Maham Group Pty Ltd v Blacktown City Council

[2019] NSWLEC 1168

Land and Environment Court

New South Wales

Medium Neutral Citation:	Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168
Hearing dates:	29-30 January 2019 and 7 March 2019;Submissions filed 14 and 21 March 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	(1)   The applicant is given leave to amend the development application and rely upon the plans listed at condition 2.1.1 in Annexure “A”. (2) The applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3)   The appeal is upheld. (4)   Development application DA-17-02408 for a boarding house at 35 Kildare Road, Blacktown is approved subject to the conditions set out in Annexure “A”. (5)   The exhibits are returned other than Exhibits D, E, F, H and 1.
Catchwords:	DEVELOPMENT APPLICATION: boarding house; breach of LEP height control; whether cl 4.6 written request required; isolated site; consideration of local character; design excellence; requirements of a Plan of Management; waste requirements; gradient of basement ramp; disputed conditions
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324 Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189, Elcheikh v Cumberland Council [2018] NSWLEC 1165, Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Koutsos & Anor v Manly Council [2016] NSWLEC 1121 Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Torr & Torr Realty v Marrickville Council [2012] NSWLEC 1288
Texts Cited:	Australian Standards AS2890.1 and AS2890.2 Better Practice Guide for Waste Management in Multi-unit Dwellings (DECC) 2008 Blacktown Development Control Plan 2015
Category:	Principal judgment
Parties:	Maham Group Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant)   Solicitors: Conomos Legal (Applicant) D Loether, Bartier Perry (Respondent)
File Number(s):	2018/386412
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal, pursuant to the provisions of then s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act1979 (EPA Act), is against the deemed refusal of Blacktown City Council (the Council) of Development Application DA-17-02408 (the application) for a boarding house at 35 Kildare Road, Blacktown (the site).

2. The application was lodged in September 2014. As lodged, the development comprised a 7 storey boarding house with 54 boarding rooms, a manager’s dwelling and a basement car park for 13 cars. A floor space ratio (FSR) of 2.2:1 was proposed.

3. The application was advertised. No submissions were lodged.

4. In response to contentions raised in the Statement of Facts and Contentions (SFC) filed by the Council, and considered during conciliation, the application was amended with the leave of the Court. As amended, the boarding house was reduced to 6 residential floors with the seventh storey comprising rooftop communal uses only. It contained 51 boarding room, a manager’s dwelling and an enlarged basement with 24 car spaces. A reduced FSR of 1.99:1 was proposed.

5. The amended proposal addressed a number of Council contentions. Remaining contentions contained in the Council’s Amended SFC (Exhibit 1) related to height, design excellence, the character of the local area, the adequacy of the proposed Plan of Management, and the isolation of an adjoining site. A number of engineering concerns also remained associated with waste collection, basement ramp design and stormwater management.

6. Expert Joint Reports were subsequently filed with the Court dealing with the remaining contentions. A number of these reports recommended amendments to the plans.

7. The hearing commenced onsite with a view of the site and surrounds with the parties and their experts.

8. With the agreement of the parties, the hearing was adjourned to enable the engineering experts to address issues with the ramp gradient to the basement as a consequence of changes to Australian Standard (AS) 2890.1 (being AS2890.2) and to consider the requirements for onsite stormwater drainage. The BCA experts also considered fire requirements.

9. Following the adjournment, the BCA experts advised they had agreed on required fire measures. However, the engineering contentions remained.

10. Leave was subsequently sought and granted to further amendments to the plans arising from the additional conferral. The amendments included changes to the driveway levels and therefore overall levels. The applicant agreed to pay costs pursuant to s 8.15(3) of the EPA Act.

11. These plans (Exhibit H) comprise the application as amended.

Site and Planning Context

12. The site is described as Lot C in DP366967 and is located on the northern side of Kildare Road. It comprises a relatively narrow rectangular lot with a frontage of 15.24m to Kildare Road, a depth of 45.72m and a total area of 696.77m². The site currently contains an older style single storey dwelling house with a detached garage and shed as well as three trees; two in the rear yard and four in the front setback area.

13. The site is within 500m of the Blacktown railway station and shopping centre. Surrounding development, including on the opposite site of Kildare Road, is predominantly dwelling houses. However, in the immediate vicinity of the site on the same side of Kildare Road, the area is in transition from lower scale to higher density development. Wrapping around the site to the north and west on a battleaxe lot is a large, recently constructed 5 storey seniors’ residential care facility (referred to as the Opal facility), with the building component of the facility effectively to the rear of the site, and the facility’s open hard stand parking area immediately adjoining the site to the west at 37 Kildare Road.

14. Further to the west, a site has been approved for a 6 storey residential flat building (RFB) with basement parking at 39-43 Kildare Road (referenced as 39 Kildare Road or the approved adjoining RFB). Another multi-storey RFB has been recently constructed further west on the corner of Kildare Road and Allawah Street.

15. To the east, the site is adjoined by 35A Kildare Road which contains a single storey place of public worship (a Ukranian Orthodox church) with a roof dome feature (to the equivalent height of 4 storeys). The church is situated on a lot of similar size and dimensions to the appeal site. East of the church are low scale community buildings.

Relevant Planning Controls

16. The application was lodged under the provisions of the Blacktown Local Environmental Plan 2015 (the LEP).

17. The site is located within the R4 High Density zone and a boarding house is a permissible use, with consent, in that zone. The objectives of the R4 zone are as follows:

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

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

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

• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

• To permit residential flat buildings in locations close to public transport hubs and centres.

18. The maximum height permissible for the site under the provisions of cl 4.3 of the LEP is 20m. The objectives for the height standard at subcl 4.3(1) are as follows:

(a) to minimise the visual impact, loss of privacy and loss of solar access to surrounding development and the adjoining public domain from buildings,

(b) to ensure that buildings are compatible with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown,

(c) to define focal points for denser development in locations that are well serviced by public transport, retail and commercial activities,

(d) to ensure that sufficient space is available for development for retail, commercial and residential uses,

(e) to establish an appropriate interface between centres, adjoining lower density residential zones and public spaces.

19. The parties agreed that the development exceeded the LEP height control but that the LEP does not stipulate a maximum FSR.

20. Variations to the height standard can be considered under cl 4.6 of the LEP, relevant provisions being as follows:

4.6 Exceptions to development standards

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence…

21. Clause 7.7 of the LEP also applies as follows

7.7 Design excellence

(1) The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Blacktown.

(2) This clause applies to land identified as “Design excellence” on the Design Excellence Map.

(3) Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) whether the development detrimentally impacts on view corridors,

(d) whether the development detrimentally impacts on any land protected by solar access controls established in the Blacktown Development Control Plan,

(e) the requirements of the Blacktown Development Control Plan,

(f) how the development addresses the following matters:

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements,

(x) the impact on, and any proposed improvements to, the public domain.

(5) In this clause:

Blacktown Development Control Plan means the Blacktown Development Control Plan 2006, as in force on the commencement of this Plan.

22. In addition to the LEP provisions, the application is required to be assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP).

23. Clause 6 of the ARH SEPP refers to affordable housing as follows:

6 Affordable housing

Note. The Act defines affordable housing as follows:

affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.

(1) In this Policy, a household is taken to be a very low income household, low income household or moderate income household if the household:

(a) has a gross income that is less than 120 per cent of the median household income for the time being for the Greater Sydney (Greater Capital City Statistical Area) (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or

(b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme.

(2) In this Policy, residential development is taken to be for the purposes of affordable housing if the development is on land owned by the Land and Housing Corporation.

24. Clause 8 of the ARH SEPP provides:

8. Relationship with other environmental planning instruments

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

25. Of particular relevance to this appeal are the following provisions at cl 29 of the ARH SEPP:

29   Standards that cannot be used to refuse consent

(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,

…

(3) …

(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. Under cl 30A of the ARH SEPP, the consent authority cannot consent to the development of a boarding house under the ARH SEPP “unless it has taken into consideration whether the design of the development is compatible with the character of the local area”.

27. The development is also required to have regard to the applicable provisions of the Blacktown Development Control Plan 2015 (the DCP).

Height

28. The Council submitted that the height of the development was excessive in the context of the site and its locality.

29. The proposed development exceeds the maximum permissible height for the site of 20m under the LEP at cl 4.3. The expert planners, Mr Kennan for the applicant and Mr Apps for the Council, in their first expert Joint Report (Exhibit 3) agreed that the only height exceedence was associated with the lift overrun. This was an exceedance of 620mm. They also agreed that this overrun would not be visible from the street but would be visible from the upper levels of the Opal facility and the approved RFB at 39 Kildare Road, noting however that this latter development also had lift overruns exceeding the height limit.

30. The planners also agreed that the Council has in the past agreed to non-compliances with the height standard where they relate only to a lift overruns, including in the recently approved RFB at 39 Kildare Road. The height of the lift overrun was therefore consistent with other approved development in the locality. No merit issues associated with the height breach were raised by Mr Apps.

31. The planners also considered that a cl 4.6 justification request for the non-compliance with the height standard was not required because the non-compliance can be dealt with pursuant to cl 29(4) of the ARH SEPP. Nevertheless, a cl 4.6 written request was submitted (Exhibit E), in the event that the Court determined otherwise.

32. The cl 4.6 request specifically lists the following as 'sufficient environmental planning grounds' to support the height breach:

1. The site is narrow and isolated and has no real development potential other than for a new generation boarding house which provides for the needs of the community within a high density residential environment;

2. The development assists in the provision of a range of housing types within the high density residential environment of the site; and

3. The development would revitalise the site through development whilst ensuring that the design does not adversely affect the amenity of the locality.

33. The request also addresses the objectives of the zone, namely that the development: provides for the housing needs of the community in an area with access to services; ensures a high level of amenity is achieved and maintained; and provides a variety of housing types in the area.

34. There was no dispute by the planning experts that the objectives of the zone were met, as claimed in the request, nor was this a contention raised by the Council.

35. The request also addresses the objectives of the height standard stating that the development: facilitates a new generation boarding house in a high density residential environment; minimises the visual impact of the built form within this high density context; minimises impacts on the amenity of adjoining high density development in terms of solar access; will not disrupt views or result in any loss of privacy; and provides a building form both consistent and compatible with the desired character including the existing high density residential development adjoining the site.

36. In terms of whether the height standard was unreasonable or unnecessary, the request notes that the lift overrun is the only non-compliant element and is modest in its breach and would not be visible from the public domain but only from the upper levels of the approved RFB at 39 Kildare Road and the Opal facility. Further, the Council has in the past agreed to non-compliances with the height standard where it relates only to a lift overrun including on the RFB at 39 Kildare Road and the height was consistent with approved development in the locality. Therefore the height of the development was compatible with the desired future character of the area with much of the high density development in the locality exceeding the 20m height limit

33. Finally, the request claims that the development would be in the public interest because it would provide a planning outcome consistent with the objectives of the standard and of the zone in which it is located.

34. The legal representatives for the parties disagreed however, as to whether a cl 4.6 variation request is required for the height breach.

The Council’s position on clause 4.6

39. Mr Loether, lawyer for the Council, submitted that a cl 4.6 variation request was required to breach the LEP permissible maximum height in order for consent to be lawfully granted to the application.

40. Mr Loether cited two authorities that have considered the question of what is perceived to be an inconsistency between cl 29(4) of the ARH SEPP and cl 4.6 of an LEP. His position was that there is no inconsistency and therefore cl 8 of the ARH SEPP does not apply.

41. The first authority referenced was Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 (Panarea Investments), from which the Council arrived at its position that the Court should, in exercising its discretion pursuant to cl 29(4) of the ARH SEPP, adopt ‘a clause 4.6 like approach’.

42. The second, and primary, authority referenced, which the Council submitted the Court should follow, was Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 (Parker Logan).

43. In Parker Logan at [35], Commissioner Gray finds that there is no inconsistency between the ARH SEPP and LEP cl 4.6. Similarly, the Council argued that what cl 29(4) of the ARH SEPP does is simply make clear that the consent authority has the power to approve a boarding house that does not comply, but does not relax the requirements that the consent authority must consider in determining whether consent should be granted if there is a non-compliance with a development standard.

44. Consistent with Parker Logan, the Council submitted that cl 29(4) operates in the context of cl 29(2)(a), and cl 29(2)(a) is only a 'must not refuse' ground if satisfied. There is no satisfaction of the height development standard referred to in cl 29(2)(a) of the ARH SEPP. Clause 29(4) merely allows the consideration of the proposal in circumstances where it does not comply with the development standard, but that is not to say that the development standard, being the height standard at cl 4.3 in this instance, does not apply.

45. In summary, it was the Council's submission that there is no incompatibility or opposition between cl 29(4) of the ARH SEPP and cl 4.6 of the LEP. A wider meaning should not be given to cl 29(4) of the ARH SEPP, as doing so would ignore the aim of the ARH SEPP to provide a consistent planning regime for the provision of affordable housing. It follows therefore that, as a result of the breach of the height development standard, cl 4.6 applies and a cl 4.6 variation request is therefore required.

46. If further consideration of the concept of inconsistency was required, the Council referenced the authorities otherwise relied on by Commissioner Gray at [43] of Parker Logan being Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324 and Hastings Point Progress Association Incorporated v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285.

47. In the event the Court agreed that a cl 4.6 request was required, Mr Loether accepted that one had been provided by the applicant as part of the amended application.

48. In terms of consideration of the cl 4.6 request, the Council referenced a line of authorities including the most recent, being that of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action). Initial Action outlines the steps to be undertaken in determining the adequacy of a written request seeking consent for a development which contravenes a development standard in an LEP.

49. At [15] of Initial Action, the Chief Judge states that the Court, as the consent authority on appeal, must be satisfied at cl 4.6(3) that the request adequately demonstrates that; firstly compliance with the standard is unreasonable or unnecessary in the circumstances of the case; and, secondly, that there are sufficient environmental planning grounds to justify the contravention.

50. It was the Council's submission that the tests at cl 4.6 had not been satisfied. In particular, the applicant had not demonstrated that compliance is unnecessary or unreasonable as there was no plausible reason as to why the proposed development could not comply with the height standard. The exceedance would be visible from the upper levels of the adjoining approved RFB and the Opal facility. This, in the Council's submission, could not be construed as minimising the visual impact to the surrounding development, being an objective of the development standard.

51. Mr Loether submitted that the grounds provided as environmental planning grounds in the request were insufficient to justify a contravention. Further, the lack of adverse impact was insufficient justification in itself as there is no reason why a compliant development, which revitalises the site and does not create a visual impact for adjoining development, could not be provided.

52. Further, the Court must be satisfied itself, irrespective of what the experts say, that the reasons for the height breach provided in the cl 4.6 request are sufficient and do not merely promote the benefits of carrying out the development. In Council's submission, the planning grounds provided by the applicant do exactly that.

The applicant’s position on clause 4.6

53. The Applicant relied on the decision of Moore J in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 (193 Liverpool Road) to suggest that a ‘clause 4.6 like approach’ is not mandated and that a proper merit assessment of the breach is the appropriate course to follow.

54. The applicant disagreed that the Court should follow Gray C in Parker Logan rather than 193 Liverpool Road. Mr Pickles, SC for the applicant, submitted that the decision is wrong because the Commissioner was led into error by the Council in its submission (at [35]), which the Commissioner accepted, that cl 29(4) of the SEPP is not inconsistent with cl 4.6 of the LEP (at [41]).

55. Mr Pickles submitted that is was erroneous to look for inconsistency between cl 4.6 and cl 29(4) (at [41]) arguing that this is the wrong comparison. The inconsistency is not between cl 4.6 and cl 29(4). Instead cl 4.6, in terms, applies to any planning instrument, so there is no reason why cl 4.6 cannot be applied to an appropriate standard in a SEPP. Rather, the inconsistency in that case, as in this case, lies between the height standard in cl 4.3 and the provision in cl 29(4). This was the proper comparison Commissioner Gray should have made.

56. Clause 4.3(2) provides that: "The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". In contrast, cl 29(4) of the ARH SEPP states that "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)". The standards in subcl (2)(a) includes the height of any building permitted under another environmental planning instrument.

57. Mr Pickles submitted that cl 29(4) expressly allows approval to be granted despite the non-compliance whereas cl 4.3(2) prohibits the grant of consent to a building that exceeds the height. This is a direct inconsistency. The effect of cl 8 of the SEPP is that the SEPP prevails over the LEP provision to the extent of the inconsistency. This means that cl 4.3 is set aside to the extent to which it would preclude consent being granted to a building that does not comply with the maximum height limit.

58. Clause 4.6(2) allows consent to be granted for development that contravenes a development standard subject to the clause. However, the fact that cl 4.3 is set aside by cl 29(4) (because it is inconsistent with it) means that there is no contravention to be overcome by an objection under cl 4.6.

59. Mr Pickles submitted that there are other reasons to prefer the decision of Moore J over that of Gray C. Although the decision of a Judge is not binding on a Commissioner, except on a question of law in the same proceedings, the principles of comity would usually mean that a judicial decision which has been adopted by other Commissioners should be preferred over one that has not been so adopted, unless it is clearly wrong. As outlined, Moore J's decision is not obviously wrong, indeed, on the analysis outlined, it is correct. There is only one other decision that has adopted Gray C's approach (See Parker Logan at [46]) whereas a long line of cases can be found to support the decision in 193 Liverpool Road.

60. It therefore followed that a cl 4.6 objection is not required in this case.

61. Despite this, if the Court finds that a cl 4.6 objection is required, the objection should be upheld on the basis of the cl 4.6 request provided.

62. Mr Pickles considered the Council’s position in not upholding the cl 4.6 request surprising given the Council's planning evidence. Further, the Court is only required to determine the appeal based on the principal contested issues. In the Amended SFC (Exhibit 1), the Council contended only that there was no cl 4.6 request. That contention was overcome by the provision of a written cl 4.6 request (Exhibit E). Notwithstanding that, the Council had not sought leave to amend its contentions to argue that the cl 4.6 request is not satisfactory. The only Council evidence on this issue was from Mr Apps. Whilst Mr Apps was concerned about other aspects of the development, he expressed no concern about the height based on the amended plans in the Joint Report (Exhibit 3).

63. Nevertheless, Mr Pickles accepted that the applicant bears the onus of establishing the grounds to support the breach sought as confirmed in Initial Action at [25].

64. The Council submitted that there is no plausible reason to exceed the height standard however, the applicant argued the plausible reason was the necessity to accommodate the lift overrun. The lift provides access to a high quality communal room and roof terrace which is a better outcome for the development. Further, it is unreasonable and unnecessary to comply with the standard for the reasons stated in the clause 4.6 request (Exhibit E, p8).

65. In terms of the environmental planning grounds referenced by the Council as being insufficient to justify the contravention, it was incorrect to focus wholly on one part of the cl 4.6 request. The whole request needs to be read as it is possible for there to be an overlap between the grounds advanced as to why compliance is unreasonable and what constitutes environmental planning grounds. In particular the matters identified on page 8 (Exhibit E) in section 3.3 are themselves environmental planning grounds including that the lift overrun would not be visible from the public domain but only from the upper levels of the Opal facility and 39 Kildare Road, with 39 Kildare Road itself breaching the height standard.

66. Further, Initial Action at [94] confirms that lack of adverse impacts may be a sufficient basis for upholding a cl 4.6 request. The lack of adverse impact is justification in itself for the breach. Nor does the request "merely promote the benefits of carrying out the development" when the request is properly construed.

Findings with regard to the height exceedence

67. It is necessary to determine whether a cl 4.6 written request is required to vary the height limit, given this is a jurisdictional issue and a pre-condition to the granting of consent should one be required. Further, decisions of this Court vary in their determination of such a requirement.

68. I agree that a cl 4.6 request is not required for the height exceedence sought for the reasons argued by Mr Pickles at [54] – [60] but at [57] in particular: namely cl 29(4) of the SEPP expressly allows approval to be granted despite the non-compliance (with the LEP height) whereas cl 4.3(2) (of the LEP) prohibits the grant of consent to a building that exceeds the LEP height. This is a direct inconsistency. The effect of cl 8 of the SEPP is that the SEPP prevails over the LEP provision to the extent of the inconsistency. This means that cl 4.3 is set aside to the extent to which it would preclude consent being granted to a building that does not comply with the maximum height limit. This finding is also consistent with Justice Moore’s findings in 193 Liverpool Road.

69. The power of the Court specifically available at cl 29(4) to grant the height sought would otherwise be fettered if the tests under cl 4.6 have to first be met. I find this inconsistent with the intended power in the wording of cl 29(4). I do not therefore agree that the intent of the ARH SEPP is to strictly apply the cl 4.6 ‘tests’ to an affordable housing development which would mean applying the same tests for exceeding height as that of a ‘non SEPP’ development where the full suite of LEP and SEPP 65 planning controls apply. The ARH SEPP specifically and deliberately seeks to set aside a number of such controls, in order to facilitate a form of development which would not likely be otherwise approved under the local planning regime. The effect of cl 8 of the SEPP is that the SEPP prevails over the LEP provision to the extent of the inconsistency, which includes setting a height limit which can be varied without having to apply the tests at cl 4.6.

70. This finding is consistent with the decision of Morris C in Koutsos & Anor v Manly Council [2016] NSWLEC 1121 (Koutsos). In that decision, the Commissioner considered the same question of whether cl 4.6 requests under the LEP were required to vary LEP standards for a boarding house development the subject of the ARH SEPP.

71. The Commissioner concluded that there was an inconsistency between the provisions of the two instruments, and therefore the SEPP provisions prevail. The applicant in that matter argued that the provisions at cl 29(4) allow the Court to grant consent to the application despite the development not complying with the LEP controls in terms of FSR and building height. Morris C agreed with the applicant’s position and concluded at [59]:

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

72. If however, I am not correct and Gray C is correct in Parker Logan and there is no inconsistency in terms of the maximum height approvable under the LEP and the SEPP and therefore a cl 4.6 request is required as a precondition to granting consent for the height exceedence, I now consider the cl 4.6 request lodged. This was lodged, as one was lodged in Koutsos and 193 Liverpool Road (and in other appeals before this Court) ‘for abundance of caution’ so as not to preclude the Court from lawfully granting consent to a development in breach of an LEP standard.

73. In this regard, I have also considered the requirements with which I need to be satisfied under cl 4.6 as set out in Initial Action.

74. This is, firstly, that the variation request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I have summarised, at [32] to [37], the contents of the written cl 4.6 request submitted with the amended application and consider that the request adequately addresses the matters required to be addressed at cl 4.6(3), namely that compliance with the standard is unreasonable and unnecessary in the circumstances and that there are sufficient environmental grounds to justify the height breach.

75. These circumstances and grounds outlined include the site context, modest nature of the breach, lack of adverse impacts and the consistency with the height of other approved developments in the zone. These circumstances make compliance with the standard both unreasonable and unnecessary and constitute sufficient environmental grounds to justify the breach.

76. It is not, in my opinion, necessary for the reasons contained in the cl 4.6 request to have to be specifically identified as ‘environmental planning grounds’ for these reasons to constitute such grounds. Nor that such grounds don’t also demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances, without specifically stating those words, if that conclusion in the request is self-evident from the grounds and circumstances described.

77. I am satisfied that the Secretary’s concurrence can be assumed and I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and for development in the R4 zone. In this regard, I note, the expert evidence of the planners, with which I agree, is that the development meets the objectives for development in the zone. It also meets the applicable objectives of the height standard in that the visual impact of the development is minimised, and the lift overrun itself not visible from the public domain, there will be no loss of privacy or solar access to surrounding development or the adjoining public domain from buildings, and the building will be compatible with the height, bulk and scale of the surrounding residential locality.

78. As the power to grant consent exists at cl 29(4) of the SEPP and, if it is found to also be required, under cl 4.6 of the LEP, I now turn to the merits of the application and the contentions raised by the Council to determine whether or not the development should be approved and, if so, under what conditions.

Site Isolation

79. The Council contended that the development would result in the isolation of the church at 35A Kildare Road (the church site). The Council's position was that the appeal site should be amalgamated with the church site. Absent such amalgamation, the appeal should be refused given its impacts on the development potential of the church site.

80. The church site has a similar area and dimensions to the appeal site. It is also similarly zoned R4 however, is adjoined to its east by a site zoned RE1 Public Recreation reflecting the use of that land for community purposes. The Council contended that the development had not addressed the orderly and economic use and development of the church site.

81. Specifically, Mr Loether submitted that the applicant has failed to address the test under Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 (Cornerstone Property), which requires demonstration that an appropriate development can be achieved on an adjoining site.

82. The planners in their Joint Report (Exhibit 3) agreed that attempts had been made by the applicant to purchase the church site and that those attempts had been rejected. They also agreed that, in isolation, the church site would not be suitable for redevelopment as an RFB given its area and width. However, the site would be suitable for other forms of development permitted in the R4 zone, including for a boarding house in a similar configuration to that proposed on the appeal site (Exhibit 3, paragraph 18).

83. Mr Apps also agreed that the church is likely to continue to operate. He considered it highly unlikely that the church site could be amalgamated with the land to its east, being the community facility at 1 Gribble Street, given the different zoning.

84. Mr Loether accepted that there are a range of developments that are permissible and could be achieved on the church site, including the existing use as a church (defined as a place of public worship). However, what is seen in the locality, as evidenced by recently completed developments, is a proliferation of RFBs. The Council submitted that the most appropriate form of development for the church site would be with the appeal site as an RFB given the R4 zoning, and having regard to the zone objectives which clearly contemplate that there be an increased density and size of development relative to what presently exists.

79. On its own, Mr Apps argued that, given the church site is too constrained to facilitate RFB development (as, similar to the appeal site, it does not have the required area or width), the form of any redevelopment on it is likely to be similar to the appeal proposal, namely a tall and skinny building.

80. He further submitted that the church site would be compromised in terms of its potential future development if the appeal were allowed with any use proposed being the subject of a merit assessment for which there is no certainty that a reasonable form of development could be achieved.

81. In this regard, Mr Apps noted that, given the land to the west of the appeal site is used for access and parking and to the east of the church site is taken up with community purposes, it becomes critical that the appeal site and the church site are appropriately redeveloped comprising the remaining sites. As any development of the church site would likely replicate or at least closely match the footprint of what takes place on the appeal site, he was concerned that the resultant built form outcome would be two tall skinny buildings. These would be out of character with larger developments that have taken place or are expected to take place in the R4 zone. Such developments would therefore not be in keeping with development in the R4 zone.

82. Mr Kennan accepted that it may be preferable for the two sites to be amalgamated but this has not been possible as the church did not wish to sell. The applicant should not be required to ensure that the church owners can redevelop their site to the highest and best use of an RFB when those owners did not agree to sell their site at market rate to create a sufficiently wide site to enable such redevelopment over both properties.

83. Mr Kennon argued that there are no specific site isolation or lot width requirements in the DCP for boarding houses. However, he accepted it was relevant to consider if the proposal would result in the isolation of an adjoining site precluding its redevelopment given its location in a high density zone.

84. He noted a variety of development is permissible in the R4 zone including boarding houses and argued that the Council should not assume that every site in the zone will be developed for RFBs. A boarding house is a different form of development but is permissible in the zone. So is a church (as a place of public worship).

85. Mr Kennan argued that the development as amended had due regard to its neighbours given the inability to acquire the church site and the proposed development would appear in the streetscape and local area not dissimilar to other forms of high density residential development.

86. Mr Pickles also submitted that, given the Council's acceptance that a wide range of developments is permissible in the zone, the argument that the proposal does not meet the tests in Cornerstone Property in respect of the church site cannot be understood. The church site is simply not isolated. It can continue as a church which is permissible in the zone as a place of public worship.

87. Further, he submitted, it could be argued that the appeal site is itself isolated as a result of the church (not wishing to sell/redevelop) adjoining to its east, and of the Council’s decision to allow the Opal facility which adjoins at the rear and has it’s car park immediately adjoining the appeal site to the west (being the site’s only other common boundary).

Character of local area and streetscape

94. In the amended SFC (Exhibit 1), the Council contended that the applicant had not submitted a detailed character assessment of how the proposal would fit with the local context. It therefore could not be assessed against cl 30A of the ARH SEPP. Mr Loether also submitted that the proposed development should be refused on the basis of character and design.

95. However, the planners in their Joint Report (Exhibit 3) agreed that there was sufficient documentation to enable an assessment under cl 30A. They also agreed that there are no controls in the DCP relating to boarding houses. Further, that the RFB controls in the DCP do not apply, albeit Mr Apps argued they should be considered as they are the controls which will determine the built form outcome likely to dominate the local area.

96. The Council submitted that it was therefore appropriate in assessing the application to take guidance from the applicable controls that relate to RFBs, namely State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) to appreciate whether or not the proposed development is compatible.

97. Mr Loether referenced the decision of Commissioner Brown in Torr & Torr Realty v Marrickville Council [2012] NSWLEC 1288 (Torr & Torr Realty) where, at [21], he found that the principles of SEPP 65 were considered a helpful guide to consider the Council's contentions in respect of a boarding house development.

98. The Council also referenced Commissioner Gray's decision in Elcheikh v Cumberland Council [2018] NSWLEC 1165 (Elcheikh), and particularly at [38] to [40] where she held that, in order to be compatible with the future character of the local R4 area, the boarding house in that instance must reflect the controls that apply to the predominant residential form in the zone, being RFBs, given that the ARH SEPP merely requires consideration of whether the proposal is compatible with the character of the area and does not set out a framework of objectives, standards and design principles. A broader and more flexible approach is to have regard to the controls that apply to the predominant residential form in the zone which would encapsulate consideration of character.

99. In Mr Loether’s submission, the fact that there is compliance with cll 29 and 30 of the ARH SEPP did not mean that the proposal is satisfactory in respect of character. To the contrary, the proposal did not satisfy the character test and, as a result, should be refused.

100. Mr Kennan was critical that the Council’s local character assessment focused on compliance with RFB controls which did not apply to boarding houses. He also argued that was unreasonable that the development could only be consistent with the streetscape and local character if it was developed in accordance with RFB controls. It is not an RFB and should not need to look like one to be compatible with the locality. If it were the case that site area and width controls, and the development controls for RFBs should also apply to boarding houses, the DCP would require this. The proposal was in harmony with the character of the locality which included single dwelling houses, a community centre, a church, RFBs and the seniors’ living development.

101. Mr Kennan disagreed with the Council’s primary objection that two boarding houses in the area, should the church site be redeveloped in a similar fashion, would be less compatible with the local character than one. He argued that this would not be the case given the boarding houses would be in a zone where such uses were supported and where DCP controls did not require sites for such uses to have any designated minimum width or area.

102. Mr Pickles submitted that the reference to Torr & Torr Realty was misplaced as the Commissioner in that matter held that SEPP 65 was relevant for the purposes of understanding the Council's contentions in that matter, being the height in storeys. It was therefore relevant to understand the desired future character in the context of SEPP 65. That conclusion adds nothing in this appeal as the height in storeys is not in contention and the Council does not identify any relevant matter under SEPP 65 that would warrant refusal.

103. Mr Pickles did not disagree with consideration of Elcheikh however, submitted that the Council did not identify what aspects of its planning controls would support the contention that the proposed building is too tall and narrow given there are no controls or requirements for building width and nor are there requirements to consolidate lots.

104. In terms of the compatibility of the development with the character of the local area, Mr Pickles referenced Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture) at paragraphs 22-24:

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?

105. Mr Pickles submitted that the relevant tests were therefore: are the proposal’s physical impacts on surrounding development acceptable; and is the proposal’s appearance in harmony with the buildings around it and the character of the street? In this regard, he noted the planners agreed that there were no adverse impacts on surrounding development and that there was a variety of development determining the character of the street.

106. It was therefore the applicant’s submission that the proposal is entirely compatible with the streetscape, not incompatible with the adjoining church and would not want to be compatible with either the Opal building or its car park.

107. In terms of the amended application, the planners agreed that the landscaping proposed on the eastern boundary provided a suitable treatment to the setback of the driveway. Further, that the proposed setbacks to the western boundary were appropriate having regard to the lack of built form on the adjoining land in this location (ie. the Opal car park). Also, that the proposed 3m setback to the eastern boundary (the church site) is satisfactory and would not result in any adverse impact on the church in terms of privacy or solar access. Finally, that the 6m rear setback would provide suitable separation to the Opal development to the rear.

108. Mr Apps was concerned however, that the boarding house would result in a tall skinny built form, out of character with larger developments which have taken place or are expected to take place in the surrounding R4 zone. He did however accept that, in terms of a built form outcome, the proposed boarding house would be indistinguishable from an RFB in terms of height and number of storeys.

109. He argued that the reason the DCP did not have controls for boarding houses is because they come in various forms. However, one does not simply disregard the DCP in the absence of specific controls. Whilst this did not mean that the boarding house must meet all of the provisions for an RFB, those provisions relating to streetscape and rhythm should be considered to ensure the boarding house is compatible with the character and context of the zone, in particular as the site did not meet the 30m frontage or 900m² land area requirements required for an RFB.

110. In summary, whilst Mr Apps accepted the setbacks do not result in any adverse impacts such as privacy and overshadowing, he argued that the built form outcome would not be in keeping with a typical high density residential form that the DCP anticipates and therefore would be out of keeping with the likely built form in the R4 zone.

111. In this regard, the planners agreed that, over time, the cottages on the opposite side of Kildare Road would also likely be redeveloped as RFBs.

112. Mr Kennan described the local character as peculiar in an R4 zone in that it was unusual to see at grade parking on an R4 site, as existed with the Opal car park. He described the Opal facility as a ‘massive battleaxe development to which RFB controls don’t apply’. This development forms a backdrop to the site being a large development in essence looming over the site. This is exacerbated by the impact of Opal developing the battleaxe handle as a hard stand parking and access area fronting Kildare Road.

113. Mr Pickles submitted that the open Opal car park resulted in a ‘sawtooth streetscape’ to Kildare Road with the car park comprising, in essence, the missing tooth between high rise developments.

114. Mr Kennan indicated that he had advised the architect to address the site’s context by providing appropriate setbacks to the church and a reduced setback to the Opal car park. The Council had accepted these setbacks as being suitable and appropriate.

115. He argued that the setbacks would minimise impacts on the church facility but also enable its future redevelopment. Given the exposure of the western elevation of the proposed boarding house due to the open car park it was necessary for the applicant to articulate this western facade moreso than if the car park area had been developed by Opal in accordance with the height and built form controls envisaged in the R4 zone. This articulation included a variation in side wall setbacks and treatment of the western elevation and was more articulation than what had been approved in the vicinity including at 39 Kildare Road.

116. Mr Apps argued however, that the proposed boarding house displayed inadequate modulation and articulation, a concern elaborated on in the design excellence contention which follows.

Design Excellence

117. Clause 7.7 of the LEP requires that the development meet the design excellence provisions of this clause.

118. In dealing with the design excellence contention, the planners agreed that the materials schedule for the proposed boarding house was satisfactory. Further that the removal of boarding rooms at the top level and their replacement with a larger communal open space area reduced the bulk and scale of the proposed development in the Kildare Road streetscape to an acceptable level (Exhibit 3, p13).

119. The applicant approached the issue of ‘design excellence’ by a comparison with other approved developments in the vicinity. In particular, Mr Kennan argued that recent development in the area must have been approved under the LEP design excellence provisions. In this regard, 39 Kildare Road had blank walls with highlight windows and a much greater length of building (that was largely unarticulated) than the proposed boarding house. Furthermore, the boarding house had been designed having due consideration to its context notwithstanding the constraints of the site.

120. However, Mr Loether was critical that Mr Kennan provided minimal evidence with respect to why the proposed development satisfied cl 7.7 as he did not have regard to whether, pursuant to the cl 7.7(4)(a), (b), and (e): a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved; the form and external appearance improves the public domain; or the requirements of the DCP have been considered. Mr Kennan also had not addressed how the application addressed the matters in cl 7.7(4)(f) including the bulk, mass and modulation of buildings, and pedestrian, cycle, vehicular and service access and circulation requirements.

121. In contrast Mr Apps, in the Joint Report at Exhibit 3, had responded to the matters for consideration in cl 7.7 by raising concerns with the lack of modulation and claiming the façade lacked any interest or identity which contributes to the built character.

122. Mr Loether submitted that it is irrelevant to consider what has been approved elsewhere and that the application must be considered on its own merits. The fact that the subject site is narrow and constrained which restricts the extent of modulation, as submitted by the applicant, does not exempt the application from satisfying the provisions at cl 7.7. Ultimately, and irrespective of the experts’ evidence, the Court itself must be satisfied that the proposed development exhibits ‘design excellence’ and that the matters contained in cl 7.7 are satisfied. On the basis of the application before the Court, the Court would not be satisfied and the application must be refused.

123. Mr Pickles contested Mr Loether’s submission that the building is too large for the site as it contradicted the express agreement of the planners that the development did not constitute overdevelopment of the site. Given this agreement, it cannot be contended that the building is too large. This is different from a concern with the front façade or the width of the building.

124. Further, Mr Apps’ concern was not the building’s relationship to the church but rather how it would appear given the open nature of the Opal car park. The design for the appeal site was therefore being penalised by the Council’s approval of a hard stand open car park next door creating a gap in the Kildare Road streetscape and allowing greater exposure of the side elevation of the proposed development on the appeal site.

125. Mr Pickles submitted that the Court is only required to determine the appeal based on the principal contested issues and, ultimately the only issue raised by the Council in terms of the design, was the lack of modulation on the front façade. It was Mr Kennan’s evidence that the front façade is well-modulated with a variety of finishes and materials, balconies and a deep setback on the western side of the middle wing of the building.

Plan of Management

126. A social planning expert Joint Report was prepared by Ms Ashworth for the Council and Mr Kennan for the applicant (Exhibit 4). This was to address a Council contention that the proposed development should be refused as it failed to comply with applicable social planning standards. Much of the contention related to the internal design of the boarding house. Ultimately, the experts agreed that the contention had been resolved as a result of the amendments to the application, other than in terms of the proposed Plan of Management (PoM).

127. Ms Ashworth argued that the PoM needed to be updated having regard to additional items required by the Council including, but not limited to:

1. information on the management model for the operation of the boarding house to assist the site manager and occupants understand roles and responsibilities;

2. information on the qualifications and experience of the manager in terms of first aid experience, child protection clearance and police checks. This was to ensure resident amenity and safety;

3. criteria for room allocation based on tenants’ incomes;

4. information being displayed relating to minors and child protection to provide a safe environment including outlining obligations under the Children and Young Persons Protection Act 1998 and advising how the terms of this Act would be met;

5. requiring a registrar on resident’s special needs based on information sought from residents on a voluntary basis; and

6. a car parking policy where bays were not allocated to minimise adverse impacts of parking in the surrounding area.

128. The changes Ms Ashworth's sought to the PoM were required as proposed Council conditions of consent.

129. Mr Kennan objected to all of these extra inclusions noting that there was an adequate regime around managing affordable housing development already. The proposed PoM was similar to ones Mr Kennan had prepared for numerous new generation boarding houses in Sydney. It was in a form that had been accepted by both the Court and other Councils as being an adequate means by which a boarding house can be managed. The proposed boarding house has no features which are fundamentally different to other boarding houses to which such PoMs apply. Mr Kennan nevertheless provided to the Court details such as how the manager may be selected and the room allocations managed.

128. In oral evidence, Ms Ashworth advised that the Council had a guide (including a draft template) for preparation of what she continually referred to as a ‘best practice’ PoM. A copy of this guide was requested by the Court and provided (Exhibit 9). However, it did not contain all of the items sought in the PoM by Ms Ashworth, such as the proposed management regime. Ms Ashworth also claimed to have samples of best practice PoMs however, a sample was not provided.

129. Mr Pickles objected to the modifications sought to the PoM by Ms Ashworth. In particular he was concerned with any reference to the Children and Young Persons Protection Act 1998 arguing as to its relevance given all of the general populace needs to comply with this Act and questioning what the manager could do about breaches of it. Further, children would be unlikely to board at the facility and, if attending as visitors, would need to be accompanied by an adult. He also questioned the relevance of boarders knowing the ownership structure of the facility. He indicated that the applicant had never been provided with any checklist or best practice PoM or guidelines by the Council, and the evidence of Mr Kennan should be preferred as to what a reasonable and accepted PoM should contain.

Engineering considerations

132. The Council submitted that there were fundamental engineering design issues and concessions which were driven purely by the narrowness of the site, namely in terms of waste collection, and ramp gradients and grades. There was also disagreement on the requirement for onsite stormwater detention.

Waste collection

133. Expert evidence on waste collection, and associated ramp issues, was provided by Mr Byrum and Ms Golla for the Council and by Mr Corbett for the applicant.

134. The application as amended proposed waste collection in the basement. The applicant proposed two design options for the waste collection bay; referenced as drawings SK01 and SK02.

135. The applicant preferred SK01 in order to minimise the basement footprint, and so retain the trees at the rear of the site. This proposed that waste trucks enter the waste collection area in a forward direction and be loaded at the rear essentially from the basement aisle. Mr Corbett advised that a traffic light system proposed for the basement would ensure that waste collection could be undertaken safely.

136. However, the Council was concerned that, given the storage location of the bins, during collection the path the contractor would need to traverse to load the bins had the potential to create conflict in the basement with vehicles entering and exiting the site. This would raise safety issues and was unsatisfactory.

137. The Council's preferred option was SK02 which requires that the waste vehicles reverse in and that collection take place at the rear away from the waiting bay and away from the turning path of vehicles entering and existing the basement.

138. Ms Golla gave evidence as the Council’s waste manager. She advised that the Council assessed waste collection requirements using the EPA's Better Practice Guide for Waste Management in Multi-unit dwellings (the Waste Guide); Exhibit 16. The Waste Guide stipulates that development must be safe and minimise risk. The Council submitted that the Court, as the consent authority, should have regard to the Waste Guide in determining whether the proposed waste collection is satisfactory.

139. In particular, reference should be made to page 19 of the Waste Guide, which provides that onsite collection points should be located:

• so that collection vehicles do not interfere with the use of access driveways, loading bays or parking bays during collection;

• in a position that provides collection vehicles safe access to the collection point and which has adequate clearance and manoeuvring space; and

• so that oncoming traffic can be clearly seen as the collection vehicles leaves the property.

140. The Council argued that it did not have sufficient details of the proposed traffic light system and, in circumstances where there is significant risk involved, such details should be provided prior to consent being granted. Further, Mr Corbett accepted that the SK02 solution reduced risk albeit he maintained that SK01 was sufficiently safe and did not present a ‘significant risk’.

141. Either solution could only accommodate a small rigid waste vehicle (SRV), not being the Council's preferred waste vehicle as the Council's fleet of waste vehicles are medium rigid vehicles (MRVs). It was accepted that a SRV would require the applicant engaging a private waste contractor, as the applicant proposed.

142. The applicant's position was that, notwithstanding that the likelihood of conflict is minimal, if the Court found against the applicant in relation to this contention, the proposed waste collection should not be a reason for refusal.

143. The Council's submission was that the risk identified is avoidable, and warrants refusal of the application.

144. Mr Pickles submitted that it is not a design requirement that all risks must be eliminated and, to the extent to which the Waste Guide can be considered at all, the Guide does not mandate a standard of eliminating all risks. He noted that the Waste Guide only relates to multi-unit dwellings and was not referenced as an environmental planning instrument, in the DCP or even as an adopted policy of the Council.

145. During proceedings, the experts suggested an alternate solution which involved extending the basement to the rear to enable reversing of an SRV into the collection bay with bins wheeled from the storage area and loaded at the rear without having to enter the basement aisles.

146. Mr Pickles noted that it was a case of achieving a balance between planning and environmental requirements. He disagreed that the design issues with the garbage area were driven by the narrowness of the site stating it was the desire to retain the trees. If the Council had little interest in retaining the trees, the Court was at liberty to make its own decision on whether the waste area should be designed according to the current plans (SK01 or SK02), or SK02 with the modifications proposed in oral evidence.

Ramp gradients

147. There was disagreement between the parties as to how to apply the Australian Standard AS2890 (the Standard) in order to determine an appropriate grade and design for the basement ramp. Prior to the hearing, AS2890.1 had been updated by AS2890.2, albeit AS2890.2 still referenced the provisions of AS2890.1 as being of relevance.

148. Mr Byrum considered that compliance should be required with the prescribed maximum grades at Table 3.2 of cl 3.3.3.2 of AS2890.2, as well as with the rates of change of grades at Table 3.3 of cl 3.3.4.2.1.

149. Mr Corbett acknowledged that the ramp did not comply with the prescribed maximum grades in AS2890.2 but argued that compliance is not required as the Standard enables, as an alternative, a vehicle performance assessment if grades are exceeded (at cl 3.3.3.3). A similar situation exists in terms of the rate of change of the ramp’s grade, with Mr Corbett arguing that the proposal is acceptable when one considers the ground clearance method assessment he undertook as referenced in cl 3.3.4.3 of the Standard. However, Mr Byrum did not accept this assessment.

150. The applicant also argued that the length of the site did not permit a longer ramp to reduce the proposed grades. As it was proposed to use a private waste contractor, and the contractor would be using an SRV, the design should only be required to meet the requirements for an SRV. Mr Corbett provided a letter from the proposed waste contractor as to acceptable grades, however, the Council submitted the Court should give little weight to this document.

151. Mr Corbett also referenced policies of other Councils in terms of grades for waste vehicles. The Council submitted these appear to relate to vehicles which have characteristics of a MRV, in respect to maximum load capacity, but Mr Corbett disagreed that this was the case.

152. Mr Corbett stated that he considered there would be a low probability of waste vehicles stopping on steeper grades as they started on a flat grade and the collector could activate the proposed lights in the basement to have priority access. Further, the risk would be minimal as waste collection would happen infrequently and in a low risk environment.

153. The Council disputed that trucks may not stall given the steepness of the grade and the fact that it is only a one way ramp. In particular, the Council’s concern was the proposed narrow one way driveway with a grade that exceeds a prescribed maximum in a Standard which had been set to provide for safe development. This introduced a risk and a potential safety issue driven purely by the narrowness of the site which does not allow an alternative garbage collection point within the basement.

154. The Council also submitted that, as both Mr Byrum and Mr Corbett confirmed, the issues could potentially be resolved through an increase in basement levels. However, this was not supported by the applicant because of adverse implications in terms of increasing the height of the development.

155. On the basis of the non-compliances with respect to both driveway gradients and ramp grades, and the risk it introduces, the Council submitted that the site is too constrained for the development including the waste collection arrangement proposed.

156. Mr Pickles submitted that meeting the maximum grades in Table 3.2 of AS2890.2 is not the test. The Council had not contended that the development should be refused by reason of the gradient of the driveway. Even though leave was given to the Council to adduce further evidence on this issue (as the Standard had been amended after the filing of the Amended SFC), the Council had never articulated this contention. Further, it is not relevant to demonstrate what would happen if the basement was altered to comply with cl 3.3.3.2 as that is not the application before the Court. All that is necessary is to demonstrate that the application will perform to a satisfactory manner in accordance with AS2890.2. That Standard includes the ability to undertake a performance assessment approach.

157. Mr Pickles therefore disputed the Council’s submission that the performance approach set in the Standard as an alternative approach is not appropriate. That submission ignores the words of the Standard itself, and the ‘Foreword’ to AS2890.1 (AS2890.1 being adopted as a reference guide in cl 1.3 of AS2890.2), which states that “Although it provides minimum requirements, this Standard cannot be taken as a textbook for the design of parking stations. The services of a qualified person experienced in designing car parking facilities should be sought in the application of this document…”

158. Mr Pickles submitted that the Standard therefore makes it clear that the maximums are guides not mandatory requirements. It also cannot be said that there is a non-compliance with the Standard in circumstances where the Standard contemplates a performance based approach as a legitimate alternative.

Stormwater

159. The engineering experts, through the process of joint conferencing and the provision of amended material, were able to reach agreement on the majority of stormwater issues originally raised by the Council.

160. In this regard, the Council’s expert, Mr Merrilees, had originally required the registration of a 1m drainage easement to provide a gravity drainage discharge point to a legal discharge point.

161. Mr Merrilees agreed to delete this requirement if an additional pit was provided at the rear of the site in the north western corner; a requirement reflected in a proposed condition of consent.

162. The applicant opposed this arguing, in essence, that: this part of the site would naturally drain being landscaped; the pit could require removal of the adjoining trees; and any excess drainage was caused by inadequate drainage of the adjoining Opal development and not by the proposed development.

163. However, Mr Pickles submitted that, if the Court accepted the modified SK02 waste solution proposed during oral evidence, which requires the extension of the waste collection bay and ultimately the removal of the trees, the applicant would accept a condition requiring that the additional pit be provided.

Conditions of consent

164. Proposed conditions of consent were filed after the hearing. Some 20 conditions, or components of conditions, were not agreed between the parties.

165. The Council position with respect to the disputed proposed conditions, and the applicant’s response, are as follows:

• Condition 2.6.1: the condition requires the boarding house to be operated as affordable housing in the terms outlined at cl 6 of the ARH SEPP. The Council argues it is a reasonable requirement. The applicant argues this is unnecessary and should be deleted.

• Condition 3.1.1: imposes developer contributions. The Council advises the contributions are calculated based on the applicable contributions plan, being CP19. The total additional population is calculated by applying the assumed occupancy rates in CP19 not the actual occupancy rate as argued by the applicant.  Amending the figures would create an undesirable precedent. The applicant argues that the Council has correctly calculated its contributions for Flood Mitigation and Stormwater Quality as those contributions are based on a value per hectare. However, the Council has incorrectly calculated its contributions for Traffic Management, Open Space and Community Facilities, those contributions being based on a per person calculation.  In this regard, the Council has calculated 49 rooms x 1.5 persons per room - 3.5 persons for the existing dwelling on the site which equates to 70 persons. That calculation is not correct as the proposed development is limited to 51 lodgers + the Site Manager = 52 persons less the 3.5 persons for the existing dwelling on the site = 48.5 persons. 

• Condition 4.2.2 references design requirements for visitor parking. This is sought to be deleted by the applicant as the Council agreed to do for condition 10.2.2. Whilst no reason is given, it is presumed that this on the basis that no visitor spaces are proposed.

• Condition 4.4: relates to the waste collection arrangements in the basement where the Council relies on their evidence to require safe design by requiring the amendments proposed to SK02 to be undertaken. The applicant notes the condition would depend on the Court’s determination of appropriate design parameters but seeks changes assuming a private waste collector, and the design being in accordance with that proposed in the application plans.

• Condition 6.7.3: relates to structural designs where the Council seeks reference to the structural engineer being ‘registered with NER’ which the applicant considers unnecessary – the condition should simply require that the engineer be suitably qualified.

• Conditions 15.1 and 20.1: are conditions recommended by NSW Police. The Council advises these conditions, referring to the design of the landscaping and the closing time of communal areas, were suggested by the Police to minimise and prevent crime. The applicant did not indicate why the conditions should be deleted.

• Condition 16.9.4: refers to access to communal areas which the Council seeks to restrict to lodgers. The applicant seeks that they can also be accessed by guests of lodgers.

• Conditions 16.10.19(a)-(f) and 17.5.4: are the requirements in the PoM sought by Ms Ashworth, which the applicant opposes.

• Condition 16.14.1: relates to waste collection responsibilities. The Council indicates the intent is to ensure that everyone is aware of their responsibilities with respect to waste collection. The applicant considers that the PoM deals with this issue.

• Condition 17.5.1: This condition outlines the required parking provision. Council argues the condition ensures car parking spaces are assigned appropriately. The applicant did not indicate why the condition should be deleted.

• Condition 17.5.2: This condition reinforces a requirement of the ARH SEPP that a boarding house of this size be managed by an onsite caretaker. The applicant did not indicate why the conditions should be deleted.

• Condition 17.5.8: This condition requires the operation of the development to comply with the boarding house definition in the ARH SEPP. The applicant did not indicate why the condition should be deleted. There was no condition 17.5.7.

Findings on merit contentions

166. I deal firstly with site isolation. On the basis of the oral and written advice to the Court, it is reasonable to conclude that the owner of the church site does not which to sell. The church is a purpose built building and there was no suggestion that its ongoing use would cease in the foreseeable future. A church (place of public worship) is permissible in the zone and the continued use of the site for this purpose should therefore be considered an appropriate use of the site and within the zone.

167. The existence of the church was a consideration in the design and setback of the proposed boarding house not only in terms of amenity impacts whilst the church remains but in terms of facilitating redevelopment of the church site should that be proposed in the future given its high density R4 zoning.

168. Whilst accepting the site may not be capable of development for an RFB, the planning experts agreed it could be developed for a boarding house, similar to that proposed for the appeal site, or for other uses permissible in the LEP. The planning experts had therefore considered the form of development that could occur, including for another boarding house.

169. I also note that the objectives of the zone encourage a variety of residential types and uses.

170. If the owner of the church site sought RFB development, in order to meet the site width and area controls and the requirements of SEPP 65 it would be necessary to amalgamate with the appeal site. The opportunity to sell the site to the applicant for this purpose was available but was not taken up.

171. There could also be opportunities for the church site to amalgamate with the community facilities’ land to the east albeit I accept that this is unlikely given that land is in a different zone.

172. I am however, satisfied that the proposed development will not unreasonably constrain use or development of the church site, should the church wish to redevelop. Therefore the proposed development will not unreasonably isolate the church site or preclude it from a form of redevelopment appropriate in the zone.

173. I also agree with the applicant that, to some extent, the Council has isolated the appeal site by recently approving the Opal development, including its car park, immediately adjacent to the site on two of its three common boundaries and leaving the appeal site between this development and the church on its remaining common boundary, with the church owners not wishing to sell.

174. Given these circumstances, I do not consider isolation of the adjoining church site at 35A Kildare Road to be a ground for refusal of the application.

175. The second contention raised by the Council addresses my consideration of the development’s compatibility with the character of the local area as required by cl 30A of the ARH SEPP.

176. On the basis of the evidence provided, and having regard in particular to the site’s context, I find that the form of development proposed is compatible with the existing and emerging character of the area in this location and responds to the Council’s core planning controls.

177. Whilst I accept the Council’s assertion that RFBs on amalgamated lots will likely be the future dominant built form in the local area, it is the case that the local character currently comprises an eclectic mix of development forms and uses ranging from single storey cottages, the church and community facilities to multi-storey RFBs and seniors’ living facility, including its open stand car park. There is no reason a boarding house, or more than one boarding house, of a similar height to the adjoining residential uses, would not be compatible in such a context.

166. The site is constrained by its width and area and the inability to amalgamate with adjoining sites, for the reasons I have already outlined. These constraints are not assisted by the nature of development in the vicinity which also impacts the design of any development on the appeal site.

167. I agree that the development of the site in isolation for an RFB is inappropriate given its constraints. Notwithstanding those constraints (frontage, area and isolation), the LEP controls permit development up to 20m and a form of development commensurate with this height would be reasonably expected to occur, and appropriate. A boarding house enables a built form of a similar height but on a constrained site where RFB controls could not be met. It is also an appropriate design response to an isolated site in the context in which this site is located.

168. In terms of compatibility, I have had regard to Project Venture. In an urban design context, the development is capable of existing together in harmony with development in the area and in the street without having the same density, scale or appearance. Whilst as the difference in these attributes increases, harmony is harder to achieve, it is the case in this instance that the proposed boarding house will have an appearance and density appropriate for the high density residential zone in which it is located and will be of a form, which Mr Apps himself conceded, indistinguishable from an RFB, albeit a narrower one than has been approved in the area. However, this narrowness is a product of the site’s constraints.

169. The development meets the relevant test in Project Venture: namely, that the proposal’s physical impacts on surrounding development are acceptable and the proposal’s appearance is in harmony with the buildings around it and the character of the street; to the extent one would want the building to be in harmony, as distinct from the same as, nearby developments such as the Opal facility and 39 Kildare Road which the Council acknowledged were not built form outcomes that the boarding house should emulate.

170. Notwithstanding that the site is isolated and constrained in terms of its width and area, there are no contended amenity impacts associated with the proposed development of it, even with the height breach proposed, other than possibly the overlooking of the lift overrun by occupants of higher floors of the Opal facility or of 39 Kildare Road; the latter development itself breaching the height controls and the former not required to meet RFB controls.

171. In this regard, the design of the boarding house has had regard to adjoining and nearby development. As I have indicated, this includes an adjoining church, an approved RFB at 39 Kildare Road, and a seniors’ living facility (the Opal facility) at 37 Kildare Road which provides a backdrop to the proposed development and, as was agreed by the parties, dominates the visual catchment of the local area. Not only is the Opal building large and visually dominant, but it wraps around the rear and western side of the site with the layout of the facility creating a disparity in the streetscape. This was referred to Mr Pickles as the ‘saw tooth effect’ of an open stand car park occupying the site’s Kildare Road frontage. This use visually exposes any future western façade of a building on the appeal site moreso than would be the case had a building component of the Opal facility been developed on this portion of their site instead, to the height envisaged by the controls.

172. There were no resident objections raised, the overdevelopment issue was agreed by the planning experts to be resolved, and the FSR enabled by the ARH SEPP was met and therefore cannot be a ground for refusal.

173. I am therefore satisfied that the proposed development will be compatible with the character of the local area, particularly given that no identifiable common character, or even desirable character in terms of recent residential development, exists.

174. I also consider that the development exhibits ‘design excellence’ for the purposes of how that term is defined at cl 7.7 of the LEP. In forming that finding, I note that there was much overlap in the evidence between compatibility with the local area and design excellence.

175. I accept that the form and external appearance of the development will improve the quality and amenity of the public domain in terms of the form of development anticipated by the R4 zoning compared to the existing dwelling on the site. It will not detrimentally impact on views or solar access and it is a suitable use of the land having been designed having regard to the design criteria at cl 7.7(f).

176. In particular, I consider that design excellence is achieved at 7.7(4), being a high standard of development appropriate to the building type and location, being for affordable housing on a constrained site surrounded by new development of agreed questionable design excellence (my emphasis added).

177. I also note that the Council’s planner agreed that the materials and setbacks were appropriate, that there would be no adverse impacts on adjoining development, that the site was not being overdeveloped, and that the car park use of 37 Kildare Road impacts the design particularly the western façade.

178. I also note the evidence of Mr Kennan, not disputed by the Council, that nearby developments recently approved must have been similarly assessed and approved having regard to cl 7.7 and therefore found to represent design excellence, even though the Council did not promote the features of those developments which, in Mr Kennan’s opinion were less modulated and articulated with larger and longer building forms than is proposed in this appeal.

179. The experts agreed that the setbacks and height of the proposed development were appropriate. The only issue the Council contended to any degree was that the building would be narrow and that narrowness limited the ability for articulation, not that it should be lower.

180. It is also possible to determine that the development has addressed the requirements at subcl 7.7(f) in its design and facilities without having to specifically list each of the criteria at (i) to (x) in order to demonstrate these matters have been considered in the design, such as for example, pedestrian and circulation requirements. I also note that the DCP referenced in subcl 7.7(e) is the former 2006 DCP based on the definition at 7.7(5), yet it is understood that the Council would consider the design provisions of the current DCP in assessing applications in terms of design excellence.

181. I have therefore had regard to the requirements of cl 7.7 and find that there is no evidence that the application should be refused on the basis of the design excellence provisions contained therein.

182. Having considered and addressed all of the Council’s merit and jurisdictional contentions, I find that the application can and ought to be approved.

183. I now turn to the proposed provisions of the Plan of Management, engineering considerations, and proposed conditions of consent.

184. Like Mr Kennan and the applicant, I was surprised at the inclusions sort by the Council to be within the PoM given the number, and general consistency, of such documents which have been accepted by Councils and this Court to manage the operation of boarding houses.

185. Notwithstanding what I understand to be the intent behind the proposed inclusions, as explained by Ms Ashworth, namely that they will result in improved management of an affordable housing facility, I see no basis for this conclusion and no evidence that they constitute ‘best practice’, as Ms Ashworth contended.

186. From Ms Ashworth’s oral evidence, she suggested the occupation of such premises by tenants requiring affordable housing generates a need for special conditions in the PoM because of the nature of the occupants and the managers. I don’t accept that premise as there was no evidence that this is the case.

187. To the contrary, the additional PoM provisions sought appear to me to single out and emphasise that boarding houses are occupied by a certain class of residents and need to be managed in a particular way accordingly. I reject that conclusion albeit, I accept that the Council’s requirements are, in the eyes of the Council, well intended.

188. I also note that no sample of the ‘best practice’ PoM sought by the Council was provided by the Council and I do not consider that a PoM in the form the Council seeks would comprise such a document. The conditions requiring these changes to the PoM sought by Ms Ashworth are not imposed accordingly, being proposed condition 16.10.1(a) to (f) and condition 17.5.4.

189. I turn next to the engineering design issues, and firstly with waste collection.

190. In this regard, whilst the loss of trees on any site is regrettable, I agree with the planners that they can be replaced whereas the future safety of waste collectors and users of the basement is paramount. Whilst not concluding that there is any high degree of risk in what the applicant proposes, given a solution is available to further minimise that risk which satisfies the Council, it is prudent and appropriate, in my view, to require that solution. Conditions requiring the implementation of the SK02 design, as modified during oral evidence, are imposed as proposed by the Council accordingly, being proposed conditions 4.2.1 and 4.4.6 to 4.4.10 inclusive.

191. As compliance with these conditions will likely result in tree loss, and the applicant agreed to provide the stormwater pit sought by the Council if such a loss was to eventuate, the additional pit sought by the Council is to be shown on the amended drainage plans required in proposed condition 6.7.

192. In terms of the ramp gradients, I agree with the Council that, where possible, the ramp gradients and changes of grade criteria outlined in the applicable Australian Standard, in this case AS2890.2, should be met in the design of basement ramps. However, I also accept that, where compliance with these criteria cannot be met, in this instance due to the site constraints, AS2890.2 does provide alternative design parameters which the application has been designed to achieve. These designs are based on waste collection by a private contractor using an SRV and this is a required condition of consent agreed to by the applicant. Further, SRVs are commonly promoted to this Court as an acceptable form of waste collection vehicle particularly on constrained sites and basement ramps designed on the basis of accommodating such vehicles.

193. Given AS2890.2 contains standards as a guide but also offers opportunities for designers to design solutions that depart from these suggested standards, I accept that this is a reasonable approach for the applicant to take in the circumstances. Conditions requiring compliance with the design requirements proposed by the applicant for the basement ramp are imposed accordingly as per the applicant’s proposed condition 4.4.4. I have also deleted proposed condition 4.4.2 as also sought by the applicant.

194. Finally, in terms of the remaining conditions in dispute, I agree with the submissions put forward by the Council for the majority of these conditions which are therefore imposed on the consent, particularly where there was no basis given by the applicant for their deletion. These include the conditions reinforcing specific SEPP compliance requirements (conditions 2.6 and 17.5.8) or compliance with aspects of the PoM that were not contested during the hearing and which are typical PoM provisions (condition 16.14.1). I note however, that there was no condition 17.5.7 so proposed condition 17.5.8 has been renumbered 17.5.7. References to Owners Corporation responsibilities has also been removed and replaced with responsibilities assigned to the boarding house owner or manager.

195. I agree with the applicant that guests of lodgers should also be able to access communal areas and, as no reason was given by the Council for precluding them, condition 16.9.4 is amended as sought by the applicant to enable this to occur.

196. In terms of the developer contributions, I must accept the evidence of the Council that the Council determines contributions based on assumed occupancy, not actual occupancy, as this evidence was not disputed. Therefore the contributions sought by the Council at condition 3.1.1 are imposed.

197. I have deleted any reference to either ‘resident’ or ‘visitor’ parking spaces at conditions 4.2.2 and 10.2.2, referring only to any onsite parking spaces.

198. I accept that the conditions recommended by the NSW Police (15.1 and 20.1) are in the interests of the safety of the occupants noting they appear both reasonable and readily able to be complied with. I also note that there are other requirements, designated as being Police requirements, at condition 16.9, and there were not opposed by the applicant. The proposed conditions are therefore imposed but with condition 20.1 reworded given it is poorly worded.

199. In terms of reference to a structural engineer being registered with NER, I note this is a standard condition of Blacktown Council and that the applicant did not provide a basis for amending the condition. Further, a number of other proposed conditions reference the requirements for NER certified personnel and these conditions were not opposed by the applicant. Accordingly, proposed condition 6.7.3 has been retained as sought by the Council.

Orders

212. The orders of the Court are:

1. The applicant is given leave to amend the development application and rely upon the plans listed at condition 2.1.1 in Annexure “A”.

2. The applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development application DA-17-02408 for a boarding house at 35 Kildare Road, Blacktown is approved subject to the conditions set out in Annexure “A”.

5. The exhibits are returned other than Exhibits D, E, F, H and 1.

_____________

Jenny Smithson

Commissioner of the Court

**********

Annexure A 

Decision last updated: 16 April 2019