Lam v Ashfield Council

[2015] NSWLEC 1195

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lam v Ashfield Council [2015] NSWLEC 1195
Hearing dates:	29-30 April 2015
Date of orders:	30 May 2015
Decision date:	13 May 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld see [78]
Catchwords:	DEVELOPMENT APPLICATION: Boarding house; character; bulk and design; amenity of neighbouring properties; amendments made
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 1 – Development Standards Ashfield Local Environmental Plan 2013
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category:	Principal judgment
Parties:	Benjamin Lam (Applicant) Ashfield Council (Respondent)
Representation:	Counsel: Applicant: Mr P Clay SC (Barrister) Respondent: Ms J Reid (Barrister) Solicitors: Applicant: McKees Legal Solutions Respondent: Wiltshire Webb Staunton Beattie
File Number(s):	10029 of 2015

Judgment

1. COMMISSIONER: The applicant appeals Ashfield Council’s refusal of Development Application No. DA10.2014.224.1 for the demolition of existing structures and the construction of a part two/ part three storey boarding house at 14 Elizabeth Street, Ashfield (the site).

2. The appeal is made pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act).

The site and its locality

3. The site is on the south-western side of Elizabeth Street between Elizabeth Street and the railway line. On the site is a single storey brick and tile dwelling with a carport. Vehicular access is provided by a driveway on the western side of the site.

4. The adjoining property to the east, at 12 Elizabeth Street, is a large two-storey Victorian house which has been converted into a residential flat building. Vehicular access to this property is via a driveway located on the eastern side. The setback from the common boundary between 12 and 14 is about 2.4m. There is a courtyard at the rear, between the eastern wing of the building and the dividing fence between it and the site.

5. To the west of the site is an Edwardian/ Federation style, single-storey dwelling (no. 16). The driveway is located on the eastern side. Part of the driveway is covered with a grape vine and used by the occupants of that property as their primary outdoor entertainment area.

6. Opposite the site is the Oak Street Heritage Conservation Area (HCA) characterised by single-storey free-standing dwellings from Federation to Californian Bungalow styles. The site is in the vicinity of a heritage item at 17 Elizabeth Street.

7. Elizabeth Street is a relatively busy local road that provides access from Liverpool Road to the areas on the northern side of the railway line between Summer Hill and Croydon. On-street parking in the vicinity of the site is restricted to the northern side of Elizabeth Street.

Relevant background and the proposal

8. In May 2014, the applicant submitted a provisional development application (DA) to council. Council advised the applicant that for a number of reasons (including unsympathetic design, non-compliant Floor Space Ratio (FSR), unacceptable privacy impacts on adjoining properties), the proposal was unlikely to be supported. The applicant subsequently provided amended plans based on that advice.

9. Council again wrote to the applicant and identified a number of outstanding issues, including many of the issues raised in the first advice.

10. The applicant lodged the DA without further changes on 7 August 2014. During the course of the assessment, the frontage was modified in accordance with advice from council’s heritage architect. The matter was referred to the Ordinary Meeting of the Council of 9 December 2014 with the assessing officer recommending approval. At that meeting, Council resolved to defer the application to enable its modification to, amongst other things, reduce the number of rooms to no greater than 8 double units and reduce the building to a maximum of two storeys.

11. The applicant did not amend the application. Council formally refused the DA on 10 February 2015.

12. In March 2015, the applicant was granted leave to rely on amended plans. During the hearing, the applicant was granted leave to rely on further amended plans, marked as Exhibit A; these plans address some of the issues raised by the parties’ planning experts during their joint conferencing. The council did not oppose the amendments subject to an order pursuant to s 97B of the Act for the payment of an agreed sum of $2000.00 for council’s costs thrown away. These are the plans before the Court.

13. The proposal comprises:

• Demolition of all structures on site.

• Construction of a part two/ part three storey boarding house with 12 rooms capable of accommodating 16 residents. All rooms are self-contained with kitchen and bathroom.

• The ground floor consists of a double garage accessed from a driveway on the eastern side of the site, a communal space, 1 x double and 1 x single accessible rooms, plus one double room, and a bin holding room at the rear.

• The first floor comprises two x double rooms and 4 x single rooms.

• On the third floor are three single rooms.

• The front of the building presents to the street as two-storeys with a pitched roof; the third storey is contained within a flat-roofed structure at the rear.

• On-site parking for bicycles at the rear, two motor-bike spaces in the front setback and another at the rear of the site, and two car spaces within the garage.

• Landscaping and stormwater drainage works.

The issues

14. Council’s Amended Statement of Facts and Contentions, prepared prior to the final further amended plans, identifies the following reasons for refusal of the DA.

• Overdevelopment; excessive floor space ratio (FSR); inconsistent with the desired future character of the streetscape;

• Incompatible with the character of the area;

• Unacceptable privacy and amenity impacts on adjacent properties;

• Inadequate provision of parking – cars and motorcycles;

• Poor level of amenity for residents;

• Inappropriate landscape treatment;

• Inadequate stormwater drainage system; and

• Not in the public interest.

15. Apart from these contentions, council also raises issues relating to inadequate information in regards to waste collection and storage, an updated Operational Plan of Management (POM), adequacy and accuracy of plans, and a State Environmental Planning Policy No. 1 – Development Standards (SEPP 1) objection to the number of motorcycle spaces (originally proposed as two).

Assessment framework

16. The site is zoned Zone R2 Low Density Residential under Ashfield Local Environmental Plan 2013 (ALEP); boarding houses are permitted with consent. The relevant objective of the zone is:

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

17. Clause 4.4 Floor space ratio applies. The objectives in cl 4.4(1) are:

1. To establish standards for development density and intensity of land use,

2. To provide consistency in the bulk and scale of new development with existing development,

3. To minimise adverse environmental impacts on heritage conservation areas and heritage items,

4. To protect the use or enjoyment of adjoining properties and the public domain,

5. To maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation.

18. The FSR for the site as shown on the Floor Space Ratio Map referred to in cl. 4.4(2) is 0.7:1.

19. Council presses heritage conservation objective (b) in cl. 5.10(1):

(b)   To conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

20. Ashfield Interim Development Assessment Policy 2013 (AIDAP) applies. Part B considers Site Analysis. Council contends that Principles 1-4 Context, Scale, Built Form and Density are relevant.

21. The Oak Street Conservation Area is described in Part C10 AIDAP. The distinctive qualities include: single dwellings separated from the street, as well as side and rear neighbours separated by green garden space; garages to the rear; uniformity of materials – red or brown bricks with glazed terracotta tiles; and uniformity in scale with hipped and gabled roofs.

22. Boarding Houses are specifically addressed in Part C18. Clause 2.3 Building Form and Appearance states:

2.3   The overall built form and appearance of a Boarding House will be determined to a large extent by the immediate context of the site and the desired future character of the area.

Objectives

All developments, including alterations and additions to boarding houses are to maintain constancy with the character of the locality and design objectives contained in Ashfield LEP2013 and the relevant Parts of Ashfield Interim Development Assessment Policy; and

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

23. The controls in cl. 2.3 Part C18 AIDAP refer to cl. 30A – Character of the Local Area in State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

24. The site is located in an accessible area under SEPP ARH. Clause 8 provides that should there be any inconsistency between SEPP ARH and any other environmental planning instrument, the SEPP prevails.

25. Division 3 SEPP ARH deals with boarding houses; this Division applies to Zone R2 Low Density Residential. Clause 29 lists the standards that cannot be used to refuse consent. Relevantly:

(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,

(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 is compatible with the streetscape in which the building is located,

(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,

(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).

26. Clause 30 specifies the standards for boarding houses. Relevant to the contentions, subclause 30(1)(h) states:

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

(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.

27. Clause 30A Character of local area states:

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

The hearing and the evidence

28. The hearing commenced on site. The Court and the parties had the benefit of hearing from owners of adjoining properties. Council’s bundle of documents contains the written submissions of those who gave oral evidence as well as submissions made by other objectors.

29. The concerns of owners of several apartments at 12 Elizabeth Street are summarised as:

• Inappropriate bulk, scale and design of the proposal, in particular the three storey element at the rear;

• Overlooking into the rear courtyard of no. 12 as well as onto the area of private open space of apartment 5 and onto the west-facing windows of apartment 1;

• Reduction of light into the west-facing living room windows of apartment 1;

• Unsympathetic use of materials and treatment of the front setback – concrete driveway and parking rather than gardens;

• Given the number of residents and expected high turnover, concerns about noise, and impacts on amenity especially as no on-site manager is proposed;

• Presence of a power pole in the proposed driveway;

• Existing problems with the sewer pipes from no. 14 that connect to those on no. 12 will be exacerbated if another 20 or 24 people are proposed;

• Potential traffic safety issues associated with reversing out of the driveway onto a busy street; and

• Increased pressure on already limited on-street parking spaces.

30. The owners of no. 16 Elizabeth Street provided additional material in support of their objection to the proposal. Their concerns are similar to those expressed by owners of no. 12 and additionally:

• The unacceptable and overbearing nature of the proposal, in particular the limited side setback along their common boundary, the height of the wall and the detrimental impact it may have on their principal area of private open space, a space used consistently for decades for family gatherings and recreation (as evidenced by photographs of many family events); and

• Reduction in light to the east facing window of a sitting room and to the grape vine which grows over their entertainment area.

31. The parties’ planning experts, Mr Stuart Harding for the applicant and Ms Kerry Gordon for the council, prepared a joint report dated 27 April 2015 (Exhibit 1). As a consequence of the further amended plans (Exhibit A) and matters arising during the hearing, the planners prepared an addendum to their joint report (Exhibit 5). The parties are content to rely on the experts’ opinions as expressed in those reports; neither expert was required for cross-examination. In addition to the further amended plans, the applicant also provided an updated Operational Plan of Management.

32. In response to the agreed position of the planners, the further amended plans (exhibit A) address a number of issues raised by them.

• The rear stair area is enclosed and incorporates windows to the stairwells. The planners agreed that this would not increase the Gross Floor Area (GFA) and would provide a better level of amenity and security for both occupants and neighbours.

• The size of the garage opening has been reduced.

• The roof form facing the street is now symmetrical.

• The north-eastern façade is setback 2m for the first 7m where it adjoins apartment 1/12 Elizabeth Street.

• The majority of the building is shown to be brick rather than rendered masonry, and the pitched section of the roof is tiled.

• Internal layouts of some of the rooms have been reworked with the total number of potential occupants reduced from 18 to 16.

33. The further amended plans indicate that the FSR is 0.82:1. The proposal complies with the maximum height control in ALEP of 8.5m.

34. Notwithstanding the areas of agreement between the planners, the key differences in opinion go to character and specifically:

• The location of the garage on the streetscape façade; and

• The bulk and visual impact of the flat-roofed three-storey element at the rear of the building;

35. In addition, there is some disagreement about the internal layout of the rooms and the provision of wardrobes, the adequacy of the parking provisions and a number of matters that may be resolved through the imposition of conditions.

36. In regards to the garage in the front façade, Ms Gordon maintains that a characteristic of the street is a lack of dominant parking structures at the front of dwellings with parking typically provided by a side driveway to a rear garage or side carport. In her opinion, the side driveway is a strong characteristic of the separation between dwellings. Ms Gordon considers a better option would be a single width driveway to the side providing entry to a basement parking area. In her view this would remove the garage from the front façade, maintain the pattern of side setbacks and remove the car and motorcycle parking from the front setback to enable more landscaping which she argues is a common feature of the streetscape, and enable the provision of three car spaces and the requisite number of motorcycle spaces she says are required by SEPP ARH.

37. With respect to the bulk, scale and visual impact of the three-storey section at the rear, Ms Gordon is strongly of the opinion that the third level is an uncharacteristic element in the streetscape which is essentially responsible for the non-compliance with the FSR controls. She maintains that this will be seen from the adjoining properties and its appearance is unacceptable.

38. Ms Gordon considers that a number of her remaining concerns could be addressed by conditions but need resolving. These are: demonstration on the plans of the location of wardrobes within the rooms; a minor adjustment to the rear exit to allow for increased bin storage (to council’s requirements of 12 bins) and provision for moving the bins over paving rather than grass; rather than screens on windows to manage privacy issues, the use of obscure fixed glass/ highlight windows/ or relocation of windows would improve the visual impact of the building; providing a symmetrical roof in both the northern and western hipped portion of the roof; and stormwater pipes not to be strapped to walls.

39. Mr Harding considers that the separation between buildings is now consistent with the separation of buildings on the southern side of Elizabeth Street; in his opinion a side driveway is not required and the side separation is adequate and not uncharacteristic of the street. He maintains that the proposed landscaping (put forward in a possible condition), including hedging along the front fence, will provide sufficient screening to the front yard. In Mr Harding’s view, providing a driveway in the frontage is not a significant departure from other properties in the immediate vicinity.

40. In regards to the form of the building, Mr Harding is of the opinion that “the proposal is not so radical as to enable a conclusion to be reached that the development ‘is not compatible with’ development in the surrounding visual catchment”. While he accepts that the roof forms are generally pitched and hipped, the area is quite eclectic with respect to building form, for example the form of the three-storey units to the west of the site in Orpington Street.

41. Mr Harding considers the deficiencies in parking spaces come from rounding down rather than rounding up the rates; and in his view the variation is not fatal. He maintains that the site is well-located for public transport and there are many successful boarding houses in the inner west that have less parking that that proposed for this development. With respect to one of the motorcycle spaces being located at the rear of the site, Mr Harding considers that in his practical experience, it will be possible to manoeuvre a motorbike along the side access. While he considers that the other issues and possible conditions raised by Ms Gordon are not necessarily required, they could be accommodated relatively easily.

Submissions

42. Mr Clay, for the applicant, presses the recommendation to approve the proposal made by the specialist planner, Mr North, who initially assessed the development application. He cites Mr North’s summary in the report made to the Ordinary Meeting of Ashfield Council on 9 December, 2014 which states:

The proposal is consistent with the applicable development standards and policy controls applying to the site. Although it maximises its floor space and height, it does so just within the limits of these controls. The aesthetics of the proposal have been refined during the course of the assessment in consultation with Council’s heritage advisor to produce an acceptable streetscape outcome in the context of the nearby heritage items and conservation area.

Amenity impacts on neighbouring properties are acceptable, in part due to the favourable north-south orientation of the site which naturally avoids excessive overshadowing impacts. Although the proposal provides minimal parking in an area where on-street parking spaces are at a premium, the number of spaces proposed is consistent with the State Environmental Planning Policy (Affordable Rental Housing) 2009 which overrides Council’s controls.

Finally, the proposal provides a high level of amenity for occupants with each room providing kitchen, bathroom and laundry facilities. The development is therefore recommended for conditional approval.

43. In regards to the specific issues of parking and impacts on heritage values, Mr Clay notes the more detailed comments in Mr North’s report made in response to submissions made by objectors.

Inadequate parking under the SEPP:    The parking provision meets the requirements of the SEPP. Note that the required number of spaces is rounded up or down in accordance with Council’s policy.

Adverse impacts on heritage values of the locality: The proposal (in particular the front façade) has been modified in accordance with the specific requirements of Council’s heritage advisor to present to the street in a manner which is consistent with the locality and its heritage sensitivities. It now presents as a two storey scale to the street in a traditional general form.

44. While the Council subsequently refused the development application, Mr Clay contends that Council’s suggestion to limit the proposal to no more than 8 double units, that is, a maximum of 16 occupants, has now effectively been achieved by reconfiguring the rooms, albeit over three levels, to limit the number of residents to 16.

45. Mr Clay submits that the key issue is satisfaction of the ‘character test’ in cl. 30A SEPP ARH: that is, the Court must take into consideration whether the design of the development is compatible with the character of the local area. In this regard, Mr Clay notes that the council determined not to include the southern side of Elizabeth Street in the heritage conservation area because council recognised it had a different character. For this proposal to be compatible with the local area, he contends it needs to express sufficient of the characteristics of the southern side of the street.

46. Mr Clay refers to Ms Gordon’s evidence and maintains that the key to her opinion is that the character is created by the rhythm of the street and the side setbacks and driveways to the side. He contends that the amended plans have now provided an increased setback at the front to No. 12 and the effect is one narrow and one wider side – typical, he says, of the immediate locality. Mr Clay argues that to put a driveway down one side would potentially create more disturbance to whichever neighbour it adjoined and basement parking is not a characteristic of the area. Further, in regards to Ms Gordon’s concerns about the garage door and front setback treatment, Mr Clay maintains that these are ill-founded but the amendments have reduced the width of the garage door and the type of door is prescribed in conditions, and in addition, the low brick palisade fence with landscaping will be in keeping with the adjoining properties.

47. With respect to the third storey at the rear, Mr Clay contends that height is not an issue and the 3 storey element backs onto the railway line. He submits that there are no unreasonable impacts on neighbouring properties arising from this portion and that while it will be potentially seen from the street, it is unlikely to be seen from passengers on passing trains, particularly as the rear garden will be landscaped. My Clay maintains that the ‘character test’ does not require replication but a sufficient degree of compatibility and harmony. However, Mr Clay stated that should the Court take the council’s view that there should be a pitched roof, it would be open for the Court to take an ‘amber light’ approach and permit the applicant to further amend the design but retain some accommodation at the third level but incorporated into the roof space.

48. With respect to other issues raised by objectors and the council, Mr Clay asserts that the council has not raised any objection of the grounds of traffic or on-street parking.

49. Ms Reid submits that since the time of refusal of the development application, council has maintained its objection on the basis of compatibility which essentially arises from the overdevelopment of the site. In particular, council’s view is that the building should be limited to two storeys and of a lesser bulk. She maintains that as the proposal exceeds the FSR control in ALEP, that on merit, the applicant must fail because the development does not achieve the objectives for the control which are designed to provide consistency in the bulk and scale of new and existing development, especially in areas where the existing character is not undergoing substantial transformation. In this respect Ms Reid argues that as a relatively new instrument, ALEP retains the R2 Low Density Residential Zone for the site, and as such, the existing character is the character the council wishes to retain.

50. In regards to the design of the building, Ms Reid contends that the flat-roofed form of the third level of the building is uncharacteristic of the area. She submits that this element of the building has been the subject of many public submissions objecting to the proposal. Apart from the inconsistency with the character of the area contributed by the rear of the building, Ms Reid maintains that the domination of the front façade by the garage is similarly uncharacteristic. Similarly, although the setback from no. 12 has been increased, the separation is much less than other nearby dwellings and thus the rhythm of the street has not been achieved. In Ms Reid’s submission, the proposal fails the compatibility tests in [24](b) of Project Venture [see below].

51. Ms Reid presses Ms Gordon’s opinion in regards to the provision of parking and the application of cl. 29(2)(e) SEPP ARH and the concessions built into the SEPP for locations within ‘accessible’ areas. She cites the evidence of the residents and the many submissions on the level of saturation of on-street parking as a reason for requiring at least 3 car and 3 motorcycle parking spaces. If the third floor were deleted, Ms Reid maintains that this would delete 0.6 spaces and result in a compliant 2 car parking spaces and a third motorcycle space would not be required.

52. During submissions, Ms Reid was advised by a council officer that manoeuvring a motorbike down the side passage would require a clearance of 1.5m rather than the 1.36m proposed by the applicant.

Findings

53. The key question in this matter is whether the design of the development is compatible with the character of the local area; that is, consideration of cl. 30A in SEPP ARH.

54. The Planning Principle: ‘compatibility in the urban environment’ published in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, is a useful starting point. The following paragraphs are relevant:

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.

(a) Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

(b) Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

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.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

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.

55. Dealing first with the physical impacts of the proposal on the surrounding properties, the council has not raised any particular issues with unreasonable overshadowing, noise or privacy impacts; however these issues have been raised by the residents of adjoining properties. The planners agree that the proposal complies with the height controls. While I appreciate the concerns of the residents of no. 16, any new development on the site could be two-storeys and have a height of 8.5m and would therefore have a greater visual impact than the current single storey dwelling. Similarly, while the existing dwelling has a considerable western side setback because of the driveway, no issue has been raised in regards to non-compliance with the proposed western side setback. The planners also agree that the enclosure of the rear façade will limit potential problems arising from noise. I agree with Ms Gordon that rather than the installation of privacy screens to limit the potential for overlooking into adjoining properties, fixed opaque glazing for bathroom windows and highlight windows/ or a combination for other windows are preferable so as to maintain internal amenity for future residents.

56. With respect to the more subjective consideration of the appearance of the building being ‘in harmony’ with surrounding development, the following aspects are raised by council as being out of character: a garage in the front façade, the absence of a driveway to the side, parking of motorbikes in the front setback, and the three storey flat roofed section at the rear.

57. In consideration of the relevant concepts raised in [23] of the Planning Principle in Project Venture, I note Ms Reid’s submission that ALEP 2013 is a relatively new planning instrument and Ashfield Council has maintained the R2 zoning for the site, and to that extent, it can be argued that the planning controls do not envisage a change of character and that the current character is the desired future character. I also note Mr Clay’s submission that the southern side of Elizabeth Street has not been included in the Oak Street HCA.

58. While I accept that a garage incorporated into the front façade is not a feature of any nearby properties, I find that the reduction in the width and treatment of the garage door, combined with the proposed landscaping featuring a hedge along the front palisade fence and additional planting between the driveway and the side pathway into no. 12, will mitigate the visual impact of it from the street. I agree with the applicant that an underground car park is a similarly uncharacteristic feature of nearby properties and is an expensive option for the provision of a relatively small number of parking spaces in an area well-serviced by public transport. While driveways to the side are typical of the street, given the proposed use as a boarding house as opposed to a family dwelling, conventional parking and access arrangements cannot practically apply. Therefore I do not consider that the proposal should be refused on this basis.

59. Similarly, the provision of two motorbike spaces in the front setback, as shown on the ground floor plan is not unreasonable but is to a large extent reliant on the establishment and maintenance of landscaping in a narrow strip across part of the front fence. While no specialist evidence was adduced, with the horticultural expertise I bring to the Court, a ‘safer’ landscape option (that is, in order to give the plants the greatest chance of achieving their purpose) may be the front setback treatment shown in Ground Floor Plan A1201 issue E but incorporating the planting on the eastern side boundary as shown in Ground Floor Plan A1201 issue G (the plan before the Court).

60. Apart from the functional aspect of a driveway to the side, council’s issue is effectively the ‘rhythm’ created by the varying width of side setbacks along the southern side of Elizabeth St. The increased setback of the garage from the eastern boundary is an improvement on the original proposal and while not of the dimensions of a driveway, the result is one wider and one smaller side setback and thus some consistency in the rhythm is achieved.

61. Overall, I am satisfied that the design of the front portion of the proposed development (incorporating the improvements to the roof form and choice of materials and finishes) is capable of existing in harmony with the surrounding area.

62. However, that said, I find that the rear flat-roofed three storey element is inconsistent with any nearby residential property and is not compatible with development in the surrounding area. An ‘essential element’ (Project Venture at [26]) of the architectural style of the surrounding residential area is the pitched roof form. While the view from the street of the flat-roofed section may be limited, it is likely it will be seen from the street and it will be clearly visible from the adjoining properties. Although the site is not part of the Oak Street HCA, it is in the vicinity of it.

63. The third level of this portion is also largely the reason for the exceedence of the FSR controls. I agree with Ms Reid that as proposed, the development does not meet all the objectives of the FSR development standard in cl. 4.4(1). In my view the proposal does not achieve ‘consistency in the bulk and scale’ with existing development (objective (b)) or ‘maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing’ a substantial transformation (objective (e)).

64. While Ashfield Interim Development Assessment Policy has not gone through the same level of consultation as a Development Control Plan, it nonetheless provides a guide to council’s expectations for new development. For the reasons given above, I am not satisfied that the rear element of the proposal achieves objective (a) in cl. 2.3 Part C18 – Boarding Houses – to ‘maintain constancy with the character of the locality’.

65. During submissions, Mr Clay flagged that should I agree with the council that the rear flat-roofed element was unacceptable it would be open for me to take an “amber light” approach and enable the applicant to redesign this portion of the building.

66. Having found that the further amended plans address the majority of the contentions, I propose to consider approving the development subject to the resolution of the form of the rear element. As discussed during the hearing, redesigning the section to incorporate a pitched roof of some kind and some accommodation in attic-style rooms will likely reduce the overall number of rooms. This should reduce the FSR to more acceptable levels as well as limit demand for parking. It was also considered that changing the roof form may lead to a slight exceedence of the height control; if this does arise it is incumbent on the applicant to prove, for example by way of shadow diagrams, that there will be no unacceptable impacts on the amenity of adjoining properties.

67. With respect to the other issues raised by council and objectors, I agree with Ms Gordon that cl. 29(2)(e)(i) SEPP ARH requires 0.2 car spaces per room, as does cl. 2.6 Car Parking in Part C18 – Boarding Houses, AIDAP 2013. As there are 12 rooms, 2.4 spaces are required and usually this would equate to 3 spaces as there cannot be part of a space. While Mr North’s comments, and AIDAP Part C11 – Parking, appear to suggest that calculated parking rates resulting in a number less than X.5 should be rounded down, cl. 8 SEPP ARH gives primacy to the SEPP over other instruments and controls. However, that said, cl. 29(4) SEPP ARH does not prevent a consent authority granting consent if a proposal does not comply with one of the standards in subclauses (1) or (2). Given the proximity of the site to public transport, and the provision of one space suitable for someone with a disability, I consider the provision of two parking spaces is reasonable in the circumstances.

68. The adequacy of motorcycle parking remains in contention. Clause 30(1)(h) requires at least one parking space for a bicycle and a motorcycle for every five rooms. As there are 12 rooms, 2 spaces are required. In my view the wording of this subclause is subtly different to the clause relating to car parking. In this instance, the threshold for the next bicycle or motorcycle would be 15 rooms. Therefore, as long as two motorcycle spaces can be located in the front setback and adequately screened, there is no need to provide a third motorcycle space at the rear. However, if a third motorcycle space at the rear is considered desirable, I accept Mr Harding’s opinion that the site setback is of sufficient width to enable the manoeuvring of a motorcycle. If this is required, the parking location is to be clearly identified and a condition imposed requiring that the engine be turned off before it traverses the side passage. If the applicant takes the opportunity to redesign the rear element of the building, with the expected reduction in the number of rooms, the demand for parking of any vehicle should be reduced. The location of the bicycle parking at the rear of the building is appropriate.

55. In regards to traffic safety and the power pole, council has not raised any concerns over either issue. The number of vehicles permitted on the site is unlikely to be any more than might be expected were the site to be used as a family dwelling. While the matter of the pole was addressed in Mr North’s assessment, during the course of the hearing, the applicant received preliminary advice on the cost of relocating the pole and attached mains.

56. Similarly, the very reasonable concerns of the owners of units at no. 12 with respect to the shared sewer connection were discussed and a condition of consent is to be drafted to require the applicant to provide a separate connection to the main that does not traverse another property.

57. The residents of no. 12 Elizabeth Street voiced a desire for there to be a manager in residence. Clause 30(1)(e) SEPP ARH specifies that ‘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’. The current proposal is for 16 residents; with the suggested amendments there are likely to be fewer residents. While I note that cl. 2.7(b) Part C18 Boarding Houses, AIDAP states that all new boarding houses must have a live-in manager, for the reasons given in [69] of this judgment, if there is any inconsistency in the controls, the SEPP prevails. In any scenario, there is no requirement under SEPP ARH for an on-site/ live-in manager; however, the Operational Plan of Management states that the owners of nearby properties will be provided with a 24 hour contact number for the manager/caretaker with responsibility for managing the premises. A condition requiring that a copy of the Operational Plan of Management be provided to adjoining owners is also required.

Conclusions

72. Having considered the relevant matters in accordance with s 79C of the Act, and with the benefit of the site inspection, the evidence of the adjoining neighbours and the parties’ expert planners, I find that the proposal in its current form does not satisfy the ‘character test’ in cl. 30A SEPP ARH nor does it achieve critical objectives for the FSR development standard in ALEP and cannot be approved in its current form.

73. However, I propose to enable the applicant an opportunity to address the matters raised in this judgment. In particular, as considered in [66] modifying the roof form of the rear element of the building to a pitched form consistent with the roof style of the immediate area. If it is possible to achieve some attic-style accommodation within the roof that complies with the standards set by SEPP ARH and achieves an acceptable level of amenity for future residents and which demonstrably does not create unreasonable impacts on adjoining properties, the proposal is capable of approval.

74. Other matters raised in the judgement are found in the following paragraphs: [38] issues identified by Ms Gordon; [55] window treatment; [59] landscaping and motorcycle parking in the front setback; [70] sewer connection; and [71] Operational Plan of Management.

75. Should the applicant wish to make those changes, amended plans are to be prepared and conditions of consent prepared on the basis of those plans and other findings in this judgment. The Operational Plan of Management will also need to be amended. If these documents are forthcoming, Orders will be issued in Chambers upholding the appeal.

76. If the applicant chooses not to make the changes, Orders will be made in Chambers dismissing the appeal.

Directions

1. 1. The applicant is to advise the Court and the council by ecourt on 15 May 2015 as to whether it intends to amend the application to reflect this decision. If so the parties are to confer and prepare an agreed timetable for finalising the plans, conditions and Operational Plan of

Final orders

77. In accordance with the Court’s directions the applicant has prepared amended plans and Operational Plan of Management. The parties have agreed on conditions of consent. In particular, the third storey element at the rear has been reconfigured with a pitched roof. This is in keeping with the architectural character of the area. I am satisfied that the shadow diagrams provided as requested indicate no unreasonable impact on the amenity of adjoining properties. As a consequence of the changes, the number of rooms has been reduced from 12 to 11 and the number of residents from 16 to 15. Therefore, the demand for parking is reduced. While marginally non-compliant, the provision of off-street parking spaces is sufficient given the proximity of the site to public transport.

78. I am satisfied that the amended plans, agreed conditions of consent and the amended Operational Plan of Management reflect the matters raised in this judgment. Therefore the Orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA10.2014.224.1 for the demolition of existing structures and the construction of a part two/part three storey boarding house for a maximum of 15 residents and comprising 11 boarding rooms at 14 Elizabeth Street, Ashfield is approved in accordance with the Conditions of Consent in Annexure “A”.

3. The exhibits are returned.

_____________________________

Judy Fakes

Commissioner of the Court

10029 of 2015 orders_Amended on 29 July 2015 (206 KB, pdf)

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Amendments

03 August 2015 - Annexure 1 - SK - 01 is attached on the Order.

Decision last updated: 03 August 2015