and styles, vistas, road, driveway and footpath surfaces, street trees, other vegetation, fences, walls, street furniture, utility services and traffic devices....

43. Part 3.1.1.1 of the DCP deals with the issue in general terms requiring complimentary form and building materials, consistency of architectural styles where appropriate, compatible building heights and regard to existing streetscapes. Setting aside the existing approval Mr Fleming says the style of the building as maintained by this application relies on the conservation of the existing terraced dwelling facades to the public streets and the integration of the building within the frameworks as established by those building elements. The site is within a locality that comprises a mix of land uses and housing styles including holiday and tourist accommodation and an eclectic mix of building forms, heights and styles. The land use retains the current and long-standing use of the site as a boarding house and to that extent is consistent with the objectives of clause 3(c) of SEPPARH. He concludes that the development is consistent with the character of the area and the DCP. He says it is not appropriate to "cherry pick" individual aims from the general aims of the plan at clause 1.2 of the LEP and seek to apply them to the development. That is because they are generic aims and the standard of urban design is to be read within the generic aim of fostering places to live and the provision of a diverse range of housing opportunities.

44. Mr Layman reiterates his view on the height and FSR contentions and considers that the proposal is not compatible with the character of the locality. The character of the locality is also one of highly limited on street parking with the proposal providing no offstreet parking for cars and in that sense is not compatible with the character of the locality.

45. In relation to the amenity impacts of the proposal, in particular noise of the common courtyard on adjoining neighbours, Mr Fleming says that the draft POM for the operation of the boarding house generally includes the use of communal and open space courtyard areas and procedures for complaints and complaints recording. The implementation of an effective management plan for the operation of the boarding house contrasts to the existing site circumstances and the proximity of the existing courtyard at the rear of the Terrace buildings and adjacent dwellings. In this respect the courtyard area proposed maintain the juxtaposition of courtyard spaces currently between the site and the rear of 58 Darley Road albeit with a 1500mm wide planter bed and fence to this common boundary and a 2.016m wide planter bed and fence to the common boundary with 8 Ashburner Street. The combination of the edge details and draft POM provide an effective arrangement for the location, edge conditions and management of the communal space opposed by this application and satisfy the obligation arising from Part 3.4.2.3 of the DCP.

46. Mr Layman provided no comment in relation to the amenity issue.

47. In relation to the overshadowing impact of the proposal, the DCP requires the maintenance of at least two hours sunlight to windows or glazed doors to living rooms from 9 AM to 3 PM on 21 June. The experts agree that at 9 AM midwinter the ground floor living area windows to 8 Ashburner Street are overshadowed and the first floor windows are in partial shade. At 10 AM the ground floor living area windows are generally overshadowed with part of one of the two living room windows receiving sunlight. The proposal would fully overshadow all ground floor windows at that time. At 11 AM the ground floor windows receive full sun and that sun would be totally lost as a result of the existing consent and the proposal.

48. By midday Mr Layman says the ground floor and first floor living area windows are in full sun and would remain so under the proposal however Mr Fleming says the living rooms are shaded by the orientation of their own building. Both agree that in the afternoon the windows are self-shaded. Mr Fleming concludes that the loss of sunlight to these living rooms is reasonable in the circumstances of the case because windows are all windows sited towards the rear of the site and reflect the layout of these apartments that site the kitchen and living room at the rear and southerly side of the site with the bedrooms located towards the front of the building having the northerly aspect and continue to have uninterrupted solar access to their windows in midwinter. These circumstances make it difficult to have 'no impact' on the current level of solar access to living rooms. This area of Manly is a higher density locality also contributing to the difficulty of protecting solar access.

49. Mr Layman says that presently the ground floor living area windows receive midwinter sunlight shortly after 11 AM and are in self shade by 1 PM and the proposal would reduce this by approximately 1 hour. The first floor living areas receive full midwinter sunlight shortly after 9 AM and are in self shade by 1 PM that is they receive close to but less than four hours midwinter sunlight with the proposal reducing this by approximately half an hour. The living room windows of 8 Ashburner face north east and the proposal is clearly in contravention of the DCP because there is a reduction in solar access to windows which have less than two hours sunlight. He says there is reasonable claim to retain solar access by provision of a compliant rear setback for the proposal and compliance with the height limit. Only about one hour of midwinter sunlight is retained for the ground floor living area of No 8, loss of half the existing access having regard to the size of the glazed area being considered, the glazed areas are modest in area and require that half the area be in sunlight to be assessed as receiving solar access. The area is not 'undergoing change' in that the existing development is likely to remain in place for the foreseeable future.

50. It is common ground that the DCP requires an 8m rear setbacks and the proposal provides for 5.366m and is non-compliant. Mr Fleming says the alignment of the building walls and the setbacks and wall height remain consistent with the approved development for the site and the alignment maintains the alignment of the current Terrace buildings which accords with the provision of 4.1.4.1 of the DCP to require front setbacks to relate to the front building line of neighbouring properties and the prevailing a building in the immediate vicinity. The alignment of the Ashburner Street setback is contextually appropriate given the nil alignment of the existing building and the building adjoining at No 8 and as provided for by the DCP, which makes no allowance for corner sites. He notes that the provision of an 8m rear boundary setback is not one that is characteristic of the area and its requirement would not arise from a consideration of clause 30A of SEPPARH.

51. Mr Layman says the building height of the Ashburner Street facade is approximately 8.5m measured to the top of windows set in the facade and therefore the required setback is 2.83m however the proposed setback of the windows is approximately 1.395m. The general wall height of the Ashburner Street facade is approximately 7.6m, requiring a setback of 2.533m and the proposed wall setback is 1.895m. He says the non-compliant setback is the result of a design decision to maximise FSR and exceed the SEPPARH control by 50%. The disparity between the proposed FSR and the FSR permitted by the LEP in the zone is indicative of the incompatibility of the built form with the DFC of the locality. Whilst he says it would be reasonable to vary the control in view of the secondary frontage, non-compliance in side and rear setbacks are a further indicator of incompatible bulk and character.

52. The contention relating to open space was resolved during the hearing and the council conceded the DCP density control would not, on its own, be a reason to refuse consent.

Conclusion and findings

53. At the conclusion of the hearing the main contentions relate to whether the design of the development is compatible with the character of the area, a threshold test pursuant to the provisions of clause 30A of SEPPARH; the weight to be applied to the existing consent; whether the development results in unreasonable amenity impacts to adjoining properties; whether adequate provision has been made for the parking of cars and whether the objection to the development standard for motor cycle parking is well founded.

54. The council’s contention included details that the clause 4.6 objections to FSR and building height were not well founded however Ms Hewitt, for the council, conceded that clause 29(4) of SEPPARH enabled the Court to consent to the application despite non-compliance with those standards.

Is a clause 4.6 objection required for building height and floor space ratio?

55. The provisions of SEPPARH that relate to standards are detailed above with the provisions relevant to the contentions repeated as follows:

29 Standards that cannot be used to refuse consent

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or………

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

(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,…..

(e) parking

if:

(i) in the case of development in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and

(ii) in the case of development not in an accessible area—at least 0.4 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,…….

(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).

56. In addition, clause 8 of SEPPARH states:

Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

57. Accordingly, the provisions of SEPPARH prevail over the provisions of the LEP where there is an inconsistency.

58. It is the applicant’s position that the provisions of clause 29(4) of SEPPARH allow the Court to grant consent to the application despite the development not complying with the FSR, building height and carparking standards however, for abundant caution, it has lodged objections to those development standards.

59. I agree that clause 29(4) allows me to determine whether the variation to the standards is appropriate without the need for a written objection under clause 4.6 of the LEP. The use of that clause is not unfettered and requires consideration of the variations sought.

Compatibility

60. The provision of clause 30A is an important consideration in deciding whether to exercise the discretion provided under clause 29(4). This requires determination whether the design of the development is compatible with the character of the local area.

61. I concur with the experts that the local area is Ashburner Street and Darley Road.

62. The existing character of that area is, as described by Mr Fleming, an eclectic mix of building forms, heights and styles. The site adjoins three storey buildings, is opposite one and two storey residential buildings with pitched roofs with three and four storey development further to the south along Ashburner Street. There is no consistent roof typology or architectural style.

63. The DFC is defined by the LEP development standards and the DCP controls.

64. The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are:

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

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

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

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

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

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

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

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

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

65. Another relevant consideration in this case is the existing consent and in particular the fact that the council had consented to a building that is almost identical to that proposed. That consent was granted pursuant to the provisions of SEPPARH and therefore, the design of the building was found to be compatible with the character of the area at that time. The Court notes that the assessment report (which had recommended refusal) had regard to the former Manly LEP provisions but also took into consideration the provisions of the current LEP which was in draft form at that time. According to the evidence, the relevant provisions did not change between the draft and the current LEP. The existing consent remains valid and therefore a building very similar to that proposed could be built on the site. That building would occupy the same footprint and building envelope and therefore result in identical external impacts to adjoining properties. The main difference between the applications is that the existing consent limits the number of boarders to 34, made no provision for onsite car or motor cycle parking and included no requirement for a POM to regulate the use of the premises.

66. Having regard to the evidence, I am satisfied that the design of the proposed development would be compatible with the character of the local area. The fact that the proposed building exceeds the building height and FSR development standards contained in the LEP is not, in the circumstances of the case, a reason to reach an alternate conclusion. That is because of the location of the site adjacent to other three storey buildings that occupy a large footprint and the general locality that also contains buildings above the height and FSR control. The proposed building will sit in harmony with those buildings and importantly retain the historic terrace house façade to Darley Road. That visual impact is an important consideration to the compatibility of the development and there is no evidence to suggest that the design of the development is not appropriate in those terms. The setbacks of the building are also consistent with those of adjoining properties and are not uncharacteristic of the streetscape.

67. The physical impacts of the development would be identical to that approved under the existing consent and whilst there will be some loss of sunlight to adjoining properties, I do not consider that this on its own would be a reason to refuse consent.

68. The noise impacts of the development would be better managed under the proposal as a POM that addresses these issues and incorporates a complaints management system will ensure that any concerns of neighbours can be properly addressed.

General Considerations

69. As well as having regard to the matters that must be considered before consent can be granted under SEPPARH, the matters listed in s79C of the Environmental Planning and Assessment Act 1979 (EP&AAct) must also be considered.

70. I am satisfied the proposal meets the objectives of the R1 zone. That is because the development will provide for the housing needs of the community in a variety of housing types and densities.

71. If I am wrong in the conclusion that I have reached on the application of clause 29(4) of SEPPARH, it is appropriate that I consider the written objections to the FSR and building height development standards lodged pursuant to the provisions of clause 4.6 of the LEP.

72. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

73. Having regard to the evidence and in particular to the written objections prepared, I am satisfied that these tests have been met. For the reasons stated above, the proposal satisfies the objectives of the R1 zone. having regard to the objectives of the development standards and the conclusions that I have made in relation to the bulk and scale of the development, I am also satisfied that the objectives of the development standards are met.

74. The proposed building height and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality. The bulk and scale is also consistent with that of adjacent buildings. There will be no disruption of views to nearby residential development from public spaces (including the harbour and foreshores), from nearby residential development to public spaces (including the harbour and foreshores) or views between public spaces (including the harbour and foreshores). There will be no loss of solar access to public open spaces and the impact on private open spaces is consistent with the DCP controls. The impact on sunlight access to the habitable rooms of adjacent dwelling, whilst resulting in a reduction to one of those dwellings is generally acceptable and identical to that of the building approved under the existing consent.

75. Similarly, the bulk and scale of development is consistent with the existing and desired streetscape character, does not obscure important landscape and townscape features, maintains an appropriate visual relationship between new development and the existing character and landscape of the area and minimises adverse environmental impacts on the use or enjoyment of adjoining land and the public domain.

76. For these reasons, I am satisfied that compliance with the development standards is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening those standards. I am also satisfied that the written objection adequately addresses the matters required to be demonstrated by subclause 4.6(3).

77. There is no evidence that contravention of those standards raises any matter of significance for State or regional environmental planning or that there is public benefit in maintaining those standards in the circumstances of the case. Finally, I have not been advised of any matters the Director-General would have to take into consideration in granting concurrence.

78. For these reasons, it would be appropriate to allow variation of the FSR and building height development standards under the provisions of clause 4.6 of the LEP.

79. The other particularly relevant LEP provisions contained in clauses 6.5 and 6.9 are satisfied or can be addressed through the agreed consent conditions.

80. The provisions of clause 30 of SEPPARH must be satisfied for consent to be granted. These standards are different from those contained in clause 29. In this case, the development satisfies all of the relevant standards of clause 30 with the exception of motor cycle parking. The application makes provision for the parking of 4 motor cycles whereas clause 30(1)(h) requires 7 spaces.

81. A written objection to that development standard is required and has been lodged (Exhibit G). Following the tests outlined above, I am satisfied that the written request justifies the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. That is because the proposal would be consistent with the R1 zone objectives and, noting there are no specific objectives in relation to the provision of motor cycle parking, the evidence of the traffic experts is that the shortfall of three spaces would not be a reason to refuse consent because of the accessible nature of the site and the fact that the development provides for off street parking for the additional boarding rooms that would be provided as a result of the new floor space. Accordingly, I consider the objection is well founded.

82. The development is generally consistent with the provisions of the DCP and where there are variations from the numerical controls, I accept Mr Fleming’s evidence that those variations are acceptable. Having regard to the evidence, I am satisfied that the impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and the site is suitable for the proposed development.

83. In relation to the issues raised by objectors and not covered above, I am also satisfied that the development will provide housing choice and satisfy the objectives of SEPPARH. The draft POM should address any potential concerns of the residents in relation to noise with privacy addressed through the use of screens and translucent glass. The fact that the existing consent continues to apply to the land is another relevant factor in my consideration of the acceptability of the development.

84. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA154/15 for alterations and additions to an existing boarding house to contain thirty five (35) boarding rooms and one (1) manager’s accommodation room at 52-56 Darley Road, Manly is approved subject to the conditions in Annexure 1.

3. The exhibits, other than exhibits A, E and 1, are returned.

_____________________

Sue Morris

Commissioner of the Court

10830 of 2015 - Annexure A (329 KB, pdf)

10830 of 2015 Morris (POM) (396 KB, pdf)

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Amendments

09 May 2016 - Typographical errors are corrected in paragraph 84 (2).

Decision last updated: 09 May 2016