Manor Property Trust v City of Ryde Council

[2017] NSWLEC 1629

Land and Environment Court

New South Wales

Medium Neutral Citation:	Manor Property Trust v City of Ryde Council [2017] NSWLEC 1629
Hearing dates:	25 July 2017
Date of orders:	10 November 2017
Decision date:	10 November 2017
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The appeal is upheld. (2) Development consent is granted to development application LDA/2016/517 for the demolition of an existing dwelling and construction of a boarding house with underground car parking, subject to the conditions of consent attached as Annexure ‘A’. (3) The exhibits are returned, with the exception of Exhibits A, B and C.
Catchwords:	Development Application: demolition of existing dwelling; boarding house development; accessible location; isolated site.
Legislation Cited:	City of Ryde Local Environment Plan 2014 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	193 Liverpool Road v Inner West Council [2017] NSW LEC 13
Texts Cited:	Ryde Development Control Plan 2014
Category:	Principal judgment
Parties:	Manor Property Trust (Applicant) City of Ryde Council (Respondent)
Representation:	Counsel: A. Pickles SC (Applicant) F. Berglund (Respondent)   Solicitors: Conomos Legal City of Ryde Council
File Number(s):	2016/368649
Publication restriction:	Nil

Judgment

Background

1. COMMISSIONER: Manor Property Trust (the Applicant) has appealed the deemed refusal by City of Ryde Council (the Respondent) of its development application LDA/2016/0517 for the demolition of existing structures and the erection of a boarding house with basement car parking. The proposed development also includes an area of rear open space for residents.

2. The appeal is made pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. The appeal concerns a property at 12 Bank Street, Meadowbank, formally identified as Lot A in DP 309561 (the ‘Subject Site’), located to the west of Meadowbank railway station. The Subject Site is currently occupied by a single storey dwelling house.

4. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 7 April 2017.

5. An inspection of the Subject Site was undertaken prior to the commencement of the hearing. No objectors sought to be heard during the inspection.

6. The Respondent said that, with one exception, the matters raised in the submissions from the objectors had been satisfactorily addressed.

7. The Applicant sought leave to rely on amended plans during the hearing, and leave was granted.

Statutory considerations

Environmental Planning and Assessment Act 1979

8. Section 79C(1) of the EPA Act states:

“79C Evaluation

(1) Matters for consideration--general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

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

(iii) any development control plan, and

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

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

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

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

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

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

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

(e) the public interest.”.

Ryde Local Environment Plan 2014

9. Development on the Subject Site is subject to the provisions Ryde Local Environment Plan (LEP) 2014 (RLEP 2014). The aims of RLEP 2014 are:

(a) to encourage a range of development, including housing, employment and recreation, that will accommodate the needs of the existing and future residents of Ryde,

(b) to provide opportunities for a range of housing types that are consistent with adjoining development and the existing environmental character of the locality,

(c) to foster the environmental, economic, social and physical development of Ryde so that it develops as an integrated, balanced and sustainable city,

(d) to identify, conserve and promote Ryde’s natural and cultural heritage as the framework for its identity, prosperity, liveability and social development,

(e) to improve access to the city, minimise vehicle kilometres travelled, facilitate the maximum use of public transport and encourage walking and cycling,

(f) to protect and enhance the natural environment, including areas of remnant bushland in Ryde, by incorporating principles of ecologically sustainable development into land use controls,

(g) to preserve and improve the existing character, amenity and environmental quality of the land to which this Plan applies,

(h) in relation to economic activities, to provide a hierarchy of retail, commercial and industrial activities that enable employment capacity targets to be met, provide employment diversity and are compatible with local amenity.

10. Under RLEP 2014 the Subject Site is zoned R4 High Density Residential. The objectives of the R4 zone are to:

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

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

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

11. The proposed boarding house development on the Subject Site is permissible with consent within this zone.

12. Within RLEP 2014, cl4.3 provides development standards for height, and cl.4.4 provides development controls for floor space ratio.

State Environmental Planning Policy (Affordable Rental Housing) 2009

13. The proposed development is for construction of a boarding house and so requires consideration under Part 2 Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

14. The aims of SEPP ARH are:

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

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

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

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

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

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

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

15. Under cl8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevail to the extent of the inconsistency.

16. SEPP ARH requires under cl16A that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local development.

17. Also of relevance in this case are the provisions of cl29 of SEPP ARH, which provides standards that cannot be used to refuse consent for developments the subject of the SEPP. This clause provides:

29 Standards that cannot be used to refuse consent

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

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

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

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

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

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

(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,

(b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,

(c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(d) private open space if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(e) parking, if:

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

(ii) in the case of development not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and

(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,

(f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:

(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or

(ii) 16 square metres in any other case.

(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.

(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

18. SEPP ARH cl30 provides standards for boarding houses, as follows:

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

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

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

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

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

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,

(f) (Repealed)

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

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

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

19. SEPP ARH cl30A requires of that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Ryde Development Control Plan 2014

20. The site is also the subject of the Ryde Development Control Plan 2014 (RDCP 2014).

21. RDCP Part 3.5 (Boarding Houses) includes controls for boarding houses providing affordable housing options. The objectives of this part of RDCP 2014 are:

1. To recognise boarding house accommodation as a component of the City of Ryde’s residential housing mix.

2. To facilitate the provision of high quality affordable rental housing in the form of boarding houses where permissible in residential and business zones in the City of Ryde.

3. To support government policy which facilitates the retention and mitigates the loss of existing affordable rental housing.

4. To encourage appropriate design of boarding house development to ensure the impact and operation does not interfere with surrounding land uses and amenity.

5. To provide controls for boarding houses that are not within “accessible area” as defined under the ARHSEPP.

6. To ensure that boarding houses are designed to be compatible with and enhance the local area character and the desired future character.

7. To ensure that any building that has been developed or adopted into a boarding house maintains a satisfactory standard of amenity for both the needs of occupants and neighbours alike.

22. The provisions of RDCP Part 3.5 section 3.6 (Internal Building Design) are of particular relevance to the proposed development. These provide controls for the internal design of boarding houses, including in relation to kitchens and clothes drying areas.

Contentions

23. At the commencement of the hearing the Parties advised that, on the basis of the amended plans, the floor space ratio of the proposed development, which had been in contention between the Parties, was no longer pressed by the Respondent. It was agreed that the amended plans confirmed that the proposed development was compliant with the floor space ratio development standards within cl 4.4 of RLEP 2014.

24. The remaining contentions addressed during the hearing were:

1. Height - is the height of the proposed development acceptable?

2. Local character - is the character of the proposed development compatible with the local area?

3. Car and motor cycle parking - does the proposed development meet the parking requirements of SEPP ARH?

4. Compliance with RLEP 2014 – is the proposed development consistent with the requirements of RLEP 2014 in relation to clause 4.3 (Height) and with the broader aims of the RLEP 2014 as set out in its cl1.2?

5. Compliance with RDCP 2014 – is the proposed development consistent with the requirements of RDCP 2014, particularly with respect to the external design of the building, as well as with the design of internal kitchens and clothes drying facilities?

6. Impacts on adjacent residential buildings – will the proposed development impact unreasonably on neighbouring residential units?

7. Amenity of future occupants – will the proposed development give rise to unacceptable impacts on the amenity of future occupants of the development?

8. Impacts on built and natural environment - will the proposed development have unacceptable impacts on the built and natural environment?

9. Suitability for the site - is the proposed development suitable for the Subject Site?

10. Public interest - is the project in the public interest?

11. Stormwater management - are the proposed stormwater management arrangements satisfactory?

12. Vehicular access and car space design – is the design of the proposed vehicular access and car parking spaces satisfactory?

Is the height of the proposed development acceptable?

25. RLEP 2014 cl4.3 provides development standards for height within the Ryde Local Government Area, including the Subject Site.

26. The objectives of cl4.3 are:

(a) to ensure that street frontages of development are in proportion with and in keeping with the character of nearby development,

(b) to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area,

(c) to encourage a consolidation pattern and sustainable integrated land use and transport development around key public transport infrastructure,

(d) to minimise the impact of development on the amenity of surrounding properties,

(e) to emphasise road frontages along road corridors.

27. Under cl4.3, development on the Subject Site is subject to a height control of 11.5m. The proposal exceeds this height control by 0.4 m at the centre of its roof ridge line, and in other areas of the roof form by smaller margins.

28. The provisions of SEPP ARH cl29(2)(a) apply to the development and state:

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,

29. The maximum building height permitted for any building on the land is 11.5m as provided by cl4.3 of LEP2014. In this regard, the SEPP ARH provisions of cl29(2)(a) do not permit the proposed height exceedance.

30. However, the provisions of cl29(4) also apply to the proposed development. This clause provides:

(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).

31. As a consequence, consent may be granted to the proposed development notwithstanding the height exceedances, and without the requirement for the preparation of a written request to vary the development standard under the provisions of RLEP 2014 cl4.6.

32. The applicability of cl29(4) of SEPP ARH has recently been considered by Moore J in the case of 193 Liverpool Rd Pty Ltd v Inner West Council [2017] NSWLEC13, in which His Honour noted [at 44] that:

[44] ‘This is, self-evidently, a provision that does not provide an automatic pathway to approval but upon which requires consideration of discretionary matters in an assessment of the proposed height exceedance’.

33. Moore J also noted at [48] and [49] of that judgment that:

[48] I do not consider that a strict cl4.6-like approach is mandated because there is nothing in the terms of this provision of the SEPP that purports to impose fetters on the exercise of the discretion given by it in the fashion that arises from the very structured testing regime the flows from cl4.6 itself. The absence of such a regime, in my view, means that it is inappropriate to infer that such a strict regime would be required to be applied.

[49] A proper merit assessment having regard to the matters pressed by the Council of its completion contentions would, in my view, be the appropriate course to follow....

34. In the current case, an expert report in relation to planning matters was tendered during the hearing. This had been prepared by Mr Peter Smith and Mr Neil Kennan (on behalf of the Applicant) and Mr Jeff Mead and Ms Gabrielle Morrish (on behalf of the Respondent).

34. In the report, the experts confirmed that they were satisfied that the objectives of the height development control in RLEP 2014 were achieved by the proposed development, as amended, other than with respect to the objective in cl4.3(c) (see [26] above).

35. The Respondent noted, and the Applicant agreed, that this objective cannot be achieved on the Subject Site as it is an isolated site and so not amenable to consolidation.

36. Nevertheless, the planning experts agreed that the height, bulk and scale, and massing of the proposed development is appropriate for the Subject Site. They confirmed in their joint report that a compliant building with respect to the height development standard would have had larger impacts and reduced amenity outcomes in for future occupants of the proposed development.

37. Having considered the above, I agree with the planning experts that the proposed height of the building, including its proposed exceedances of the development standard within RLEP 2014 cl.4.3, at the roof ridge line and in other places, is acceptable, and should not be a basis for refusal of consent.

Is the character of the proposed development compatible with the local area?

Front landscaped area

39. Clause 29(2)(b) of SEPP ARH requires that the landscape treatment of the front setback area of the proposed development should be compatible with the streetscape in which the development is located.

40. An earlier design of the proposed development had proposed that a bin storage area be located in the front landscaped area of the Subject Site.

41. The amended plans provided during the hearing confirmed that this temporary bin storage facility had been relocated to the north of its originally proposed location, and was proposed to be positioned adjacent to the proposed driveway ramp to the development. As a consequence of this amendment, no bin storage area is to be included within the front landscaped area of the proposed development. The planning experts agreed in their expert report that they were satisfied that this outcome was consistent with the character of the local area.

Compatibility with the local area

42. Part 2 Division 3 of SEPP ARH cl30A requires that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

43. The Subject Site is located within an established residential neighbourhood containing a mixture of two, three and four storey apartment buildings. The Respondent’s statement of facts and contentions, tendered as evidence at the hearing, noted that many of the existing apartment blocks in the local area are oriented along the depth of their lot, with a primary outlook to the side boundaries of their lots.

44. Notwithstanding this, the Subject Site, which is identified as a narrow block, has restricted opportunities to orient the proposed development to its side boundaries. The Applicant said that, as a consequence, it was necessary to orient the proposed development to the front and rear of the Subject Site.

45. The planning experts, in their joint report, had agreed that the proposed inclusion of a break in the built form of the proposed development, which provided relief in the massing of the building design, also afforded an outlook from some future occupants towards a central courtyard space, increasing the amenity available to those occupants.

46. The Applicant noted that the amended plans had removed several previously proposed rooms in a lower ground level of the proposed development.

47. The Applicant said, and the Respondent agreed, that this amendment had removed a perception that the proposed development may present as a part four storey/part five storey building from certain perspectives.

48. The planning experts in their joint report agreed that, while the constraints presented by the narrow nature lot constrained design responses on the Subject Site, the bulk and scale of the building, as presented in the amended plans, was in character with the local area.

49. Having considered the above points, I agree with the planning experts that the proposed development, as represented in amended plans, is compatible with the character of the local area.

Does the proposed development meet the parking requirements of SEPP ARH?

50. SWEPP ARH cl29(2) require that a consent authority must not refuse consent to development to which this Division applies on the basis of several grounds. These include the provisions of cl29(2)(e) which are that consent should not be refused on the basis of:

(e) parking, if:

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

(ii) in the case of development not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and

(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,

51. Prior to the hearing, the Respondent contended that the design of the proposed development was not compliant with the requirements of SEPP ARH in relation to car and motorcycle parking.

52. The Respondent noted during the hearing that the Subject Site, given its proximity to Meadowbank railway station, is located within an accessible area.

53. The Parties confirmed during the hearing that the traffic experts, Mr Paul Corbett (for the Applicant) and Mr Daniel Pearse (for the Respondent), had agreed that the requirements of SEPP ARH with respect to parking were met by the proposed development under the amended plans and so, consistent with the provisions of cl29(2)(e) of SEPP ARH, consent for the proposed development cannot be refused on this basis.

Is the proposed development consistent with the requirements of RLEP 2014 in relation to clause 4.3 (Height) and with the broader aims of the RLEP 2014 as set out in its cl1.2?

Height

54. The compliance of the proposed development with respect to the height development standard within RLEP 2014 have been discussed and resolved above at [25-38], and so require no further consideration in this judgment.

Consistency with the aims of RLEP 2014

55. In relation to the consistency of the proposed development with the broader aims of RLEP 2014 as provided under cl1.2, the contentions raised by the Respondent related specifically to the aims provided under items subclauses (b) and (g) of RLEP2014 cl1.2. These are:

(b) to provide opportunities for a range of housing types that are consistent with adjoining development and the existing environmental character of the locality, and

(g) to preserve and improve the existing character, amenity and environmental quality of the land to which this Plan applies.

56. Both these aims are concerned with the compatibility of the proposed development with the character of the locality.

57. The compatibility of the proposed development with the local character has been previously addressed in this judgment at [39-49].

58. In addition, the planning experts, in their joint report, agreed that:

1. the street frontage of the proposed development is similar to nearby developments in that it presents as a three storey building to the street, with a hipped roof design, and is at a scale that is similar to other buildings in the area;

2. the proximity of the proposed development to its adjoining neighbours is considered adequate given the constrained nature of the site. They noted that the provision of two smaller buildings in the proposed design, rather than one long building form, assists in the presentation of the building to neighbouring properties;

3. any overshadowing impacts created by the proposed development are acceptable. They noted that the part of the proposed development that may cast a shadow on to any adjoining living room windows arises from building elements that comply with the height limit applicable within the Subject Site.

59. Having considered the above points, I have concluded that the proposed development is consistent with the aims of RLEP 2014.

Is the proposed development consistent with the requirements of RDCP 2014, particularly with respect to the external design of the building, as well as with the design of internal kitchens and clothes drying facilities?

General

60. During the hearing the parties agreed that the provisions of SEPP ARH prevail over those of RDCP 2014.

Design of kitchens and clothes drying facilities

61. The Parties noted that SEPP ARH does not include any specific requirements for the design of kitchens within a boarding house development.

62. The planning experts had noted that the kitchen size requirements under the RDCP 2014 are more onerous than would be required under SEPP ARH and need not be applied in a numeric sense.

63. Notwithstanding that, the planning experts in their joint report had agreed that the size of the proposed kitchenettes within the proposed development was acceptable.

64. The Parties agreed during the hearing that the amended plans provided for adequate clothes drying areas for future occupants of the proposed development, and noted that the planning experts in their joint report had also been satisfied that this was the case.

65. Having considered the above points, and notwithstanding the fact the requirements of SEPP ARH prevail over those of the RDCP 2014, I am also satisfied that, based on the design of the proposed development within amended plans and the advice of the planning experts, the initial contentions of the Respondent in relation to the requirements of RDCP 2014, have been adequately addressed.

Will the proposed development impact unreasonably on neighbouring residential units?

66. The Respondent’s contention concerning the risk for the proposed development to impact on neighbouring residential units concerned the potential for overshadowing impacts.

67. As noted above at [58], the planning experts agreed that any overshadowing impacts arising from the proposed development are acceptable.

68. The planning experts, in their joint report, have confirmed that any shadows cast by the proposed development are acceptable as the design of the building facilitates at least two hours of solar access to the living rooms of adjoining residential units. They noted that this had been demonstrated by the shadow analyses provided by the Applicant in the amended plans.

69. The planning experts also agreed within their joint report that the privacy relationships with adjoining developments were acceptable based on the planned orientation of the buildings and the privacy treatments proposed to windows and to open space areas within the proposed development.

70. Having considered the above points, I agree with the planning experts, that the proposed development will not unreasonably impact on neighbouring residential units.

Will the proposed development give rise to unacceptable impacts on the amenity of future occupants of the development?

71. During the hearing the Parties confirmed that they accepted the agreement of the planning experts that the amended plans for the proposed development provide an acceptable level of amenity to future occupants of the building.

72. The planning experts had noted in their joint report that the separation distance between the buildings within the proposed development and neighbouring buildings ranged between 8m and 8.5m. The planning experts had agreed that no specific standards were applicable to the proposed development in terms of separation distances to adjoining buildings. However the experts had noted that it was proposed within the amended plans to offset the placement of windows in relation to the location of rooms on opposing sides of the building, and along with the setbacks to adjacent buildings. They agreed that, given these design responses, the proposed separation of the proposed development to neighbouring buildings was acceptable.

73. The planning experts had also noted in their joint report that the amended plans had removed previous proposals for the location of boarding rooms on the lower ground level of the development. They agreed that this addressed the Respondent’s earlier contention concerning the level of amenity that would be afforded to occupants of these previously proposed rooms.

74. Having considered the above points, I agree with the planning experts that the proposed development will not give rise to unacceptable impacts on the amenity of future occupants.

Will the proposed development have unacceptable impacts on the built and natural environment?

75. Prior to the hearing, the Respondent contended that the proposed development may have an adverse impact on the built and natural environment, specifically in relation to the following points:

1. inconsistency with the existing and desired future character of the locality;

2. unacceptable visual impacts on the streetscape;

3. unacceptable impacts on neighbouring properties;

4. unresolved design issues concerning roof form, the internal separation of the buildings, and the design of lower ground level elements.

76. The planning experts in their joint report agreed that the amended plans had resolved these issues. In particular, the experts had noted that the amendments had resolved contentions in relation to the following:

1. the streetscape presentation, which was resolved through the deletion of waste storage areas within the front setback;

2. the potential for overshadowing impacts on adjoining properties, which was resolved through refined solar access analysis confirming that any potential impacts were acceptable;

3. the design for the rear roof of the building, which was resolved through a revision to the building’s parapet design;

4. the separation between the proposed east and west building elements, which was resolved through an increase to the width of this space;

5. the landscaping along the side boundaries, and setbacks from the basement level of the building to the northern boundary;

6. the design of the rear apartment, which in the amended plans provided a better relationship between the ground floor and rear setback open space areas;

7. the windows for internal elevations to the east and west buildings, which had been increased in size.

77. The planning experts also recommended that the Applicant be required, through the inclusion of a deferred commencement condition, to provide an amended landscape plan, for review by Council, that would include:

1. details of proposed finished ground level across the site; and

2. the height and location of all proposed fencing and retaining walls..

Is the proposed development suitable for the subject site?

78. The Respondent had contended that, based on the original plans, the proposed development was not suitable for the Subject Site.

79. However, the planning experts within their joint report agreed that, notwithstanding the earlier contention, the proposed development as represented in the amended plans was now suitable for the Subject Site.

80. Having reviewed the plans and considered the opinion of the planning experts, I agree the proposed development, as represented in the amended plans, is now suitable for the Subject Site.

Is the project in the public interest?

81. The planning experts agreed in their joint report that the proposed development, as reflected in the amended plans, is in the public interest.

82. I agree with the opinion of the planning experts that as a result of amendments to the plans, and the mitigation of potential impacts introduced through those amendments, the proposed development is now in the public interest.

Are the proposed stormwater management arrangements satisfactory?

83. During the hearing the Parties confirmed that the Respondent’s contentions concerning stormwater management arrangements for the proposed development had been resolved through the following amendments to plans:

1. the removal of the previously proposed units at the lower ground level, which addressed a contention in relation to flooding risk to these areas;

2. the removal of certain trees on the site, which had previously presented a risk to the management of stormwater run-off during flood conditions on the Subject Site;

3. the relocation of a proposed on-site detention tank so as to a avoid conflict with a proposed courtyard area within the proposed development.

84. I agree with the Parties that the contentions with respect to stormwater management have been satisfactorily resolved through these amendments to plans for the proposed development.

Is the design of the vehicular access and the proposed car spaces adequate?

85. During the hearing the Parties agreed that this concern, which related to an earlier version of the plans for the proposed development, had been resolved through changes made to the design of vehicle access and parking spaces and provided within the amended plans.

Conclusion

86. Following the conclusion of the hearing, the Parties submitted agreed draft conditions of consent for the proposed development which reflected the amended plans and recommendations made by the planning experts.

87. Based on this, and on the above considerations, I have concluded that the proposal for the demolition of existing structures and the erection of a boarding house with basement car parking on the Subject Site, as proposed within the Applicant’s amended plans, and for which leave was granted, should receive development consent, subject to conditions.

Orders

88. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA LDA/2016/0517 for the demolition of existing structures and the erection of a boarding house with basement parking, subject to the conditions of consent annexed hereto as Annexure ‘A’.

3. The exhibits are returned with the exception of Exhibits A, B and C.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (C) (475 KB, pdf)

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Decision last updated: 10 November 2017