Mateer v City of Ryde Council - [2016] NSWLEC 1440

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Mateer v City of Ryde Council [2016] NSWLEC 1440
Hearing dates: 8 September 2016
Date of orders: 20 October 2016
Decision date: 20 October 2016
Jurisdiction: Class 1
Before: Morris C
Decision:
Refer para. 56

Catchwords: DEVELOPMENT APPLICATION: boarding house, compatibility with character of local area
Legislation Cited: Land and Environment Court Act 1979; Ryde Local Environmental Plan 2014; State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited: City of Ryde Development Control Plan 2014
Category: Principal judgment
Parties:
Rianon Mateer (Applicant)
Ryde City Council (Respondent)
Representation:
Counsel:
Mr B O’Gorman-Hughes (Applicant)
Ms A Pearman (Respondent)

Solicitors:
Mr V Conomos
Conomos Legal (Applicant)
Mr P Kapetas
Ryde City Council(Respondent)

File Number(s): 151300/2016

Judgment

Mr Mateer is the owner of a property known as No. 26 Buffalo Road, Gladesville and authorised lodgement of Development Application No> LDA/2015/0527 with Ryde City Council seeking consent to construct a one and two storey building for use as a boarding house containing 12 boarding rooms, manager's accommodation and a single storey garage. The Council had not determined the application within the prescribed period and he is appealing the deemed refusal.
The contentions in the case are whether the development complies with relevant development standards, local planning controls and if the design of the development is compatible with the character of the local area.

The site and its context

The site is legally described as Lot 61 in DP 657140 and its street address is 26 Buffalo Road, Gladesville. It is located on the southern side of the road between a residential dwelling and an industrial building and is a regular shaped allotment with a single frontage of 12.19m, depth of 60.1m and site area of 732.9m². The site is currently vacant except for a single storey fibro garage which is located towards the centre of the site, along the eastern side boundary. That garage formed part of the “original lot” that contained the site and No 24 Buffalo Road, the adjoining allotment to the east which now contains a dwelling house without any vehicle access.
The land falls approximately 2m from the rear to Buffalo Road.
The site is located on the edge of the Gladesville industrial precinct at the zoning interface between that industrial zoned land and a residential zone to the east, south and north east of the site. Nelson Street is opposite the site and that roadway also forms the boundary between the industrial and residential precincts. The industrial precinct comprises a range of industrial buildings and factory units varying in size and footprint.
Residential development to the east of the site primarily comprises detached single storey dwelling houses however there are also attached housing and a former local shop in close proximity to the site.

Background and the proposal

The application was lodged with the Council on 23 October 2015 and had been notified to local residents, some of whom had objected to the proposal.
The appeal was subject to mandatory conciliation on 31 March 2016 with further conferencing in June 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 17 June 2016, pursuant to s 34(4) of the LEC Act.
Following the conciliation conference the applicant sought and was granted leave to rely on amended plans and documents on 1 July 2016. It is those plans that are currently before the court.
The plans propose the construction of a two storey building towards the centre of the site, parking for three vehicles between that building and a proposed 6m wide landscaped setback to Buffalo Road. A single storey building is proposed with a 3m separation from the main the building at the rear. A 10.1m setback would be provided to the rear boundary from that building.
The main building would contain five rooms on the ground floor, two of which are accessible units and one the manager’s residence and a laundry. Six boarding rooms are proposed on the upper level. The detached rear building would contain a common room and an additional boarding room so that a total of 12 rooms, one of which is the manager’s dwelling would be provided on site.
Parking for three motor vehicles, including one accessible space and three motorcycles is provided at the front of the site with provision for bin storage and bicycle parking adjacent to the proposed common room. The two storey building would be erected on a minimum setback of 15.138m to Buffalo Road (first floor balcony) with the front ground floor wall setback 17.605m.

The planning controls

The site is zoned R2 Low Density Residential under the provisions of Ryde Local Environmental Plan 2014 (LEP). The proposed development of a boarding house is a land use that is identified as being permissible with consent within this zone. Clause 2.3(2) of the LEP states that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To provide for a variety of housing types.

Part 4 of the LEP contains Principal development standards with clause 4.4 Floor space ratio (FSR) prescribing a maximum FSR of 0.5:1 for the site and clause 4.5 prescribes a maximum building height of 9.5m.
The application was lodged pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). Part 2, Division 3 applies to boarding houses. The site is within an accessible area for the purposes of the policy. Clause 29 of SEPPARH provides standards that cannot be used to refuse consent and, in this case, the FSR provision is in dispute. It is common ground that the development would comply with the maximum building height development standards under both the LEP and policy and that the room sizes accord to those specified and are suitable as double rooms. Other matters in dispute are whether the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.
Clause 30 provides standards for boarding houses and requires satisfaction as to maximum room sizes, occupation, adequacy of bathroom and kitchen facilities, the provision of a studio or on site dwelling for a boarding house manager (only required if the boarding house has capacity to accommodate 20 or more residents) and the provision of motorcycle and bicycle car parking. It is agreed all the relevant provisions are satisfied by the proposal.
Clause 30A states that a consent authority must not consent to development to which this division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The Council contends the proposal offends this provision.
City of Ryde Development Control Plan 2014 (DCP) applies to the site with Part 3.5 Boarding Houses particularly relevant to the case. The council also says the provisions of Part 3.3 Dwelling Houses and Dual Occupancy (attached) are relevant to the siting of buildings.

The issues

The council accepts that the site is suitable for development as a boarding house however it is not satisfied that the design and siting of buildings as proposed is appropriate. The contentions in the case are whether the FSR control is met; whether the design of the development is compatible with the character of the local area, whether adequate landscaped area is available within the front yard because more than 40% of the area is hard paved and whether relevant controls contained in the DCP are met.

The evidence

The hearing commenced on site with evidence heard from an objector to the proposal who resides to the immediate east of the site (No. 24 Buffalo Road). Her concerns were the scale and bulk of the building and its proximity to the boundary and overshadowing of windows and backyard areas.
Expert town planning evidence was heard from Mr A Betros for the applicant and Ms K Gordon for the council.
The experts agree that the provision of a boarding house is acceptable on the site, the principal issue, on which they disagree, is whether the proposed design of the building is acceptable in the streetscape and in regard to the character of the area.
The first point of concern in relation to the design is the front setback of the built form, which is sited further back than the adjoining buildings either side. The second point of concern is the extent of the two storey built form towards the rear in regard to its visual bulk when perceived from the rear of adjoining dwellings to the east of the subject site. Other concerns upon which no agreement had been reached during the joint conferencing was the method of calculation of FSR, the suitability of the design and location of the entrance into the boarding house, the size of the common room and the adequacy of the Plan of Management (POM).
At the commencement of the hearing the applicant provided additional information in relation to the calculation of FSR and the detailed design of proposed louvres that were to be installed at either end of the corridor that provided access to the rooms on each level of the two storey building. As a result of that information, the Council no longer presses the contentions in relation to FSR as it was satisfied that the development was compliant with the 0.5:1 FSR.
The experts had considered the shadow diagrams that had been prepared and both agreed that they were a correct representation of the impact of shadowing at the time nominated on those plans. Ms Gordon agrees the dwelling owned by the objector is shadowed at noon and there would be no change to shadow at this time. She considers the most important section of the rear yard area where shadow should be assessed is the area adjacent to the rear of the dwelling which would be the principal open space of that residence.
The DCP does not define principal open space but rather, specifies that sunlight to at least 50% of the principal area of ground level private open space of adjacent properties is not reduced to less than two hours between 9AM and 3PM on June 21 and windows to north facing living areas of neighbouring dwellings of at least three hours of sunlight between 9AM and 3PM on June 21 over a portion of the surface, where this can be reasonably maintained given the orientation and topography of the subject and neighbouring sites.
Both experts agree the location of the principal open space area is subjective, particularly in terms of the adjoining property, No. 24 due to the large backyard area available at the rear of the single-storey cottage. Ms Gordon is unsure whether the area she considers to be the principal open space would retain two hours sunlight and she says, if the dining room window along the western side wall is considered to be a living room that window would not receive three hours sunlight however if it was not a living room compliance would not be an issue. The evidence of the owner of the property is that the remaining windows in the wall are bedroom or bathroom windows and therefore not subject to the DCP control. Mr Betros considers there is an area in proximity to the dwelling that could meet the definition of principal open space and achieve the requisite two hours sunlight.
The provisions of clause 30A of SEPPARH require the consent authority to be satisfied that the design of the development is compatible with the character of the local area. The council contends the excessive setback of the proposed to building from Buffalo Road is inconsistent with the established front building line and will be detrimental to the streetscape. In addition it says the visual bulk of the proposed two storey component of the building is poorly relieved by suitable articulation and extends significantly into the traditional rear yard area, resulting in a building that is uncharacteristic of the area as viewed from the rear yard of Nos. 22 and 24 Buffalo Road
Ms Gordon says the main building with its setback of 15.1m in a streetscape that is characterised by setbacks of approximately 7.5 to 8m with some variation, the variations are generally to provide a lesser setback such as the shop which is located a few properties to the south of the site, rather than provide a significantly greater setback. The excessive setback is to provide parking in front of the building which is uncharacteristic in the residential zone. The design with the setback and provision of parking in the front yard results in the front door not being clearly visible, hidden from view with no separate pedestrian path. This raises security concerns with places of concealment existing and reduces the safety of the boarding house for future borders. The excessive setback from the frontage of the proposed building pushes the bulk of the building to the rear of the site and results in an unacceptable bulk at the rear in what would traditionally be the landscaped rear yard area of the site. The current proposal extends a two storey component well past the established building line and provides little articulation to the two storey wall, with no reduction in bulk by way of increased setbacks or stepping of the wall away from the southern boundary. Were the building relocated to be closer to the frontage of the site, Ms Gordon says this bulk would be eliminated.
Ms Gordon had considered Mr Betros’ suggestion that changing the roof form at the rear of the building to a skillion roof would reduce the visual bulk however does not concur with that suggestion as the roof form does not play a significant role in visual bulk when viewed from the immediately adjoining property which is the most affected property. Whilst the site is at a zone boundary, the existence of a factory to the north west of the site does not mean the sensitive interface of the proposal with low density housing to the south west of the site should be ignored. If the building was built to the north western boundary is could provide a greater setback to the south western boundary and provide for greater articulation in the built form and landscaped setting.
Ms Gordon considers that could be an appropriate response to the transition between the zones. She also notes that if the car parking was incorporated into the built form (and appropriately addressed so that it is of low density residential scale and design), the entire first floor of the development could be moved forward over the parking, reducing the bulk at the rear of the site to a single storey form. She considers this would resolve both the visual bulk concern at the rear of the site and the streetscape concern with the excessive front setback to the proposed development. In her opinion such development would be compatible with the character of the area whilst achieving the same density of development.
Mr Betros disagrees and says the two storey form with landscaped front setback achieves a compatible (i.e. not the same but can coexist) with the variety of built forms, it uses and setbacks in the immediate visual catchment from the front of the subject site. The two storey presentation with gable frontage sits comfortably in the streetscape. He does not agree that the built form must be sited in line with the adjoining buildings as it would be unable to provide landscaping and three car spaces behind (which would be able to enter an exit in a forward direction) because the site width prevents the car parking being provided within a built form in an integrated manner so therefore the proposed solution represents an appropriate design response.
Mr Betros says if the built form were sited forward of the adjoining buildings it may have a greater and unacceptable streetscape impact however the provision of a substantial landscaped area with unobtrusive hard stand parking and an appropriate built form behind represents a reasonable and compatible design approach.
In regard to the presentation of the built form at the rear, he says the impacts are limited to visual bulk and not in relation to any privacy or shadow impact and he considers the siting of the development at the transition between the R2 low density residential zone and the B4 mixed use zone represents an appropriate relationship, noting that the adjoining built form to the West extends beyond that proposed. Mr Betros says the provision of landscaping along the eastern side of the site combined with the limitation of the height associated with the rear built form provides a suitable relationship, noting that two storey developments are permitted on the subject and adjoining sites to the east.
He also notes that the adjoining sites to the east are underdeveloped and could also be developed with a two storey scale which could extend further into the site noting that these sites are 60m deep. He had suggested as discussed above, that if the pitched roof form over the stairwell and re-component were replaced with skillion roof this would reduce the overall height of the proposal when viewed obliquely from the neighbouring residential rear yards noting that the primary orientation of those dwellings is to the front and rear and the built form at the rear of the site would only be viewed from the rear yards when looking sideways.
Mr Betros had also considered Ms Gordon's suggestion that the at grade car parking area be redesigned with the upper level of the boarding house moved towards the street frontage however says this would require a zero lots line and would be more bulky than the building as proposed. It would also result in greater overshadowing of the adjoining dwelling house and add at least 120 m² in building volume to the bulk of the building and is unfeasible. Ms Gordon says that having that additional bulk in that location is appropriate.
In determining the local area, the experts agree that it would extend into the industrial area however Ms Gordon would not go quite as far west as Mr Betros considered appropriate and would place more weight on the residential area because the site and development are located within the residential zone.
In relation to the DCP controls, Mr Betros acknowledged they discourage side entries and he agrees that the provision of a front entry would be preferable however does not consider that to be a determinative issue with the design of the development. The provision of signage, windows, gate and video surveillance cameras satisfactorily addressed the objectives of providing for a safe environment within the site.
The DCP requires the communal room within a boarding house to have a minimum area of 30m² with the proposal providing only 15.2m². Ms Gordon says that this is unacceptable as the provision of such facilities is important for socialising however Mr Betros says that is acceptable in this case due to the large size of rooms. The experts considered the possibility of increasing the size of the common room by extending the detached rear building to the adjacent boundary with the industrial zone and agreed that this would improve the amenity of the development and result in no adverse impacts even though the additional floor space would result in an exceedance of the 0.5:1 FSR. Mr Betros says that it would be possible to increase the floor area of the common room to 28 m² which would result in an FSR of 0.51:1. The experts agreed that the addition was acceptable, would not be visible from any vantage point and would not compromise the amenity of any rooms within the development.

Ms Gordon considered however that it was important the FSR control was met due to the bulk of the building in the central portion of the site and advocated the reduction in length of the two storey building by 400mm to maintain building separation without reducing the amenity of the rooms. The applicant prepared sketch plans that extended the common room to the western side boundary, required the relocation of the bicycle parking bays and be an area and is used the floor area of unit six so that the line of kitchen cupboards and wardrobe finished in line with the entry wall to that unit.
That plan, exhibit G, is one that the applicant says would address the Council’s concerns in relation to the size of the common room.

Conclusion and findings

The council accepts that a boarding house in some form is an appropriate development on the site. The main difference between the parties is where the two storey building bulk should be located on the site and whether the setback from Buffalo Road is appropriate in the context of the local area, therefore if the design of the development is compatible with that character. Consequential amenity impacts to the adjoining property, No 24 Buffalo Road flow from the siting of the development, particularly in terms of overshadowing and visual impact are further considerations.
Ms Gordon’s evidence is that the development should be redesigned to move the bulk of the building forward and above the carpark as that would result in a more compatible development and reduce the impact on the adjoining property in terms of solar access to its backyard and reduce the height and bulk of the building when viewed from with that yard.
Whilst the Court must be satisfied the design of the development is compatible with the character of the local area and is consistent with relevant planning controls, it does not have to consider whether an alternate design is a better solution, or design nirvana.
The local area in which the site is located is a mix of industrial and residential buildings. There is no consistent setback along the southern side of Buffalo Road in the visual catchment of the site. Nor is there a consistent setback with the four residential sites to the east. It is evident that there is an even greater range of setbacks on the northern side of the road in both the industrial and residential zones. For that reason, I do not accept the council’s contention that there is a need to site the building forward and in line with No 24 to be compatible with the character of the local area.
There are a number of sites where parking is provided forward of the building in the local area. On some sites no landscaping is provided and in others varying landscaped setbacks are provided. The frontages of some of the industrial sites comprise 100% concreted areas and others contain a variety of landscaped settings.
Because the site has been subdivided from it “original lot” as referred to at [3], it has only been developed with the freestanding garage that remains on the site. That has been the character of the site for a number of years and therefore, the erection of the building on a greater setback than provided for under the DCP controls, noting they apply to dwelling houses and dual occupancy developments only, is not incompatible with that existing character. Nor would it be incompatible with the future character of the area due to the location of the site at the interface of the residential and industrial zones.
Similarly, the council does not contend that the proposed landscaped treatment of the 6m setback area forward of the proposed parking spaces is unsatisfactory. Its contention relates to the amount of hardstand in the building alignment area which it says exceeds the 40% maximum provided for under the DCP control. Due to the narrow site width and the need to provide separate pedestrian and vehicle entrances, the extent of hard paved area within the 6m setback has been minimised.
The tree species shown on the landscape plan will screen the carparking area once those plants mature and for that reason I consider the treatment of that area would be compatible with the streetscape in which the building is located and strict compliance with the DCP control is not required, again noting the control applies to dwellings and dual occupancies, not boarding houses.
The adjacent industrial building extends beyond the rear boundary of the site and for that reason I cannot accept the council’s contention that the siting of the building is uncharacteristic of the area as viewed from adjoining properties. Whilst there are a number of outbuildings in rear yards and the scale of those buildings is significantly less that the industrial development I do not consider that there is evidence of a consistent character in the backyards of the local area such that consent should be refused.
The remaining contentions have been resolved through the provision of amended plans and additional information. The contention in relation to the size of the common room could be addressed through the submission of amended plans as described at [39]. I consider that a common room with a floor area of approximately 28sqm would be adequate for a boarding house of the size proposed, particularly having regard to the generous room sizes. I do however accept Ms Gordon’s’ evidence that it is appropriate to ensure that the FSR control for the site is met and therefore any change to the plans to increase the size of the common room should incorporate a reduction in the footprint of the two storey element of the building. As stated above, a reduction in the length of that building by 400mm and increasing the separation between the one and two storey buildings would be required. it is a matter for the applicant whether 200mm is taken from each row of rooms or whether the rear rooms are reduced in length by 400mm. Either way, I am satisfied that the rooms would retain sufficient levels of amenity.
For the above reasons, I find that, with the amendments discussed, the design of the development would be compatible with the character of local area and consistent with the relevant controls contained in the LEP and DCP.
In accordance with the provisions of s79C of the Environmental Planning and Assessment Act 1979 I must also have regard to those matters raised in submissions made to the council. In this regard, I accept Mr Betros’ evidence that the increased setback ensures the retention of solar access to the side windows of No 24 Buffalo Road and also provides for sunlight to an area of open space in proximity of the rear of the existing dwelling in accordance with the council’s controls in its DCP. I consider this option is preferable to the alternate proposal advocated by Ms Gordon which would result in the loss of solar access to the windows and additional building bulk and scale.
In view of my findings as detailed above and subject to the receipt of amended plans that provide for the common room to be increased so that its area is at least 28sqm and its western wall is located on the common boundary with the adjoining industrial building and the FSR of the proposal does not exceed 0.5:1 through the reduction in length of the two storey building, there is no reason why consent should not be granted. The POM should also be amended to reflect the Security Plan, Exhibit C.
The Orders of the Court are:

The applicant is to file amended plans, both in hard copy and PDF format, and amended POM that reflect the findings of this judgment within 7 days.

The council is to file and serve, in Word format, conditions of consent, generally in accordance with exhibit 4 and amended to reflect the plans and POM referred to at (1) within 7 days of receiving the plans.

On receipt of those plans and conditions, final orders will be made in Chambers.

Addendum made on 20 October 2016

In accordance with the terms of paragraph 55 and the directions in my judgment of 27 September 2016, on 20 October 2016 the parties provided me with the agreed conditions of consent following the applicant providing me with amended plans on 17 October 2016. I am satisfied that the conditions of consent/amended plans accord with my findings and accordingly I make orders in chambers as follows:

The appeal is upheld.

DA No LDA/2015/0527 for the construction of a one and two storey building for use as a boarding house containing 12 rooms, one of which is manager’s accommodation, is approved subject to the conditions in Annexure A.

The exhibits, other than exhibits B, G and 5, are returned.

_____________________

Sue Morris

Commissioner of the Court

151300.16 Morris - (C) 20.10.2016 (1.19 MB, pdf)

151300.16 Morris - Plan - Common Room (266 KB, pdf)

151300.16 Morris - Plan - Gross Floor Area Diagram (233 KB, pdf)

151300.16 Morris - Plan of Management (730 KB, pdf)

151300.16 Morris - Plans (2.83 MB, pdf)

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Amendments

20 October 2016 - Addendum added to finalise orders

Decision last updated: 20 October 2016

Medium Neutral Citation:	Mateer v City of Ryde Council [2016] NSWLEC 1440
Hearing dates:	8 September 2016
Date of orders:	20 October 2016
Decision date:	20 October 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Refer para. 56
Catchwords:	DEVELOPMENT APPLICATION: boarding house, compatibility with character of local area
Legislation Cited:	Land and Environment Court Act 1979; Ryde Local Environmental Plan 2014; State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	City of Ryde Development Control Plan 2014
Category:	Principal judgment
Parties:	Rianon Mateer (Applicant) Ryde City Council (Respondent)
Representation:	Counsel: Mr B O’Gorman-Hughes (Applicant) Ms A Pearman (Respondent) Solicitors: Mr V Conomos Conomos Legal (Applicant) Mr P Kapetas Ryde City Council(Respondent)
File Number(s):	151300/2016