Leech Harmon Architects v Northern Beaches Council

[2020] NSWLEC 1032

Land and Environment Court

New South Wales

Medium Neutral Citation:	Leech Harmon Architects v Northern Beaches Council [2020] NSWLEC 1032
Hearing dates:	18 December 2019
Date of orders:	22 January 2020
Decision date:	22 January 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The applicant is granted leave to amend the application to rely on the architectural plans listed in condition 2(a) of the conditions of consent at Annexure A. (2) The applicant is to pay the respondent’s costs thrown away as a result of the amendments made to the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3)   The appeal is upheld. (4)   Development Application No. 2018/1166 for the demolition of all existing structures on the site and the construction of five 2-storey buildings over a split level basement carpark, containing 80 boarding rooms including 5 managers’ rooms, with associated access, communal areas and landscaping works, is approved, subject to the conditions of consent at Annexure A. (5)   The exhibits, other than Exhibits 1, A, C and E, are returned.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – whether design of the development is compatible with the character of the local area
Legislation Cited:	Environmental and Planning Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011
Cases Cited:	Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Leech Harmon Architects (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) F Berglund (Respondent)   Solicitors: Sattler & Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/289481
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2018/1166 for demolition of all existing structures and construction of five 2-storey buildings over a split level basement carpark, containing 80 boarding rooms including 5 managers’ rooms, with associated access, communal areas and landscaping works (the proposal) at 11 May Street and 613 and 615 Pittwater Road, Dee Why (the site), by Northern Beaches Council (the Council).

2. The appeal was subject to conciliation on 29 April 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 28 August 2019 for the applicant to amend the application to rely on amended drawings, subject to the applicant paying the costs of the respondent thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act.

4. Leave was unopposed and granted at the commencement of the hearing in Court for the applicant to amend the application to rely on amended drawings (Ex A), subject to the parties’ agreement that the applicant would pay the costs of the respondent thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed.

Issues

5. Following the amendments made to the proposal and agreed conditions of consent, the Council’s remaining contentions can be summarised as:

• The proposal’s excessive bulk and scale is not compatible with the character of the area and does not respond to the challenges of the site and the proposal has insufficient building articulation and modulation along the side elevations. Pavilion style buildings stepping down the site in sympathy with the contours would mitigate the overbearing bulk and scale and reduce the impacts of excavation and fill.

• The height of Building D is inconsistent with the scale of development within the R2 zone.

The site and its context

6. The site consists of three lots with a total area of 3,169sqm and is irregular in shape.

7. The site is on the western side of Pittwater Road, to the north of Warringah Road. The site is a short distance from the Dee Why town centre on Pittwater Road.

8. 613 Pittwater Road is a battle-axe allotment to the rear of 613A Pittwater Road, with an access handle to Pittwater Road to the north of 613A Pittwater Road. 615 Pittwater Road fronts Pittwater Road and adjoins the access handle of 613 Pittwater Road. 11 May Street fronts May Street and shares a rear boundary with 613 Pittwater Road. The site is accessed by a roadway that runs adjacent to the western side of Pittwater Road and from May Street.

9. There is a large property to the south of the site containing semi-detached townhouse development.

The proposal

10. The proposal is for a boarding house development and includes the following works:

• Demolition of all on-site structures.

• Construction of five 2 storey buildings containing 80 boarding rooms (each with private facilities including a kitchenette, ensuite bathroom and balcony), including 8 accessible rooms and 5 managers’ rooms.

• Basement containing 47 car parking spaces, 21 motorcycle parking spaces and 66 bicycle spaces.

• Landscaping works and communal areas.

11. The proposal for 80 boarding rooms includes 5 single rooms and 75 double rooms, for a total population of 155.

Planning framework

12. The site is zoned R2 Low Density Residential pursuant to the Warringah Local Environmental Plan 2011 (LEP 2011). The objectives of the R2 zone, to which regard must be had, are:

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

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

• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

13. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), Part 2 New affordable rental housing Division 3 Boarding Houses. Division 3 applies to the site at cl 26(b) for the purpose of a boarding house at cl 27(1) of SEPP ARH.

14. The consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area, at cl 30A of SEPP ARH.

15. As the development application was made before the commencement of the amending SEPP ARH that included cl 30AA and was not finally determined by a court before that commencement, the application must be determined by applying all provisions of SEPP ARH as if the amending SEPP had not commenced, pursuant to cl 54C of SEPP ARH.

16. The floor space ratio (FSR) development standard at cl 4.3 of the Standard Instrument was not adopted in LEP 2011.

17. Part D of the Warringah Development Control Plan 2011 (DCP 2011) includes the following relevant provisions:

“D1 Landscape Open Space and Bushland Setting

This provision applies to the site as shown on the DCP Map Landscaped Open Space and Bushland Setting.

There is a minimum of 40% landscaped open space for a typical residential allotment.

D2 Private Open Space

Objectives

• To ensure that all residential development is provided with functional, well located areas of private open space.

• To ensure that private open space is integrated with, and directly accessible from, the living area of dwellings.

• To minimise any adverse impact of private open space on adjoining buildings and their associated private open spaces.

• To ensure that private open space receives sufficient solar access and privacy.

D9 Building Bulk

Objectives

• To encourage good design and innovative architecture to improve the urban environment.

• To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes.

Requirements

1. Side and rear setbacks are to be progressively increased as wall height increases.

2. Large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief.

3. On sloping land, the height and bulk of development (particularly on the downhill side) is to be minimised, and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. In particular:

The amount of fill is not to exceed one metre in depth.

Fill is not to spread beyond the footprint of the building.

Excavation of the landform is to be minimised.

4. Building height and scale needs to relate to topography and site conditions.

5. Orientate development to address the street.

6. Use colour, materials and surface treatment to reduce building bulk.

7. Landscape plantings are to be provided to reduce the visual bulk of new building and works.

8. Articulate walls to reduce building mass.”

Public submissions

18. Three resident objectors provided evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• The proposal will house 2-4 lodgers per room and significantly increase the population on the site which is inconsistent with the amenity of the R2 Low Density Residential zone;

• The proposal includes the excavation of rock which will create silica dust;

• The proposal will significantly increase the traffic in May Road, which is a thoroughfare for cars shortcutting between Warringah Road and Pittwater Road and is narrow when cars are parked on both sides of the road;

• The proposal will increase the traffic along the roadway adjacent to Pittwater Road that provides access to the properties on the north-western side of Pittwater Road including 613 and 615 Pittwater Road and increase the traffic volume in the difficult intersection of May Road, Pittwater Road and Mooramba Road. The proposal will impact on pedestrian safety along the roadway.

• The proposal will have unacceptable amenity impacts on the adjoining site at 605 Pittwater Road which contains six pairs of semi-detached townhouse dwellings backing onto the shared side boundary with small courtyards at the rear of those dwellings adjacent to the side boundary, including overlooking and overshadowing.

• The amendments made to SEPP ARH to limit the total number of boarding rooms in R2 zones reflects the impact that large boarding house developments have on low density residential areas.

19. In response to the objectors’ evidence, I note there is a maximum of 2 adult lodgers permitted per boarding room (cl 30(1)(c) of SEPP ARH) and the proposal is for 5 single rooms and 75 double rooms.

Expert evidence

20. The applicant relied on the expert evidence of Karla Castellanos (urban design), Greg Boston (planning) and Oleg Sannikov (traffic). The Council relied on the expert evidence of Lea Lennon (urban design), Lashta Haidari (planning) and Patrick Bastawrous (traffic).

21. The experts were not required to give oral evidence.

Submissions

22. The applicant submitted that the proposal has a landscaped area of 45% which satisfies DCP 2011 control at D1 requiring the site to have 40% landscaped area.

23. The applicant submitted that the proposal meets the two tests for the compatibility of a development with surrounding development in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [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?”

24. The applicant submitted that the amended proposal in Ex A does not result in unreasonable physical impacts on surrounding development as demonstrated by the deletion by the Council of the contentions regarding height, solar access and overshadowing of adjoining development, views, privacy and acoustic privacy.

25. The applicant submitted the proposal’s appearance is in harmony with the buildings around it and the character of the street on the basis of the evidence of Ms Castellanos in the joint report of the urban design and planning experts (Ex 4).

26. The Council submitted that the issue is not the size of the footprint of one of the buildings proposed on the site; it is the duplication of the footprint as it is atypical to find five such buildings on a site in a low density residential zone. The proposal achieves a density on the site that is not harmonious with the character of the low density residential local area.

27. The Council submitted that despite the contentions regarding amenity impacts no longer being pressed, the resident objectors maintained that the proposal will result in amenity impacts on their properties. The development will be viewed from a number of surrounding properties as well as the public domain and this impact should be taken into account in determining whether the proposal’s appearance is in harmony with the buildings around it and the character of the street.

Consideration

28. The only remaining contention pressed by the Council following the amendments made to the proposal in Ex A is that the design of the proposal is not compatible with the character of the local area.

29. The urban design and planning experts agreed that the site is different from the typical residential lots in the vicinity in size and configuration (Ex 4, 3.1.1(b)). The site is an unique configuration because 613 Pittwater Road is a unusually large “land locked” allotment with an access handle to Pittwater Road, surrounded by properties, and it has been married to two much smaller adjoining allotments for the purpose of this proposal, 11 May Road to the north to provide access to May Road and 613 Pittwater Road to the east and fronting Pittwater Road. Furthermore, the northern side boundary of 613 Pittwater Road is the rear boundaries of the six dwellings fronting May Road (including 11 May Road), and the southern side boundary is effectively the rear boundary of the semi-detached townhouses that have been orientated on their site so that their private open space is adjacent to the side southern boundary of 613 Pittwater Road, despite this shared boundary being a side boundary to both allotments. I do not accept the Council’s position that it is the duplication of the five buildings that is the issue because it is atypical to find five such buildings on a site in a low density residential zone. As a result of the unusual configuration of this large site, its future development would be somewhat of an anomaly in terms of the character of development within the R2 zone regardless of its use and style of development. In addition, the development of the semi-detached town houses to the south of the site is also an unusually high density development to find in a R2 zone.

30. The character of the local area, being the visual catchment of the site, is mixed. There are typical detached dwellings on suburban lots fronting May Road and battle-axe lots behind those, particularly in the vicinity of the Victor Road intersection; and there are residential flat buildings and townhouse developments along Mooramba Road and the service station on the triangular site on the opposite side of May Road adjacent to Pittwater Road. This change in character towards the foot of the hill is partly reflective of the changes in zoning from R2 to the R3 Medium Density zone on the opposite side of May Road, behind the B4 zone on either side of Pittwater Road that is the Dee Why town centre, however, there are also some medium density style developments in the R2 zone close to Pittwater Road. The Dee Why town centre forms the backdrop to views from the site and surrounding properties.

31. I am satisfied that the bulk and scale of the five buildings proposed are commensurate with the likely bulk and scale of the development of the site for low density residential use and that the proposal achieves a density on the site that is harmonious with the character of the low density residential local area, for the following reasons:

• The minimum lot size for the site is 600sqm (Lot Size Map - Sheet LSZ_010A of LEP 2011). The site could be divided into the three allotments that make up the site and 613 Pittwater Road further subdivided into three allotments, resulting in five residential dwelling on five sites, with building envelopes similar to the proposal. I do not accept Ms Lennon’s view that the subdivision of 613 Pittwater Road for residential development would necessarily result in “much tighter constraints to the allowable building footprint” (Ex 4, 3.1.2 (c)) because generally the front, side and rear setbacks are not so strictly applied to a battle-axe lot because a battle-axe lot presents different opportunities and constraints for development.

• I accept the agreement of the urban design and planning experts that the proposal for the development of lots fronting May Road and Pittwater Road follow the traditional residential patterning of the surrounding residential lots (Ex 4, 3.1.1(a)).

• I accept Ms Lennon’s evidence that the figure-ground analysis at Appendix B of Ex 4 demonstrates that the proposed buildings on the site have smaller footprints than some of the dwellings on surrounding allotments (Ex 4, 3.1.2(b)).

• There is no FSR development standard.

• The maximum height of the proposal complies with both the height of buildings development standard for the site of 8.5m (Height of Buildings Map - Sheet HOB_010AA of LEP 2011) and the maximum wall height of 7m.

• The proposal steps up the site and is two storeys in height.

• The proposal exceeds the DCP 2011 control at D1 requiring 40% of the site to be landscaped area because the proposal includes 45.11% of the site as landscaped area (Ex F).

• Each of the buildings has a domestic scale and style.

32. I am satisfied that the height of Building D is acceptable because it complies with the height of buildings development standard for the site (cl 29(2)(a) of SEPP ARH).

33. I accept the agreement of the urban design and planning experts that the proposal includes sufficient articulation to side walls (Ex 4, 3.1.1(c)) and their agreement satisfies the contention raised by the Council that the proposal has insufficient building articulation and modulation along the side elevations.

34. I am satisfied that the proposal does not result in unacceptable amenity impacts on adjoining development following the amendments made to the proposal in Ex A, as demonstrated by the Council abandoning all the contentions in the Amended Statement of Facts and Contentions (Ex 1) relating to the amenity impacts of the proposal.

Conclusion

35. I am satisfied that the design of the development is compatible with the character of the local area because the proposal is consistent with the mixed character of the local area, including the bulk and scale of development in the low density residential zone and the medium density style of development located towards the foot of the hill close to the site.

Orders

36. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely on the architectural plans listed in condition 2(a) of the conditions of consent at Annexure A.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amendments made to the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. 2018/1166 for the demolition of all existing structures on the site and the construction of five 2-storey buildings over a split level basement carpark, containing 80 boarding rooms including 5 managers’ rooms, with associated access, communal areas and landscaping works, is approved, subject to the conditions of consent at Annexure A.

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

____________

Susan O’Neill

Commissioner of the Court

Annexure A (398 KB)

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Decision last updated: 22 January 2020