Liquid Design Pty Ltd v Strathfield Municipal Council

[2020] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation:	Liquid Design Pty Ltd v Strathfield Municipal Council [2020] NSWLEC 1126
Hearing dates:	6 and 7 November 2019
Date of orders:	17 March 2020
Decision date:	17 March 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) The Applicant is granted leave to amend its development application and to rely on amended plans. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application, as agreed or assessed, under s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The appeal is upheld. (4) Development application DA 2017/194, as amended, for demolition of existing structures, and construction of a part 4/part 5 storey boarding house with 46 lodgers rooms, a manager’s residence and a single level of basement car parking at 18 Malborough Road, Homebush West Street, is determined by the grant of consent, subject to the conditions attached at Annexure ‘A’. (5) The exhibits are returned, except Exhibits A, B, D, F and 1.
Catchwords:	DEVELOPMENT APPLICATION – construction of a boarding house – height of proposed development – whether cl 4.6 written request to vary the height development standard in Local Environment Plan is required – whether consolidation of lots is required
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Strathfield Local Environment Plan 2012
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168 Parker Logan Pty Ltd v Inner West Council [2018] NSWLEC 1339 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Strathfield Consolidated Development Control Plan 2005 Strathfield Development Control Plan No 20 – Guidelines for the Siting, Design and Erection of Developments Within the Parramatta Road Corridor Area
Category:	Principal judgment
Parties:	Liquid Design Pty Ltd (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: H Irish (Applicant) M Cottom (Respondent)   Solicitors: Conomos Legal (Applicant) Pikes and Verekers Lawyers (Respondent)
File Number(s):	2018/214688
Publication restriction:	No

Judgment

1. COMMISSIONER: Liquid Design Pty Ltd (the Applicant) has appealed the deemed refusal by Strathfield City Council (the Respondent) of its development application DA 2017/194 for the demolition of an existing structure and construction of a part 4/part 5 storey boarding house, with 46 rooms, a manager’s residence, and a single basement level car park at 18 Malborough Road St, Homebush West (the Subject Site).

2. Development Application DA 2017/194 was lodged on 20 December 2017. It was notified to adjoining neighbours, and placed on public exhibition, between 16 January and 6 February 2019. The Respondent Council received ten submissions in response to that notification and exhibition.

3. On 28 February 2019 the appeal had been the subject of a conciliation conference between the Parties pursuant to the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act).

4. The conciliation conference that followed the site inspection did not result in the resolution of the contentions between the Parties, and the conciliation conference was terminated.

5. On 31 May 2019, the Applicant sought, and was granted, leave to amend its plans. The amended plans were re-advertised by the Respondent Council between 14 June and 11 July 2019, and one additional submission was received in response to that exhibition.

6. The Applicant was granted leave by the Court to rely on further amended plans on 5 November 2019.

7. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Background

8. The Subject Site is:

1. located on the western side of Malborough Road, Homebush West, as illustrated in the Google Maps figure below. It has a regular shape, with a 15.24m frontage to Malborough Road, and a depth of 60.96m.

2. zoned R3 Medium Density Residential under the provisions of cl 2.3 of SLEP. The Applicant’s Proposed Development is a permissible form of development within that zone (see below at [17]).

9. The Applicant’s Proposed Development, as amended, now includes:

1. demolition of an existing structure on the Subject Site;

2. construction of a part 4, part 5 storey boarding house development containing 46 lodger rooms, and one manager’s residence;

3. a single level of basement car parking, including a turntable and “evolution” car stackers, for parking of 20 motor vehicles, and including two accessible spaces, as well as for 10 motorcycles; and

4. landscaping works, including deep soil landscaping at the front and rear of the Subject Site, as well as along a portion of the front southern side setback of the Proposed Development;

10. Development Application DA 2017/194 is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

11. At the commencement of the appeal the Court undertook a view of the Subject Site, during which one objector submission was received from Ms Lynn Johnson, a neighbour to the rear of the Subject Site, on behalf of herself and her husband, Mr David Johnson. She said that her concerns were:

1. the potential privacy and acoustic impacts generated by residents of the Applicant’s Proposed Development;

2. the potential stormwater and sewage impacts, because it was her experience that during storm events stormwater and sewage can travel onto her property, which is located at the rear of the Subject Site; and

3. the adequacy of the proposed car parking capacity within the Proposed Development.

Statutory Considerations

Environmental Planning and Assessment Act 1979

12. The objects of the of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

13. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(1) Matters for consideration—general

…

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

14. Section 4.15(3A) of the EP&A Act further provides that:

Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Strathfield Local Environment Plan 2012

15. Development on the Subject Site is subject to the provisions of the Strathfield Local Environmental Plan 2012 (SLEP), and under the provisions of cl 2.1 of SLEP it is zoned R3 Medium Density Residential.

16. The objectives of the R3 zone are to:

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

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

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

17. Within this R3 zone, a boarding house development, such as is proposed by the Applicant, is a permissible form of development.

18. The following further provisions of SLEP are also of relevance in this appeal:

1. Clause 4.3, that provides a 14m development standard for the height of buildings on the Subject Site, and which provides:

1. the following objectives of cl 4.3 are as follows:

(a) to ensure that development is of a height that is generally compatible with or which improves the appearance of the existing area,

(b) to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area,

(c) to achieve a diversity of small and large development options.

State Environmental Planning Policy (Affordable Rental Housing) 2009

19. The proposed development is for construction of a boarding house and so requires consideration under Part 2 Division 3 of SEPP ARH

20. The aims of SEPP ARH are:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

21. Under cl 8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevail to the extent of the inconsistency.

22. Clause 29 of SEPP ARH, which provides standards that cannot be used to refuse consent for developments the subject of the SEPP. This clause provides:

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).

23. SEPP ARH cl 30 provides standards for boarding houses, as follows:

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.

24. SEPP ARH cl 30A requires of that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Strathfield Consolidated Development Control Plan 2005

25. Development on the Subject Site is subject to the provisions of Strathfield Consolidated Development Control Plan 2005 (SDCP).

26. SDCP was adopted by Council on 4 April 2006 and came into effect on 3 May 2006, and its purpose is to:

• “Guide future development within the Strathfield local government area (LGA);

• Support the controls within the Strathfield Local Environmental Plan 2012;

• Promote development that protects and enhances the natural and built environment

• Encourage high quality development that contributes to the existing or desired future character of the area, particularly the enhancement of heritage and landscaped streetscapes;

• Protect and enhance the public domain to improve the liveability of the Strathfield LGA; and

• Ensure that development incorporates the principles of Ecologically Sustainable Development (ESD).”

27. The provisions of the following parts of SDCP are of particular relevance in this appeal:

1. Part H, which guides waste minimisation and management planning in relation to waste in areas covered by the plan;

2. Part I, which guides the provision of off-street parking facilities for development in areas covered by the plan; and

3. Part L, which guides the notification of development proposals within areas covered by the plan.

Strathfield Development Control Plan No 20 – Guidelines for the Siting, Design and Erection of Developments Within the Parramatta Road Corridor Area

28. Strathfield Development Control Plan No 20 – Guidelines for the Siting, Design and Erection of Developments Within the Parramatta Road Corridor Area (SDCP20) came into force in May 2006, and development on the Subject Site is subject to its provisions.

29. The SDCP20 was prepared to control and guide the nature, form and scale of multiple-unit housing and mixed use developments within the Parramatta Road Corridor Area.

30. SDCP20 describes its purpose as being to encourage developers and property owners to submit residential and mixed use development proposals which are attractive, appropriate for the surrounding built and natural environment, affordable and enjoyable in which to live and work. The plan also notes that:

“Development guidelines included in the plan have been prepared as advice to developers in an attempt to encourage innovative and imaginative design based on sound environmental principles and to enhance the quality of the landscape and streetscape character of the Parramatta Road Corridor Area which has a high exposure.”

31. The aim of SDCP20 is to achieve development within the Parramatta Road Corridor Area which is sympathetic and appropriate for the natural and built environment, optimises opportunities for utilising public transport, acceptable to the community and economically feasible.

31. Section 1.3 of SDCP20 provides objectives for a range of controls within Section 2 of the plan, including in relation to:

1. Location;

2. Accessibility;

3. Public domain;

4. Streetscape;

5. Landscaped open space; and

6. Building form.

33. Section 2.2 of SDCP20, concerning building footprints, is of relevance in this appeal, and it provides as follows:

“Developments within the Corridor Area are to conform generally with the building footprints as illustrated on Figures 8 to 10 of this DCP. In order to establish lot consolidation patterns relating to building footprints, a Consolidation Masterplan is illustrated in Figures 11 to 13.

Basement Setbacks:

The outer walls of basements shall comply with the setbacks required in this Section.

Setback from Easements:

Sydney Water Corporation requires that all buildings and structures be at least one metre from any easement or public sewer main. Exceptions may be considered on their merit. In all cases, development must comply with the Corporation’s requirements for building over or adjacent sewer mains.”

34. Section 2.3 of SDCP20 concerns building height, and provides that buildings within the Corridor Area are to comply with the height limits illustrated on Figures 8 to 10 of this plan.

35. Figures 10 and 13, which are referred to in sections 2.2 and 2.3, along with Figure 17 of SDCP20 provide guidance to development of the Subject Site and for properties within its vicinity, as follows:

1. Figure 10, see below, provides:

1. a proposed L-shaped building footprint, circled in red, for development on the Subject Site as part an envisaged consolidation of the Subject Site with adjoining lots at 14 and 16 Malborough Road;

2. that buildings on the Subject Site should have a four-storey building height.

2. the building footprint proposed for the Subject Site as, illustrated within Figure 10, was envisaged to be facilitated by a consolidation lot pattern illustrated in Figure 13 of SDCP20 (see below), which suggested that the Subject Site should be consolidated with the lots at 14 and 16 Malborough Road. These three lots are circled in red in the figure below.

3. Figure 17 of SDCP20, see below) provides guidance on the design of buildings in the context of a typical residential street, and is applicable to development on the Subject Site.

Contentions

36. At the commencement of the hearing the Applicant sought further leave to rely on amended landscape plans which had not been the subject of leave granted by the Court on 5 November 2019, and that further leave was granted.

37. The Parties also agreed that certain matters that had been in contention between them had been resolved through the Applicant’s provision of amended plans, and through the recommendations of the Parties’ expert planners and expert traffic engineers (see below at [46]) within the joint expert reports they had prepared, including:

1. a contention that insufficient detail had been provided to address the potential for adverse visual and acoustic privacy impacts from the elevated areas of communal open space and common circulation to neighbouring properties;

2. the potential loss of sunlight to kitchens of the adjacent building at 20 – 26 Malborough Road which had been said to be unreasonable;

3. the compliance of the design of accessible parking with Australian Standard AS2890.6:2009; and

4. a requirement for a BASIX certificate consistent with the Applicant’s amended plans, which was now available and tendered as evidence at the hearing.

38. The Parties further agreed that:

1. the floor space ratio of the Proposed Development was 1.83:1 and so compliant with the provisions of SEPP ARH which established an allowable FSR for a boarding hose of the Subject Site of up to 1.95:1, reflecting the 0.5:1 bonus FSR provided under cl 29(1) of SEPP ARH. Consistent with the provisions of SEPP ARH, the compliant FSR of the Proposed Development cannot be used as a basis for refusal of the Proposed Development.

2. a 1.52m non-compliance of the Proposed Development with the 14m height of building development control in cl 4.3 of SLEP, did not require consideration of a written request under and cl 4.6 of SLEP because:

1. by reason of cl 8 of SEPP ARH, the provisions of SEPP ARH prevail to the extent of any consistency between SEPP ARH and the provisions of SLEP;

2. they agreed with the line of authority provided in the judgments of Moore J and Smithson C in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 and Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168, respectively, in that the provisions of SEPP ARH, including those in cl 29(4) (see above at [22]), provide a source of power for a consent authority to consent a boarding house development, such as is proposed by the Applicant, whether or not the development complies with the standards set out in subclause (1) or (2) of cl 29. Those standards include, under cl 29(2)(a), building height.

3. they did not embrace a contrary interpretation of cl 29(4) of SEPP ARH proposed by Gray C in Parker Logan Pty Ltd v Inner West Council [2018] NSWLEC 1339.

39. For caution, the Applicant has submitted a written request under the provisions of cl 4.6 of SLEP to vary the height of buildings development standard applicable to the Subject Site under cl 4.3 of SLEP. Having considered the Applicant’s cl 4.6 written request, I am satisfied, that, if it were required, that the written request is well founded because:

1. the Proposed Development is consistent with the objectives of the R3 zoning of the Subject Site (see above at [16]), as it would provide for the housing needs of the community, and it would add to the variety of housing types available, within a medium density residential environment;

2. compliance with the standard is unreasonable and unnecessary because the objectives of the building height standard (see above at [18(1)(a)]) are achieved notwithstanding the non-compliance of the Proposed Development. More specifically, the Proposed Development:

1. is of a height that is generally compatible with the appearance of the existing area, and in particular with the street presentation of the development to the south of the Subject Site at 20–26 Malborough Road;

2. will lead to the optimum sustainable capacity height for the area, noting that consolidation with other lots is not possible, and the height exceedance of the Proposed Development derives in large part from the topography of the Subject Site which has a fall from east to west that exceeds 2m; and

3. will contribute to the achievement of a diversity of small and large development options within the R3 zone in which it is located.

3. there are sufficient environmental planning grounds to justify contravening the development standard. More specifically:

1. as noted previously, the presentation of the building height exceedance to Malborough Road, is small, and would be imperceptible to a passing observer, as it is aligns with the parapet of an adjacent building;

2. the Proposed Development includes a step form in its height in response to the greater than 2m fall in levels across the east to west slope of the Subject Site, which results in a height non-compliance prior to the step;

3. the height non-compliance improves the amenity of the Proposed Development for its future residents as it facilitates a modest improvement in floor to ceiling height within boarding house rooms;

4. while the height non-compliance does result in some overshadowing impacts on the residential flat building to the south, all apartments in that adjoining building continue to receive more than 3 hours of solar access to their living spaces at mid-winter in compliance with controls in section 2.4.2 of Part C of the SDCP;

5. I am satisfied that the environmental planning grounds identified by the Applicant assist the achievement of the objects of the EP&A Act, as they will promote both the orderly and economic use and development of land, and the delivery and maintenance of affordable housing.

4. is in the public interest because it is consistent with the objectives of the building height standard in cl 4.3 of SLEP, and the objectives for development within the R3 zone in which the Proposed Development would be carried out.

40. The Respondent further acknowledged that the jurisdictional preconditions to the grant of consent within cl 6.2 of SLEP, concerning earthworks, and cl 6.4 of SLEP, concerning essential services, had been satisfied by the Applicant’s Proposed Development.

41. The Applicant confirmed that the proposed Development required the concurrence of the New South Wales Roads and Maritime Services (NSW RMS), now part of Transport New South Wales, and that it accepted the proposed General Terms of Approval proposed by NSW RMS for the Proposed Development. These had been incorporated into the draft conditions of consent provided by the Parties at the hearing.

42. As a consequence of the above, the principle remaining contentions in this appeal fell into the following areas:

1. whether the height of the Proposed Development was acceptable having considered any potential impacts that may arise from the part 5 storey building height element which the Respondent said was inconsistent with the provisions of SDCP;

2. whether the Applicant’s Proposed Development on only 18 Malborough Road, and without the consolidation with the lots at 14 and 16 Malborough Road, as envisaged under the provisions of SDCP20, is acceptable;

3. whether the character of the Proposed Development is consistent with the provisions of cl 30A of SEPP ARH, which requires that:

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.

4. whether the building footprint, including the proposed basement car park is acceptable given provisions within SDCP20 concerning setbacks and deep soil areas;

5. whether the Proposed Development complies with other relevant provisions of SDCP and SDCP 20.

Questions for resolution in this appeal

43. Having considered the submissions of the Parties above (at [37] to [41]) the remaining contentions in this appeal are considered in relation to the following questions:

1. are potential impacts of the Proposed Development’s non-compliance with the 4-storey height control in SDCP20 acceptable?

2. is the Applicant’s non-compliance with the consolidation pattern envisaged within SDCP20 acceptable?

3. is the design of the Proposed Development compatible with the character of the local area?

4. is the building footprint, including the proposed basement car park, of the Proposed Development acceptable, given provisions within SDCP20 concerning setbacks and requirements for areas of deep soil?

5. does the Proposed Development comply with other relevant provisions of SDCP and SDCP20?

44. In short, the answer to each of these questions is that, in my assessment:

1. any potential impacts that may arise from the building’s proposed non-compliance with the 4 storey height are minor, and acceptable on the basis of a merits consideration, in the circumstances of the case, and I have already noted that the height of the Proposed Development does not warrant refusal on the basis of the Applicant’s non-compliance with the 14m height of building development control in cl 4.3 of SLEP, for reasons provided above (see [39]);

2. the Applicant’s proposal to develop the lot on 18 Malborough Road without consolidation with the lots at 14 and 16 Malborough Road, notwithstanding the provisions of SDCP20, is acceptable in the circumstances of the case;

3. the design of the development is compatible with the character of the local area as required under cl 30A of SEPP ARH;

4. the building footprint, including the proposed basement car park, of the Proposed Development is acceptable including in relation to the provisions of deep soil plantings; and

5. the Proposed Development does comply with all other relevant provisions of SDCP and SDCP 20.

45. I provide my reasons for each of these findings below.

46. The Court was assisted in its consideration of these questions by the expert written evidence and oral testimony of the expert planners:

1. Mr Peter Smith, for the Applicant, and

2. Mr McNamara, for the Respondent.

47. The Court was also assisted by the expert written evidence of the traffic engineering experts, Mr Matthew McCarthy, for the Respondent, and Mr Oleg Sannikov, for the Applicant.

48. Their expert traffic engineering joint report, and a submission during the hearing, assisted in resolution of matters relating to traffic and parking. These experts were not required for cross examination at the hearing.

Is Proposed Development’s non-compliance with the 4-storey height control in SDCP20 acceptable?

49. Development on the Subject Site is subject to a 4 storey height control under the provisions of Part 2.3 and Figure 10 of SDCP20 (see above at [34]), but part of the Proposed Development contains an element that has a 5 storey height, in breach of the SDCP20 control.

50. As identified above at [14], s 4.15(3A) of the EP&A Act requires that if the provisions of a development control plan sets standards with respect to an aspect of the development and the development application does not comply with those standards, the consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

51. While Part 1.3 of SDCP20 provides objectives for a number of the development controls established within Part 2 of that plan, it provides no specific objectives in relation to the 4 storey building height control in SDCP20.

52. In the absence of one or more specific objectives for the building height control in SDCP20, I have considered whether the Applicant’s Proposed Development, and specifically the 5 storey element, achieves the broader objectives of SDCP20, as expressed in its aim (see above at [31]).

53. As discussed above at [39(3)], I have already accepted that that there are sufficient environmental planning grounds to support contravention of the 14m height of building development standard applicable to development on the Subject Site under the provisions of cl 4.3 of SLEP.

54. Also, as noted at [39(3)(c)], while the height non-compliance does result in some overshadowing impacts on the residential flat building to the south, all apartments in that adjoining building continue to receive more than 3 hours of solar access to their living spaces at mid-winter, in compliance with controls in section 2.10.2 of SDCP20.

55. Further, I have also accepted (see above at [39(2)(a)]) that the presentation of the Proposed Development at its frontage to Malborough Road is of a height that is generally compatible with the appearance of the existing area, and in particular with the street presentation of developments on either side of the Subject Site.

56. As a consequence of my considerations above at [53] to [55], I am satisfied that the 5 storey building height element of the Proposed Development achieves the aim of SDCP20, in that it:

1. is sympathetic, and appropriate, for the built environment in which it would be located;

2. is economically feasible, as it forms part of a development application for which consent is sought;

3. it would, in my assessment, be acceptable to the community as it does not give rise to any further breach of planning controls within either SDCP or SLEP, and does not contribute to the concerns expressed by objectors to the development (see above at [11]) particularly as the 5 storey element of the proposed Development is at its frontage to Malborough Road, and would not give rise to any potential overlooking or acoustic impacts on neighbouring properties to the rear; and

4. is neutral with respect to the aim of optimising opportunities for utilising public transport.

57. I conclude that the 5 storey element of the Proposed Development is a reasonable alternative solution that should be allowed, consistent with the provisions of c 4.15(3A) of the EP&A Act, because it achieves the objects of the building height control in SDCP20, to the extent that such objectives can be discerned from that plan, and because, on merit, it:

1. is of a height that is generally compatible with the appearance of the existing area;

2. is unlikely to give rise to any significant impacts; and

3. is otherwise compliant with the controls in SDCP, SDCP20 and SLEP.

Is the Applicant’s non-compliance with the consolidation pattern envisaged within in SDCP20 acceptable?

58. During the hearing, and based on evidence tendered by the Applicant, the Respondent accepted that satisfactory efforts had been made by the Applicant, including by way of reasonable financial offers, to achieve consolidation of the Subject Site with the lots at 14 and 16 Malborough Road, as envisaged under the provisions of SDCP20, and that these efforts had not succeeded.

59. As a consequence, the Respondent agreed that it was reasonable that development on the Subject Site could proceed independent of any development that might be proposed for the lots at 14 and 16 Malborough Road.

60. The expert planners had agreed in their evidence that the east to west elongated form of the Proposed Development is generally consistent with the elongated element of a larger building, envisaged for the Subject Site under Figure 10 of SDCP20.

61. In these circumstances, and as identified by the Applicant at the hearing, the only remaining aspect of the lot consolidation contention requiring resolution in this appeal is whether the Proposed Development unreasonably constrains development on the adjacent lots at 14 and 16 Malborough Road.

62. At the hearing, the Applicant tendered as evidence plans it had prepared illustrating how development on the adjacent lots at 14-16 Malborough Road might be achieved.

63. The joint expert report of the planners also included, as an “Annexure 3”, two conceptual options, drafted by Mr Smith, to demonstrate that development on the lots at 14 and 16 Malborough Road could be achieved in a manner that achieved compliance with the solar access controls within section 2.10.2 of SDCP20.

64. Having considered the Applicant’s plans referred to above at [62], and those prepared by Mr Smith (see above at [63]), along with the evidence of the expert planners, I accept that the plans do demonstrate that development of the lots at 14-16 Malborough Road can be achieved in a manner that is consistent with the character of the area and that can be compliant with the solar access requirements of section 2.10.2 of SDCP20.

65. I conclude that the Applicant’s non-compliance with the consolidation pattern envisaged within Figure 13 in SDCP20 does not warrant refusal of the Applicant’s Proposed Development, and is acceptable.

Is the design of the development compatible with the character of the local area as required under cl 30A of SEPP ARH?

66. Clause 30A of SEPP ARH requires that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

67. In Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (referred to hereafter as Project Venture) Senior Commissioner Roseth, as he was then, set down (at [22] to [24]) a planning principle in relation to the compatibility of developments in an urban environment, as follows.

“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?”

68. I have previously concluded that the physical impacts of the Proposed Development on surrounding development are acceptable, most notably in relation to potential impacts on solar access to units in the adjoining property at 20 Malborough Road.

69. In assessing whether the Proposed Development’s appearance is in harmony with the buildings around it, and the character of the street, the former Senior Commissioner (at [26] and [29] of Project Venture) suggested that factors to be considered should include the Proposed Development’s height, setbacks and landscaping.

70. During the hearing, the expert planners agreed that the catchment for assessing the compatibility of the Proposed Development with the character of the local area was that stretch of the west side of Malborough Road between its corner with Mandemar Street and the building at 4-6 Malborough Road. This area was inspected by the Court during the site view.

Building height

71. I have previously found (see above at [39]) that the height of the Proposed Development is acceptable in the context of both its exceedance of the height of building development standard in cl 4.3 of SLEP, and in relation to its breach of the 4 storey height control in SDCP20. In doing so, I noted that:

1. the height of the Proposed Development at its frontage to Malborough Road was generally compatible with the appearance of the existing area, and in particular with the street presentation of the development to the south of the Subject Site at 20 Malborough Road (see above at [39(2)(a)]); and

2. the presentation of the building height exceedance to Malborough Road, is small, and would be imperceptible to a passing observer, as it is aligns with the parapet of an adjacent building at 20 Malborough Road (see above at [39(3)(a)]).

72. Within their joint report, Mr Smith, for the Applicant, had said that, in his opinion, the height of the Proposed Development was compatible with the character of the local area. Mr McNamara, for the Respondent, did not identify the height of the Proposed Development as a matter of concern in his assessment of its compatibility with the character of the local area.

73. Based on my findings above, and the evidence of the expert planners, I further conclude that the height of the Proposed Development is compatible with the character of the local area.

Landscaping

74. The Proposed Development includes substantial landscaping within the front setback, on either side of the entry path, in the rear setback of the Proposed Development, as well as along a forward section of the southern side setback towards the front of the Proposed Building and adjacent to the building at 20 – 26 Malborough Road.

75. The expert planners, Mr Smith and Mr McNamara, agreed that the proposed landscaping within the front setback is appropriate and contributes to the built form of the Proposed Development.

76. The expert planners differed in their assessment of the landscaping proposed for the side setbacks. Within the joint report of the expert planners, Mr McNamara had identified that the design of the Proposed Development, and in particular the extent to which the built form, including the basement, extended to the side boundaries of the Subject Site, limited the opportunity for landscaping, and in particular deep soil landscaping. Mr McNamara said that, in his opinion, the paucity of landscaping opportunities in the side setbacks of the Proposed Development was not compatible with the character of the local area.

77. In contrast, Mr Smith expressed the opinion that the landscaping of the Proposed Development was compatible with the character of the local area, as it provided deep soil planting opportunities in the front setback and this was consistent with the landscaping treatments of the adjoining property at 20 – 26 Malborough Road.

78. During the hearing the Applicant submitted that the side landscaping treatments of other residential buildings within Malborough Road varied, ranging between some exhibiting no side setback landscaping, others with some limited side setback landscaping, and providing more substantial side setback landscaping, including some trees.

79. Having considered the evidence of the expert planners, and the submissions of the Parties, I have concluded that the landscaping within the Proposed Development is compatible with the character of the local area because:

1. it includes substantial landscaping within the front setback which is typical of other multi-storey residential developments in Malborough Road;

2. it includes some landscaping within its southern side setback, which is necessarily limited by the constrained width of the Subject Site, and by the challenges that this presents to development on the lot in isolation of consolidation with the lots at 14 and 16 Malborough Road; and

3. I agree with the submission of the Applicant that the landscaping treatments within the side setbacks of other developments in Malborough Road exhibits significant variability, and the absence of substantial landscaping treatments in the side setbacks of the Proposed Development does not offend the sense of character within the local area, and is, in view, appropriate for a constrained site such as is the case at 18 Malborough Road.

80. Based on my findings above, I conclude that the landscaping included within the Proposed Development is compatible with the character of the local area.

81. I note, as submitted by the Applicant, that there are no minimum landscaping requirements within SEPP ARH, but that cl 29(2)(b) does require that a consent authority must not refuse consent to development to which this Division applies if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.

82. Based on my conclusion above (at [80]), I further conclude that the landscape treatment of the front setback area is indeed compatible with the streetscape in which the Proposed Development is to be located, and consent cannot be refused on the basis of the landscaping proposed for the front setback.

Setbacks

83. Within the joint report of the expert planners:

1. Mr McNamara, for the Respondent, had stated that, in his opinion,

1. the proposed setbacks to the adjoining building at 20 – 26 Malborough Road, and the setback that would be afforded to future developments on 14 and 16 Malborough Roads, were not appropriate.

2. the proposed setbacks impacted on the desired rhythm of the streetscape, which he said was “supplemented by significant landscape elements within the existing setbacks and alongside boundaries”.

2. Mr McNamara also stated that:

“The construction of 5 storey buildings occupying 80% of the site width and extending 90% of the site depth is not harmonious with the existing character of the precinct, and does not promote appropriate massing or spacing between buildings contemplated in the Masterplan.”

3. Mr Smith, for the Applicant stated that, in his opinion, the provision of landscaped side setbacks with deep soil plantings is not a requirement of SDCP20, and nor is it characteristic of recent developments.

84. Earlier in this judgement I have considered several matters of relevance to the side setbacks of the Proposed Development and their relationship to its compatibility with the character of the local area, including that:

1. I accept the evidence tendered at the hearing that satisfactory efforts had been made, by way of reasonable offers, to acheive the consolidation of the Subject Site with the lots at 14 and 16 Malborough Road;

2. as consolidation with the adjoining lots to the north was not possible, it was reasonable to expect that the Applicant should be able to develop the Subject Site in isolation of those adjoining lots;

3. because the Subject Site can be developed without consolidation, it is not reasonable to expect that the form of development the Masterplan within SDCP20 could be achieved;

4. development of the Subject Site without consolidation will be constrained by the nature of the site’s isolation and its single lot dimensions;

5. there is a variety of side setback treatments in evidence in the various developments along Malborough Road; and

6. the modest landscaping treatments proposed within the southern side setback of the Proposed Development adjacent to the building at 20 Malborough Road is, in my view, compatible with the character of the local area.

85. With these findings in mind, and as there are no minimum side setbacks controls provided within either SEPP ARH or SDCP20, other than in respect to basement setbacks, I am satisfied that the setbacks included in the design of the Proposed Development are acceptable and are compatible with the character of the local area.

Conclusion on the compatibility of the Proposed Development with the character of the local area

86. Based on my findings and conclusions above, I am satisfied that the height, landscaping and side setbacks of the Proposed Development are acceptable, and that the potential impacts of the Proposed Development are also acceptable.

87. I conclude that the character of the proposed Development is compatible with the character of the local area, and that the provisions of cl 30A of SEPP ARH are satisfied.

Is the building footprint, including the proposed basement car park, of the Proposed Development acceptable given provisions within SDCP20 concerning setbacks and requirements for areas of landscaping including deep soil?

88. Section 2.2 of SDCP provides as follows in relation to the setbacks required on the Subject Site including in relation to basements:

“Developments within the Corridor Area are to conform generally with the building footprints as illustrated on Figures 8 to 10 of this DCP. In order to establish lot consolidation patterns relating to building footprints, a Consolidation Masterplan is illustrated in Figures 11 to 13.

Basement Setbacks:

The outer walls of basements shall comply with the setbacks required in this Section.

Setback from Easements:

Sydney Water Corporation requires that all buildings and structures be at least one metre from any easement or public sewer main. Exceptions may be considered on their merit. In all cases, development must comply with the Corporation’s requirements for building over or adjacent sewer mains.”

89. The Applicant’s proposed development includes:

1. development of the Subject Site in isolation of consolidation with the lots on 14 and 16 Malborough Road as envisaged under the provisions of SDCP20, for reasons already addressed in this judgment;

2. an elongated building footprint on a broadly east to west alignment on the Subject Site that is consistent with the elongated built form envisaged with Figure 10 of SDCP, which is the so-called Masterplan. This built form is now located, by necessity, wholly within the Subject Site whereas in Figure 10 of SDCP20 it was located across boundary of the Subject Site with 16 Malborough Road; and

3. a basement car park proposed to be built to the side boundaries of the Subject Site, limiting opportunities for deep soil plantings in the side setbacks of the Proposed Development;

90. The Respondent had contended that the Proposed Development was inconsistent with the provisions of section 2.2 of SDCP20 as this required that the outer walls of the basement car park should be contained within the building footprint.

91. The Respondent’s expert planner, Mr McNamara had stated within the expert planners’ joint report that, if the density of the Proposed Development were to be reduced, this would facilitate a reduction in the parking demand generated by the proposed boarding house, thus allowing for a reduction in the width of the basement car park, and for improved landscaping outcomes in the side setbacks, which he assessed to be required.

92. Mr Smith, for the Applicant, stated that, in his opinion, the only requirements of section 2.2 of SDCP20 were that any basement wall should be setback at least one metre from any easement or public sewer main owned by, or to the benefit of, Sydney Water, and in the case of the Proposed Development it did not constrain the basement from extending to the side boundary.

93. In closing submissions, the Applicant submitted that the provisions of section 2.2 of SDCP20 only required that any basement wall should be setback from an easement or a public sewer owned by Sydney Water, and that there is nothing in the provisions of SDCP20 that would confine the dimensions of the basement car park to the footprint of the building within the Proposed Development.

94. Having considered the evidence of the experts and the submissions of the Parties, I agree with the submission of the Applicant, supported by the evidence of Mr Smith, that the dimensions of the basement car park can extend to the boundary of the Subject Site, other than in circumstances where they would require it to remain at a distance of one metre from the easements and public sewer assets of Sydney Water.

95. I conclude that the building footprint, including the proposed basement car park, of the Proposed Development is acceptable given provisions of SDCP20 in relation to setbacks and landscaping.

Does the Proposed Development comply with other relevant provisions of SDCP and SDCP 20?

96. Based on the framing of the contentions by the Respondent, and on the evidence at the hearing, I am satisfied that all other relevant provisions of SDCP and SDCP20 have been satisfied, including in relation to:

1. private open space, in relation to which the provisions of section 2.9 of SDCP20 are overridden by the provisions of cl 29(2)(d) of SEPP ARH, with which the proposed Development complies; and

2. visual and acoustic privacy, and specifically the provisions of section 2.8 of SDCP20, which have been addressed though the Applicant’s amended plans, and the design of the building and treatments applied thereto.

Conclusions

97. Having considered the submissions of the Parties, and the evidence of the engineering experts, I am satisfied that:

1. the 5 storey element of the Proposed Development is reasonable alternative solution that should be allowed;

2. that the Applicant’s non-compliance with the consolidation pattern envisaged within Figure 13 in SDCP20 is acceptable, and does not warrant refusal of the Applicant’s Proposed Development

3. the character of the proposed Development is compatible with the character of the local area, and that the provisions of cl 30A of SEPP ARH are satisfied;

4. the building footprint, including the proposed basement car park, of the Proposed Development is acceptable given provisions of SDCP20 in relation to setbacks and landscaping; and

5. the Proposed Development satisfies all other relevant provisions of SCP and SDCP20.

98. Based on these considerations, I have concluded that:

1. The Subject Site is suitable for the Proposed Development;

2. the Proposed Development is in the public interest; and

3. the Applicant’s development application for the demolition of existing structures and the construction of a boarding house with basement car parking, at 18 Malborough St, Homebush West, should be approved, subject to the conditions.

Orders

99. The orders of the Court are:

1. The Applicant is granted leave to amend its development application and to rely on amended plans.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application, as agreed or assessed, under s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development application DA 2017/194, as amended, for demolition of existing structures, and construction of a part 4/part 5 storey boarding house with 46 lodgers rooms, a manager’s residence and a single level of basement car parking at 18 Malborough Road, Homebush West Street, is determined by the grant of consent, subject to the conditions attached at Annexure ‘A’.

5. The exhibits are returned, except Exhibits A, B, D, F and 1.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (351 KB)

**********

Decision last updated: 20 March 2020