Millennium Design Consultants v The Hills Shire Council

[2015] NSWLEC 1002

Land and Environment Court

New South Wales

Medium Neutral Citation:

Millennium Design Consultants v The Hills Shire Council [2015] NSWLEC 1002

Hearing dates:

8 – 9 December 2014

Decision date:

14 January 2015

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal dismissed

Catchwords:

Development application: boarding house, amalgamation of allotments, orderly and economic use of land, compatible with the character of the local area.

Legislation Cited:

Land and Environment Court Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; Environmental Planning and Assessment Act 1979; The Hills Local Environmental Plan 2012; State Environmental Planning Policy (Infrastructure) 2007; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development

Cases Cited:

The Hills Shire Council v Sales Search Pty Ltd [2013] NSWLEC 103; Zhang v Canterbury City Council [2001] NSWCA 167; Cornerstone Property Group Pty Ltd v Warringah Council[2004] NSWLEC 189; Karavellas v Sutherland Shire Council [2004] NSWLEC 251; Thiessen Architects v Sutherland Shire Council [2004] NSWLEC 480

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Millennium Design Consultants (Applicant)

The Hills Shire Council (Respondent)

Representation:

Counsel:
Mr R O’Gorman Hughes (Applicant)

Mr M Staunton (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10290 of 2014

Judgment

1. Millennium Design Consultants (MDC) sought consent from The Hills Shire Council to construct a five storey, 25 room boarding house with basement carpark for 11 vehicles, at 269 Pennant Hills Road, Carlingford. The council refused consent on 6 May 2014 and MDC is appealing that decision.

2. The issues of the case are whether the application is consistent with the character of the local area; contributes towards the orderly and sustainable development of the local government area; complies with the relevant planning controls and the site is suitable for the proposed development.

The site and its context

3. The site is described as Lot 4 in DP 9614, known as No 269 Pennant Hills Road, Carlingford. It is rectangular in shape with a frontage of 15.14m, depth of 50.29m and site area of 765.1sqm. The site has an approximate crossfall of 2 metres from north to south and contains a single storey residential dwelling.

4. Adjoining the site to the north are two dwellings on battle-axe allotments (the battleaxe lots) with a transmission easement running along the access handle and the land to the rear of the site. There are other dwellings to the south on regular allotments which front Pennant Hills Road. Janell Crescent is a short cul-de-sac further to the south and Shirley Street is to the west. These streets also contain dwelling houses, with some three storey flat buildings in Shirley Street. A large residential unit development has been approved over many of these allotments including land to the north of the battle-axe lots (the Key Site). Residential flat buildings are located on the opposite side of Pennant Hills Road. The Carlingford shopping centre is located to the north east of the site, the closest business premises being some 100m and Carlingford Railway Station an approximately 400m walk to the south west.

Background and the proposal

5. The application was lodged on 23 December 2013 and refused by council on 6 May 2014 with the appeal filed on the same day. The matter commenced as a conciliation conference under S34 of the Land and Environment Court Act 1979 and a number of the contentions in relation to lack of information were resolved however the strategic planning issues remain.

6. The applicant was granted leave by the Court in December 2014 to rely on amended plans. As a result of those amendments, the council no longer pressed Contentions 6 and 7. Those plans, Exhibit D, propose demolition of existing structures and construction of a five storey boarding house, containing 25 rooms and caretaker’s residence, under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). The building would contain a single level basement car park for 11 vehicles, 6 motor cycles and five bicycles and associated storage. The ground floor comprises indoor and outdoor communal space, caretaker’s residence and three boarding rooms. Levels 1 to 4 contain the remaining 22 boarding rooms.

7. Each room incorporates bathroom and kitchen facilities, living space and sleeping area and are suitable to accommodate two persons. A lift provides access to all levels of the building.

8. Access to the proposed basement is from a 6m wide driveway off Pennant Hills Road at the southern end of the site. The basement occupies the whole width of the site with setbacks of 150-300mm.

9. The proposed building would be constructed on a 10m setback to Pennant Hills Road and 8m off the rear boundary. For a length of approximately 21m (excluding a 2m x 2m light well), the ground and upper floors would be erected on the southern boundary of the site adjoining the dwelling at No. 267 which is located approximately 900mm from the common boundary. Setbacks of 3m and 6m are provided to the northern boundary. The maximum height of the building is approximately 18.5m.

The issues

10. The remaining contentions are whether the development is orderly and economic use of the land and therefore consistent with the objectives of the Environmental Planning and Assessment Act 1979 (EP&AAct); it integrates with the character of the locality, is consistent with planning controls for site amalgamation and therefore results in the subject site and surrounding lots not being developed to their full potential and in accordance with surrounding development; will sterilise the future development of adjoining sites and whether setbacks are adequate and result in amenity and privacy impacts and will result in unacceptable dilapidation impacts on the adjoining properties.

The planning controls

11. The site is zoned R4 High Density Residential under The Hills Local Environmental Plan 2012 (LEP). Boarding houses are permitted with consent in that zone however, the application was lodged under the provisions of SEPPARH.

12. Clause 2.3 of the LEP requires the consent authority to have regard to the objectives of the R4 zone when determining an application for development within that zone. The objectives of the R4 zone are:

• 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 encourage high density residential development in locations that are close to population centres and public transport routes

13. Land to the rear of the site is zoned RE1 Public Recreation and includes a strip of land, said by the council to be 7m wide, to the north of the site and partially affecting the battle axe lots that provides access to the central area from Pennant Hills Road. A similar handle provides access at the southern end of the central open space zone from Shirley Street.

14. Part 4 of the LEP contains Principal development standards and those relevant to the application are 4.1A – Minimum lot sizes for dual occupancy, multi dwelling housing and residential flat buildings; 4.3 – Height of buildings and 4.4 – Floor space ratio (FSR).

15. Clause 4.1A establishes a minimum lot size for residential flat buildings in the R4 zone of 4,000 square metres. The objective of the clause is to achieve planned residential density in certain zones. Despite those provisions, subclause (3) provides for exceptions to that standard and is in the following form:

(3) Despite subclause (2), development consent may be granted to development on a lot in a zone shown in Column 2 of the Table to subclause (2) for multi dwelling housing or residential flat buildings where the area of the lot is less than the area specified for that purpose and shown in Column 3 of the Table, if Council is satisfied that:

(a) the form of the proposed structures is compatible with adjoining structures in terms of their elevation to the street and building height, and

(b) the design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable acoustic and visual privacy, and

(c) the dwellings are designed to minimise energy needs and utilise passive solar design principles, and

(d) significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas.

16. The maximum height of building permitted on the site under clause 4.3 is 27m and the proposed development is below that height and, with a FSR of 1.43:1 is also below the 2.3:1 maximum permitted under clause 4.4 of the LEP.

17. The provisions of Part 2, Division 3 of SEPPARH apply to boarding houses and permits that development in the R4 zone with consent. The proposal is compliant with all those standards contained in clauses 29 and 30 of the policy. Clause 30A is in the following form:

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.

18. Clause 8 of SEPPARH is in the following form:

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.

19. The Hills Development Control Plan 2012 (DCP) applies to the site and in particular the provisions of Part A - Introduction; Part B Section 5 – Residential Flat Building; Part C Section 1 – Parking and Part D Section 12 – Carlingford Precinct.

20. In accordance with the provisions of clause 1.4, site specific provisions apply in the event of any inconsistency with the controls in the general section of the DCP. The general objectives for residential flat buildings are at clause 3.1 as follows:

(i) To ensure development sites have sufficient areas to provide adequate access, parking, landscaping and building separation.

(ii) To provide for the orderly development of residential land through the consolidation of lots.

(iii) To ensure development on a particular site has due regard to adjoining developments in accordance with Council’s ESD objective 7.

21. The site is within Precinct South of the Carlingford Precinct and therefore those controls contained in Part D Section 12 of the DCP apply. A number of key sites are identified in that section including the Janell Crescent site or Block 17 site. It is this key site that adjoins the site referred to at [4]. The key sites are said to comprise large land holdings that are mainly under single ownership, in locations critical to the establishment of a village centre and suitable for buildings containing a relatively large number of units. As a result, developments of a substantial size and complexity can be delivered promptly. In this way the development of these sites will be the catalyst for the redevelopment of the Precinct.

22. The desired future character of the Southern Precinct is described in clause 3.3.1 as follows:

The character of the southern end of the Precinct in the vicinity of the train station will be largely determined by the development of landmark buildings on the key sites and their role in creating street oriented village built form and character, open spaces and a civic plaza linked to the station.

In key sites affected by electricity easements, developments can contribute to publicly accessible open space with strong connections to the local open space network and civic area.

Buildings on key sites and in the southern side of the Precinct generally have been placed to provide transition in building scale and to provide natural ventilation, solar access, outlook from apartments and year round sunlight to communal open spaces.

Streetscapes are to be resident and visitor friendly in an urban landscaped setting associated with a street hierarchy that promotes a safe pedestrian and vehicular environment. The landscape works in the public realm help to define the character areas in the Precinct. These characters range from the more urban, civic and train station oriented village to the suburban character further from the train station.

23. Part 3.4 Access and Circulation provides for the improvement of vehicular safety with the closure of Janell Crescent and the provision of new vehicular access arrangements from Shirley Street and the establishment of a network of cycle/pedestrian access tracks throughout the open space network.

24. Part 3.5 Open Space provides for a “green spine” to be created through the undergrounding of electricity lines and part of this spine is located to the rear of the site.

25. An Illustrative Masterplan is described in clause 3.8 and that plan forms Figure 7 which is repeated below.

26. A potential site amalgamation plan is included as Figure 8 and shows the site being part of one potential redevelopment site along with the two battleaxe lots to the north and three lots to the south, a total of 6 lots. According to the evidence the area of the amalgamated site would be 4480sqm.

27. Precinct wide built form controls are provided in clause 4 of the DCP and those relevant to the application include a 9 storey building height to reflect the 27m height control that applies to the site; 35% maximum site coverage; minimum site area for development sites consistent with the amalgamation plan; deep soil zones of 25% of unbuilt upon area or 15% of total site area, whichever is the greater; 10m setback to Pennant Hills Road; 8m minimum rear boundary setback; side setbacks to be a minimum of 4.5m to walls and 6m to windows from ground floor to fourth storey and 6m for walls and windows above the fourth storey (where setbacks are limited by lot size and adjacent buildings, internal courtyards that limit the length of walls facing boundaries may be proposed); building separation for buildings from 5 to 8 storeys is 18m between habitable rooms/balconies, 12m between habitable rooms/balconies and non-habitable rooms and 9m between habitable rooms; building depth generally 18m, building length generally up to 50m.

28. Whilst there are no overhead transmission lines on the site, those line adjoin the site to the immediate north. Clause 4.38 requires that the existing overhead high voltage power lines on a development site must be undergrounded with a new easement for undergrounded electrical works satisfying the relevant authority provided.

29. The Key Sites controls are contained in Clause 5 and of relevance to the land that adjoins the site, the provisions of clause 5.4 – Block 17: Janell Crescent. Conceptual Built Form Controls for that site are included in Figure 17 and, whilst not applying to the site or the amalgamated lots, show a building footprint that partially extends across the site. This footprint is consistent with that shown on the Illustrative Masterplan referred to at [25]. Figure 17 also shows the battleaxe lots that adjoin the site as the “Landscape plaza/courtyard as a main consolidated open space for the development” however, it would appear that the keynote is an error and that should apply to the circular area at the centre of the site. The council were unable to confirm whether this was the case however, that would be consistent with the land zoning map.

30. Clause 102 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) also applies due to the location of the site on a classified road. The Statement of Environmental Effects lodged with the application references an acoustic assessment undertaken to support the application which concludes that subject to the provision of the sound insulation performance recommendations and the statutory BCA requirements, the development would satisfy all statutory requirements in relation to acoustical amenity and design.

The “Rainbowforce” Development Consent for the Key Site

31. A deferred commencement consent has been granted which would, on satisfaction of the matters the subject of the deferred commencement provisions, provide for the construction of five apartment buildings on the Janell Crescent Key Site 17. The development was determined by the Joint Regional Planning Panel on 29 March 2012. The development would contain a total of 450 units with parking for 662 cars and comprise buildings from 9 to 11 storeys.

32. The application was determined under the provisions of a former planning instrument, Baulkham Hills Local Environmental Plan 2005 which applied to the key site and the subject site at the time the application was determined.

33. The buildings approved are located generally in accordance with the Conceptual Built Form Controls however the footprints vary. Objections to the development standard for building height were upheld with the variations ranging from 0.5m (Building E in part) to 6m (part Block D). The approved FSR was 2.26:1 which complied with the 2.3:1 permitted.

34. Three buildings front Pennant Hills Road, two to the south of the site and one to the north. Those to the south are Blocks A and B, both 9 storey buildings with an 18m separation between buildings. Block B would be located 6m from the boundary with the southernmost “amalgamated lot”, consistent with Figure 18.

35. The area of open space zoned land appears to abut the buildings however the approved plans include additional areas of open space in a different configuration to that shown in the illustrative masterplan

36. The deferred commencement provisions require the creation of drainage easements over downstream properties. In the event that these easements are created, condition 2 requires submission of evidence to the council that a Design Contract with Energy Australia has been executed for the undergrounding of the existing 132kV Double Circuit Powerlines along what has been described as Route Option 1. That route used Post Office Street and Jenkins Road and has an approximate length of 950m.

37. The effect of using that route would be to divert the lines along public roads and remove them from the Key Site, the two battleaxe lots that adjoin the subject site and adjoining areas of open space and reconnect the line on the western side of Jenkins Road. Details of the route are included in Exhibit M and at the time the cost estimates were prepared, the total cost of work was just under $16m.

The evidence

38. A site view was undertaken prior to the conciliation conference. No objectors were present at that time nor did any objector provide evidence during the hearing. The council had received two submissions in response to the original notification of the application. They are included in the council’s Bundle of Documents, Exhibit 2, one from the owner of one of the adjoining battleaxe lots and an anonymous submission. The issues raised are the height, bulk and scale of the building not being in character with the single storey dwelling houses, overlooking and overshadowing, traffic congestion and parking problems, both during construction and when completed, failure to comply with the amalgamation requirements of the DCP, safety concerns, use of right-of-way for access will not be provided, development not setback 12m from electricity easement as required under the DCP.

39. Mr A Nazarov, a real estate agent, was cross examined in relation to his affidavit, read on 8 December 2014 (Exhibit J). He had sold the property to its present owner and been asked on his behalf to sell the property to the owners of the Rainbowforce land which also own the three lots to the south of the site. The affidavit includes a series of emails sent by Mr Nazarov to the solicitor acting on behalf of Rainbowforce, initially in late 2012 and more recently in August 2014. Mr Nazarov says that the company were not prepared to make an offer on the site. He had not obtained a valuation for the site nor advised a potential purchase price.

38. Mr Nazarov was not familiar with the planning controls that apply to the site. He had not considered the owners of the battleaxe lots would be interested in purchasing the site due to the location of the powerlines. He had not considered options of joint ventures or packaging the 6 sites for on selling to a developer.

39. Expert town planning evidence was heard from Mr B Goldsmith for the applicant and Mr S Harding for the council. They agree that the implementation of the DCP in this precinct will result in tall, large buildings in landscape settings with building setbacks in accordance with DCP and State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) requirements.

40. They disagree as to the consequence of the proposed design on the character of the locality.

41. Mr Harding says that development of the site along the lines proposed will result in a building that is at odds with the desired future character of the precinct. One of the key aspects that will alter this character is the building to building relationship considerations of the site. Achieving compliance requirements of this control would require a significant redesign. In its current form, the proposed blank walls required to achieve privacy will be uncharacteristic of other development in the precinct. He says the proposed development would fragment the development site as intended in the DCP, potentially affecting the development outcomes of the remaining five lots which may result in altering the character of the immediate locality, with the net effect of not being consistent with the intent of the Carlingford Precinct DCP.

42. The experts agree that the planning controls seek to achieve a minimum area of 4000sqm (for residential flat buildings) and are aimed at ensuring the proposed height and FSR outcomes are appropriate for the size of land upon which they are situated. In this instance, with tall buildings in a landscaped setting, the planning controls seek an appropriate balance between landscaping, setbacks and built form.

43. Mr Harding says that the application seeks to achieve floor space and height outcomes on a singular parcel of land that is at odds with those objectives. The objectives require site amalgamation and minimum allotment size requirements are compromised by the application. Mr Goldsmith says the degree of compromise is not significant and that compliance with the amalgamation pattern is in the control of others, not the applicant and considers the DCP amalgamation proposal to be ‘flawed’ due to the lack of development potential shown for the subject site and Nos 271-273 Pennant Hills Road, the battleaxe lots.

44. Mr Goldsmith says, based on the evidence of Mr Nazarov, the intended site amalgamations cannot be achieved. He says the proposal is a well-considered alternative that fulfils in the best possible way the council’s planning intentions for orderly and economic development within the precinct. The zero southern boundary setback and façade have been well designed to provide visual interest and allow Rainbowforce to share the setback with its development. The proposed built form will offer aesthetic and amenity benefits to Rainbowforce when it develops the adjoining three lots, allowing a form of development on adjoining land which is very similar to what is intended and would not be out of character with the desired future built forms for the precinct. He had prepared a series of diagrams, (Diagrams 5-8 in Exhibit B) which he says show that a lower scale group of buildings in this part of the “South Precinct” could have beneficial amenity impacts for the locality and the remainder of the Rainbowforce development.

45. They also agree that support for this application is dependent upon accepting that a zero southern boundary setback is satisfactory and that there will be expanses of the proposed building façade on a zero setback that may or may not be joined in the future by a proposal on the adjoining allotment. This is contrary to the DCP that requires side setbacks to be a minimum of 4.5m to walls and 6m from ground floor to the fourth storey and 6m to walls and windows for the fourth storey.

46. The plans referred to in [46] adopt a similar but smaller footprint to that of a typical unit block fronting Pennant Hills Road in the approved Rainbowforce development with the addition of the proposed development and is sited across four of the six lots that are to be amalgamated according to the DCP. The resultant building would be a L-shaped building rather than the rectangular shaped building depicted on the Illustrative Plan. The plan provided for no development of the battleaxe lots, consistent with the DCP. Mr Goldsmith notes that the proposed end walls are not ‘blank’, they have articulation due to a light well feature and windows which will be “built to” if the adjoining development proceeds as envisaged in the application and considers that the treatment of the ‘end walls’ is more a matter of aesthetics and design than a planning matter. He considers it has been designed to look good.

47. Mr Goldsmith says a lesser scaled development on the adjoining sites is not of itself a poorer planning outcome. The block modelling which forms part of the application documentation assists to gain a feel for the very bulky built form proposed for this locality. Some visual relief from reduction in bulk could be a good planning and urban design outcome however, the applicant contends that the proposal does not reduce the adjoining landowner’s development potential. He did not consider that it was an option to amalgamate the site with the two battleaxe allotments due to the presence of the high voltage power lines that cross those properties. He conceded during the hearing that because the Rainbowforce consent requires the undergrounding and relocation of that line once that work is done it may be possible to amalgamate the sites. However he considered there would be no value in doing this due to the lack of development potential for those sites which are nominated on the Illustrative Plan as being an area of open space.

48. Mr Goldsmith says that Rainbowforce or another developer may acquire the battleaxe lots and enter into a Voluntary Planning Agreement with the council that would propose the development on those sites as open space in exchange for additional floorspace and/or building height on other parts of the key site or the amalgamated site. He considered this would provide a material public benefit, acknowledging that the outcome would split the amalgamated lots into two or three parcels but saying the built form intent would be achieved.

49. During the hearing, the experts considered the development yield of the hypothetical design referred to by Mr Goldsmith at [46] and prepared an agreed statement of facts, Exhibit 7. They agree that the amalgamated site has an area of 4230sqm and that based on the Rainbowforce consent, the typical gross floor area (GFA) approved floorplate is 750sqm. If applied to the whole amalgamation 570sqm would sit across the three properties owned by Rainbowforce (Nos 263-267 Pennant Hills Road) and 180sqm across the site. The Court notes that only 60sqm of the 180sqm is consistent with the Illustrative Plan, the additional 120sqm extending further to the north than provided for in the DCP. In addition, the proposal extends further to the west than provided.

50. The experts agree that the plans discussed would allow a GFA for Nos 263-267 of approximately 2.3:1 for a 9 storey building based on a 570sqm GFA plate and that a 750sqm floorplate across the “amalgamated site” results in a FSR of 1.6:1 for a 9 storey building. To achieve the 2.3:1 FSR over the six sites the floorplate would need to be increased to a GFA of 1,081sqm or the building height increased. That height would be at least 13 storeys across the 750sqm floorplate.

51. Further plans, Exhibit N, were prepared that considered other scenarios. The first included the L-shaped building described at [48] across the three Rainbowforce lots with the proposed building abutting the 570sqm floorplate resulting in a FSR of 2.35:1 and a second building with a floorplate of 400sqm across the two battleaxe lots. That building, at 9 storeys would have a FSR of approximately 2.33:1. Building separations of approximately 12m would be accommodated. The plans included details of the approved Rainbowforce building to the south of the site replicated across the amalgamated site to support Mr Goldsmith’s conclusions on floor area and FSR.

52. Whilst Mr Harding accepted the floor area calculations, he considered the indicative design for the building on the battleaxe allotments was unsatisfactory as it had an east/west orientation and didn’t deal with the interface of the adjoining buildings, nor maximise surveillance of open space areas and for that reason he did not consider the layout to be the optimum result if a building was to be introduced to that location. He says that a wider area of open space adjoining the building would be required and the structure goes too far back and it would be more appropriate for a regular shaped building to be constructed as delineated in the Exhibit 7 plan that provided a building footprint of 28m x 20m across the two battleaxe lots and part of the site with a 12m separation to a 40m long building on the three Rainbowforce lots. Such building would achieve a 2.3:1 FSR. Mr Goldsmith says that either option would result in a smaller building from those approved or anticipated by the DCP and whilst it would be different it would have certain features that are similar.

53. The experts agree that the DCP requires the minimum dimensions within a development for internal courtyards and between adjoining sites for buildings between five and eight storeys to be:

• 18m between habitable rooms/balconies;

• 12m between habitable rooms/balconies and non-habitable rooms; and

• 9m between non-habitable rooms.

56. Mr Harding says that in order not to sterilise or diminish the outcomes of the adjoining land, more significant consideration has to be given to setbacks on the common boundary to protect ventilation, privacy and solar access in a manner that affords the neighbouring property the same flexibility in development outcomes that are being sought by the applicant for the site, including boundary fencing. He notes that the southern elevation depicts a number of windows facing the southern boundary and future protection of light and amenity to these openings further dictates the form of building on the adjoining site.

57. Mr Goldsmith says consideration must be given to the fact the proposal is for a ‘boarding house’ and not a residential flat building. The concept plans already prepared for the adjoining sites are adequate to demonstrate that future development on these sites will not be compromised. There is no need for further or more significant consideration of how “good” planning and design outcomes can be achieved as the proposal still allows for the adjoining development to have north facing units with multiple orientations even though the owners have only purchased the three properties. He says to develop the adjoining site, the council must allow a building to abut the site. It is his opinion that the adjoining owner does not want to purchase the site because the council’s amalgamation plan and built form concepts do not provide sufficient development potential to do so.

58. Mr Harding acknowledges that there would be a lesser outcome on this site if it is developed as a stand-alone site in order to provide desirable setback and this in turn reduces the outcomes for the adjoining land parcels. The DCP indicates that the higher density outcomes are only achievable where sites have been amalgamated to achieve the size required to accommodate those outcomes. He says that the nil setback to the southern boundary and a three metre setback to the northern boundary would compel the future development of the sites to the south to design developments that achieve compliance with the building separation requirements. This results in the site reducing outcomes of the adjoining land in order to achieve appropriate building to building separation and the outcomes such as ventilation and privacy that are delivered by that separation.

59. The experts agree that the DCP plans propose tall buildings in a landscaped setting. Mr Goldsmith says the development does provide landscaping that is in proportion to its FSR and would borrow its setting from its neighbours, consistent with the DCP that nominates the site to the north as open space. Mr Harding says there is a mismatch between open space and the proposed development would constrain the development potential of the adjoining sites, the landscape setting, solar access and the rhythm of buildings and the separation between them.

60. In relation to the provisions of clause 4.1A(3) of the LEP, Mr Harding says the proposed development does not satisfy those provisions. That is because the building has been designed in an east/west orientation, it doesn’t deal with the interface with adjoining buildings, does not maximise surveillance of open space and the design of the rooms and balconies intrudes into the rear yard area of the site and therefore does not achieve the optimum result.

61. In defining the local area against which the character of the development must be considered, the experts agree that it covers the area opposite the site fronting Pennant Hills Road and that land included in the Southern Precinct as defined in the DCP. Mr Goldsmith says the development is compatible with the desired future character (DFC) of that local area.

62. Mr Harding disagrees and says the proposed development would result in fragmenting the intended development site (amalgamated site) and potentially affect the development outcomes of the remaining five lots. This may result in altering the character of the immediate locality, with the net effect of it not being consistent with the intent of the Carlingford Precinct DCP. The development would also result in limiting the scope of development for the surrounding six lots and would compel any developer to design a development that is compatible with the proposed boarding house in terms of architectural style and integration with the boarding house. This approach also assumes that the remaining five lots would be developed as a single entity. If the application was approved, he says there would be no longer any compulsion to develop the other allotments as a single building irrespective of whether or not parcels are owned by one entity.

63. Mr Harding says a further complication in achieving the desirable character is the form of the building, the contentions on site requirements, setback and building treatment highlighting the difficulty in achieving the desired character. If the building was not consolidated, it would not be consistent with the DFC as it would be a tall, thin, 5 storey building and therefore departs from the 9 storey character along Pennant Hills Road. Even if the suggested plans prepared by Mr Goldsmith to abut a building to the south of the site were achieved, Mr Harding says that it would not be compatible due to the intrusion of the building into the rear open space area with that incursion not achieving the landscaped setting. Leaving a 3m setback to the northern boundary also minimises the opportunity to achieve that landscape setting.

64. Mr Goldsmith agrees that the narrow building along the Pennant Hills Road frontage would be different and says there is a need for a gap and it makes sense that the gap is in that area nominated in the DCP as open space.

Findings

65. There is no dispute between the parties that the development satisfies all of the relevant numerical controls contained in SEPPARH. There is no agreement as to whether the design of the development is compatible with the character of the local area, a matter which I must consider when determining the application pursuant to clause 30A of that policy, although not necessarily a determinative matter.

66. SEPPARH is the primary instrument for assessment of the application in the event of any inconsistency with the LEP, (see clause 8 of SEPPARH and s36 of the (EP&AAct).

67. In accordance with the provisions of s79C of the EP&AAct, the relevant matters for consideration are the provisions of SEPPARH; the LEP where those provisions are not inconsistent with SEPPARH and the DCP. Other matters are the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; the suitability of the site for the development; any submissions made in accordance with this Act or the regulations and the public interest.

68. SEPP65 and SEPP Infrastructure are also relevant considerations as the development, whilst a boarding house, would also be considered to be a residential flat building (see The Hills Shire Council v Sales Search Pty Ltd [2013] NSWLEC 103) because all of the boarding rooms are capable of use as a separate domicile due to the presence of kitchens and bathrooms.

69. In considering whether the development is compatible with the character of the area, there is no dispute that a building of the form proposed would not be compatible with the current character. The DFC envisaged under the LEP and the DCP guides consideration as to whether the design of the development would be compatible with that character.

70. Firstly, the LEP requires a minimum lot size of 4000sqm for residential flat development and, at 765.1sqm, the site fails to satisfy that criteria however, in accordance with the provisions of clause 4.1A consent may be granted for development on a smaller lot provided the council is satisfied of those matters listed in subclause 3 [see 15]. Further, the provisions of SEPPARH provide for consent to be granted on any land provided there is compliance with the relevant parts of the policy and consideration is made as to whether the design of the development is compatible with the character of the local area.

71. Clause 4.1A is not a prohibition, it is a development standard and is able to be varied provided satisfaction of certain matters is reached. Those matters are that the form of the proposed structures is compatible with adjoining structures in terms of their elevation to the street and building height; the design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable acoustic and visual privacy; the dwellings are designed to minimise energy needs and utilise passive solar design principles, and significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas.

72. The matters to be considered under s30A of SEPPARH are not, in effect, different to those to be considered under clause 4.1A as the latter inform the DFC as well as consider amenity impacts. The DCP provides further details as to the DFC.

73. That character envisages landmark buildings on large lots, creating a street oriented village built for with open spaces and a civic plaza linked to the station. The adjoining key site provides one of those open space links. Building placement is to provide transition in building scale, natural ventilation, solar access, outlook from apartments and year round sunlight to communal open spaces. Streetscapes are to be resident and visitor friendly in an urban landscaped setting that promotes a safe pedestrian and vehicular environment with the landscaping working in the public realm to define the character areas.

74. In this regard, I prefer the evidence of Mr Harding. The proposed building is at odds with the DFC. It intrudes into the open space link, it would predicate the development of the adjoining allotments to a particular form, that form being inconsistent with the DCP and DFC and would, until such time as any future development is constructed adjacent to it, present a façade to the south that, whilst it contains some form of articulation and fenestration, does not provide natural ventilation, solar access or outlook. In the longer term it would overshadow the open space and parts of any building that would be constructed to tis south. At five storeys, it is a lower building than anticipated, does not follow the regular building footprint and rhythm envisaged along Pennant Hills Road nor does it address the publically accessible open space through the keysite but rather fences itself off from that space. The proposed setbacks are inconsistent with those required in the DCP and SEPP65. For those reasons it is not compatible with the character of the local area.

65. It is clear from the evidence that the development of the amalgamated site as provided for in the DCP would not achieve the maximum height and FSR development standards and that there is little incentive for any development to incorporate the battleaxe lots. It is not for the Court to consider how the DCP should address these issues. The DCP is a recent planning document and, whilst the Rainbowforce consent has seen variations to the building footprint, height and FSR controls, it has not been abandoned.

66. The DCP must remain the focal point in determining the matter, not an alternate proposal that varies to the extent to that proposed by the applicant. Whilst there are occasions when it is appropriate to vary the provisions contained within the DCP, and the DCP is not determinative, see Zhang v Canterbury City Council [2001] NSWCA 167, in this case, I consider that the development would be inconsistent with the DFC anticipated in that document and would not be compatible with the character of the locality. For those reasons the development should not be approved. It is not for the Court to adopt a different approach to that envisaged in the council’s planning documents, that is a matter for the council.

67. In assessing the likely impacts of the development, I consider that the development would have adverse impacts on the natural and built environment because it is not consistent with the DFC for the area, would constrain the development of that land and prejudice the economic and orderly development of that land, contrary to the objectives of the EP&AAct.

68. In relation to the actions of the applicant in attempting to amalgamate the sites, I do not consider Mr Nazarov’s attempts have been consistent with the accepted practice of this Court, see Cornerstone Property Group Pty Ltd v Warringah Council[2004] NSWLEC 189; Karavellas v Sutherland Shire Council [2004] NSWLEC 251 and Thiessen Architects v Sutherland Shire Council [2004] NSWLEC 480. However, I do accept that at this time it is not possible to amalgamate the site with the battleaxe lots due to the presence of the high voltage power lines and that there would be no reason for the owners of the Rainbowforce land to acquire additional land until redevelopment of the existing holding has commenced. Whilst no attempts have been made to acquire those lots or package the site with the adjoining sites, that alone is not a reason to refuse consent in this case.

Conclusion

79. Having concluded that the development is not compatible with the character of the local area, is inconsistent with the council’s planning controls, would adversely impact adjoining land and prejudice the delivery of the outcomes anticipated through those planning controls, the application must be refused.

80. It is a matter for the council whether it reviews its DCP to ensure the density of development envisaged by the LEP controls is achieved in the precinct.

81. The Orders of the Court are:

1. The appeal is dismissed.

2. Development application No 838/2014/HB to construct a five storey, 25 room boarding house with basement carpark for 11 vehicles, at 269 Pennant Hills Road, Carlingford is refused consent.

3. The exhibits, other than exhibits D, E, F, G, H and 1, are returned.

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Sue Morris

Commissioner of the Court

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Decision last updated: 23 January 2015