Pemell Newtown Holdings v Inner West Council

[2018] NSWLEC 1254

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pemell Newtown Holdings v Inner West Council [2018] NSWLEC 1254
Hearing dates:	26, 27 April 2018
Date of orders:	29 May 2018
Decision date:	29 May 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No DA201600658 for a boarding house at 318 Edgeware Road, Newtown is refused. (3) The applicant is to pay the respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (4) The exhibits are returned with the exception of Exhibit 1 and B.
Catchwords:	DEVELOPMENT APPLICATION: boarding house, floor space bonus, compatibility
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy – Affordable Rental Housing 2009 Marrickville Local Environmental Plan 2011
Cases Cited:	Hastings Point Progress Association Inc v Tweed Shire. Council [2009] NSWCA 285 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Marina Bay Developments Pty Ltd v Pittwater Council [2006] NSWLEC 577
Category:	Principal judgment
Parties:	Pemell Newtown Holdings Pty Ltd (First Applicant) The Chocolate Trust (Second Applicant) Pemel Lane Holdings Pty Ltd (Third Applicant) Inner West Council (Respondent)
Representation:	Counsel: S Nash (Applicants)   Solicitors: Project Lawyers Pty Ltd (Applicants) S Turner & M Bonanno, Inner West Council (Respondent)
File Number(s):	2017/204695
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Inner West Council (Council) of Development Application No DA201600658 for a boarding house at 318 Edgeware Road, Newtown (the site).

The proposal

2. The Application seeks consent for demolition of the existing single storey dwelling house and, under the provision of State Environmental Planning Policy – Affordable Rental Housing 2009 (SEPP – ARH) construction of a 3 storey boarding house.

3. At the hearing leave was sought to rely on amended plans which pick up changes in details as developed in the expert planners’ joint conference. Leave was granted and the application before the Court comprises: 16 rooms accommodating 19 tenants, a communal room and open space, three parking spaces including an accessible space, three motor cycle and nine bicycle spaces and landscape works (modified in the course of the hearing).

Contentions

4. After certain matters were resolved through the work of joint experts (and leave granted by the Court to rely on amended plans), the Council’s view on why the application should be refused can be summarised as follows: a breach of the development standards relating to floor space ratio (FSR); development out of character and incompatible with the local area and unsuitable for the R2 Low Density zone due to adverse impacts, inadequate parking, inadequate room sizes. In addition, Council believes if approved there is a need for a covenant on the property to ensure rooms are let to persons requiring the assistance of the SEPP- ARH.

The site and setting

5. The site is legally described as Lot 2 in DP 223475 and is occupied by a single storey dwelling with driveway access to a hardstand parking area. The site has a frontage of 13.896 metres to Edgeware Road, a depth of 35.89 metres on the southern boundary and 40.323m on the northern boundary, and a total site area of 569.1m². There is extensive vegetation on the site, particularly in the rear. The site falls from the rear towards Edgeware Road.

6. The site is on the eastern side of Edgeware Road, between Wells Street and Darley Street. The northern boundary adjoins a two storey residential flat building. The southern boundary adjoins a single storey dwelling house. The rear boundary adjoins the backyard zone on 177 Darley Street Newtown, and what seems from the cadastral mapping to be part of the parcel which accommodates the flats to the north. Generally there is lower density although still compact housing to the east of the site.

7. Edgeware Road is a major thoroughfare, linking to an overhead railway crossing. While the area is mostly residential, industrial development and institutional uses (in particular St Pius church and school) are located across Edgeware Road and further to the west of the site. The site is well serviced being close to Marrickville Metro shopping precinct and less than a 10 minute walk to St Peters railway station. Buses run from Marrickville Metro past the site.

The site inspection

8. The hearing commenced with a site inspection. It was possible to view the front or western parts of the site from the street, the Court was unable to access onto the site itself and was unable to see from the rear. An appreciation of the context was gained from walking along Edgeware Road (both sides), as well as Darley and Wells St. There was a view line into the site from Wells St.

Lay submissions

9. A list of objectors was provided as Exhibit 5, indicating that there were 21 submissions received after notification of the DA (with issues of concern including: development out of keeping with the local area, social impacts, may not provide for affordable housing, overdevelopment, excessive height and FSR, overshadowing, visual privacy, noise, parking, traffic, heritage impact, loss of property values and tree removal without adequate replacement).

Relevant planning controls

State Environmental Planning Policy – Affordable Rental Housing 2009

10. Key provisions from SEPP – ARH are summarised below:

• Clause 26 establishes that the SEPP’s provisions relating to boarding houses (ie Division 3) do apply to the site due to its zoning.

• Clause 27 requires relevant land to be located “within an accessible area” - it is not disputed that this site is located within an accessible area.

• Clause 29(1) establishes minimum FSR standards and provides that development must not be refused on the grounds of density or scale if the development does not exceed that standard – it is a matter of dispute what the relevant standard is in this case.

• Clause 29(2) provides a further set of “must not refuse” standards involving: height, landscaped area, solar access, private open space, parking and accommodation size – some of these are in dispute in this case.

• Clause 30 provides a list of other standards for boarding houses – the only matter in contention is in regard to motorcycle parking levels.

Marrickville Local Environmental Plan 2011

11. The site falls within Zone R2 – Low Density Residential in Marrickville Local Environmental Plan 2011 (the LEP). Boarding houses are nominated as permissible in the zone. There is a requirement for consent authorities to have regard to zone objectives in the determination of development applications (DAs). The site is not a heritage item and is not within a conservation area.

12. LEP controls of relevance to the assessment of the proposal include: cl 4.3(2) which relates to height - a maximum height of 8.5m applies to the site, with which the proposal complies; cl 4.4(2) of the LEP relates to FSR - there is a maximum FSR of 0.55:1 but SEPP - ARH introduces additional FSR provisions (discussed below).

13. There are also a series of planning provisions in Marrickville Development Control Plan 2011 (DCP), those of particular pertinence in this matter are discussed below.

Floor space ratio considerations

What is the applicable floor space ratio standard?

14. SEPP - ARH (cl 29) provides as follows:

(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

…

(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

…

15. If cl 29(1)(c) of the SEPP were to be triggered, consent could not be refused on “density or scale” grounds if the FSR was not more than 1.1:1 (0.6:1 plus the 0.5:1 bonus). Given the agreed position that, in this instance, heritage issues do not offer any cause to disallow it, the only question which is relevant to whether cl 29(1) is triggered is “(whether) the development is on land within a zone in which residential flat buildings are permitted”.

16. The evidence provided differing views on the answer to this question. A standard interpretation of the land use tables would have residential flat buildings as a permissible use in the (subject) R2 zone. However, cl 6.9 of the LEP places constraints on the permissibility of residential flat buildings as follows (relevantly):

6.9 Converting industrial or warehouse buildings to multi dwelling housing, office premises or residential flat buildings in residential zones

(1) The objective of this clause is to permit multi dwelling housing, office premises and residential flat buildings in residential zones where they are part of an adaptive reuse of existing industrial buildings or warehouse buildings.

(2) This clause applies to land in the following zones:

…

(b) Zone R2 Low Density Residential,

…

(3A) Development consent must not be granted to development on land in Zone R2 Low Density Residential … for the following purposes unless the development relates to a building that was designed and constructed for an industrial or warehouse purpose, and was erected before the commencement of this Plan:

…

(b) if the building is on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential—a residential flat building.

17. The site is occupied by a residential building with no suggestion that there is an industrial building or warehouse building existing on the site. Council’s stated position, uncontested as I understand it, is that residential flat buildings are not permissible on the site.

18. Mr Turner explained the background to cl 6.9 of the LEP. It was indicated that Council’s planning intent was to ensure that intended conversions of existing older and larger buildings dispersed here and there throughout the inner west (ie factories and warehouses which have reached their use-by date) were not unreasonably constrained for redevelopment as flats by impractical FSR controls. Council’s argues it is clear that RFBs are only permissible in the R2 zone in very limited and specific instances (ie sites occupied by existing factories and warehouses). The submission is that the planning system should be capable of acknowledging the intention of the planning authority, as it was clear that RFBs were generally not permissible in the R2 zone.

19. Mr Nash argued that the permissibility of RFBs was “binary”: there is a yes/no answer. As the use was permissible under the land use tables there was no need to go to cl 6.9 of the LEP.

20. A plain reading of the LEP would suggest it is Part 2 of this instrument, titled “Prohibited and permitted development” which establishes land use permissibility within zones. Within Part 2, it is cl 2.3 of the LEP which introduces the zone objectives and land use tables as follows:

2.3 Zone objectives and Land Use Table

(1) The Land Use Table at the end of this Part specifies for each zone:

(a) the objectives for development, and

(b) development that may be carried out without development consent, and

(c) development that may be carried out only with development consent, and

(d) development that is prohibited.

…

(4) This clause is subject to the other provisions of this Plan.

21. Under cl 2.3(1) and the associated land use tables, residential flat buildings are permissible in the R2 zone. Clause 2.3(4) opens the opportunity for further provisions, which may mean that there is potential for the question of “permissibility within a zone” to be other than “binary” to use Mr Nash’s term. However, when we turn to cl 6.9 of the LEP, it does not raise any contradictions to permissibility questions across a zone. Rather it is provisioning for different pre-existing development scenarios for sites within a zone. On this matter of residential flat building permissibility, as a legal instrument, SEPP - ARH is asking its questions at the level of the zone. It raises no questions in regard to the particulars of land within the zone. There seems to have been the possibility for that interest to have been taken up. That is for the SEPP to only provide the bonus FSR on land where RFBs were permissible. There also may have been some opportunities under cl 2.3(4) of the LEP. Neither have occurred.

22. In coming to a conclusion, I would mention that in the hearing I asked the legal representatives whether cl 8 of the SEPP (relating to relationships between planning instruments) had any work to do in regard to this seeming anomaly between what might be seen as a planning intent to more generally restrict residential flat buildings in the R2 zone (despite the explicit “permissibility”) and the SEPP’s provisions to rely on zone-level permissibility as a means of assigning permissible floor space. Mr Bonanno referred me to Hastings Point Progress Association Inc v Tweed Shire. Council [2009] NSWCA 285. In my limited interpretation, this case seemed to turn on a setting where provisions in two separate environmental planning instruments were incapable of concurrent operation. I do not see a similar situation at hand here.

23. A plain reading of the LEP and SEPP, as summarised above, suggests to me that the bonus FSR does apply to the land, and as such the applicable FSR for the site is 1.1:1. In turn, provided the development is within this FSR, there is no power to refuse the application on the grounds of density or scale.

24. There was a disagreement on the actual gross floor area for the proposed development. However, even the higher GFA level, as calculated by Mr Chapman, would bring an FSR of 0.79:1, well within the control, there is no need for me to adjudicate on this question. That is to say that the development stands as it is for relevant merits assessment, and whether certain elements are included in a GFA calculation or otherwise is irrelevant to that assessment.

Objectives of the R2 Low Density zone

25. Both the planning experts were more concerned with the local character compatibility questions (see below) than the particulars of the zone objectives. The Court needs to consider them nonetheless. The zone objectives are:

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 multi dwelling housing and residential flat buildings but only as part of the conversion of existing industrial and warehouse buildings.

To provide for office premises but only as part of the conversion of existing industrial and warehouse buildings or in existing buildings designed and constructed for commercial purposes.

To provide for retail premises in existing buildings designed and constructed for commercial purposes.

26. The first zone objective has particular pertinence. Mr Barwick (planning expert for the applicant) believes the development has “no conflict” with the first objective, largely on the basis of his comparisons with various other LEP and DCP controls (which I refer to below). What I observe is that the proposal has a partial compliance with the first objective (addressing housing needs) but the proposal is introducing further higher density development, and thus propagating something other than a low density residential environment for the R2 zone. However, as evidenced by Mr Barwick, boarding houses are a direct permissible use in the zone. The zone objectives are not determinative in this matter.

Considering evidence on local area character compatibility and likely local impacts

27. While SEPP – ARH, and the application’s response to it, removes the need for assessment of certain issues, a question in regard to character compatibility does remain in the SEPP at cl 30A as follows:

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.

28. In this section I consider the evidence on character compatibility. Mindful of s 4.15(1) of the Environmental Planning and Assessment (EPA) Act, there is a sense to join up related considerations in the LEP and Council’s DCP, and more generally the question of likely local impacts. While statutory points of difference are noted, the questions which arise when considering character compatibility and impacts have points of commonality, and where relevant are considered together below to reduce duplication.

29. Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 was referenced by both sides here. In this case (and in a planning principle adopted by the Court), compatibility, in an urban design context, is seen to mean “capable of existing together in harmony” [24]. It was noted by Mr Nash that something can be compatible with something else without being consistent with it (citing: Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095). Mr Turner pointed out that Project Venture [23] also noted that compatibility between proposed and existing is not always desirable.

What is the character of the local area

30. Mr Chapman believes the local area, for definition here, is defined by Wells Street, Edgeware Road (eastern side) and Darley Street. He refers to this as “a low density residential area predominantly characterised by 1 – 2 storey dwelling houses and semi-detached dwellings”. He observes that 310 Edgeware Road (next door to the north) is a two storey residential flat building. He also notes the three storey flats at the corner of Edgeware Road and Wells Street, but notes it “is not the predominant built form or scale of development within the visual catchment of the subject site” (Exhibit 2).

31. Mr Barwick describes the area as “low to medium density residential character”. He relies on the two storey flats adjacent and the three storey flats at the corner. Mr Barwick was also of the view that the industrial development across Edgeware Road to the west and nearby church-related uses also needed to be considered when assessing local character compatibility.

32. My own view is that to suggest the character of the local area relevant to this assessment as low density residential is not adequate, albeit noting the area is zoned R2 Low Density Residential. I believe that, in part as a consequence of its frontage to Edgeware Road (a quite busy thoroughfare which, in the immediate site vicinity, also acts as a boundary to the industrial uses to the west); and in part evidenced by the flats next door and at the corner, the local area of interest here is somewhat more varied. I do agree with Mr Chapman that the area presents as mostly single storey and sometimes two storeys but the rest of the activity in the local setting warrants due recognition. This differentiates the “local area”, relevant to this application, from say the setting in Wells and Darley Streets, which would have a different “local area character compatibility” test.

Testing compatibility

Landscape

33. It is useful to initially consider the contributory, or otherwise, aspects of site landscaping. Expert arboricultural advice was provided by Ms C McKenzie for the applicant and Mr I McKenzie for Council. It was agreed that the proposal was seeking to remove 10 “prescribed” but “low to moderate retention value” trees. The original agreed position by the experts was that proposed site landscaping considered at the experts’ conference would not compensate for tree removal. The concerns were with both tree species and adequate planting space and soil volume.

33. A revised landscape schema was devised which ultimately was generally agreed by the experts as having potential to provide adequate and appropriate compensation for the removed trees. The more substantive planting comprises two eucalypts at the rear as canopy trees (with mature heights of 10-25m), one Cook Pine within the northern setback area (15-25m at maturity), two additional mid canopy trees within the northern setback area and two within the front setback (6-10m mature height). Additional screening and decorative planting was also indicated.

34. Although Mr McKenzie noted that the loss of any existing canopy trees in the inner west was to be avoided, there was clear agreement that this proposal provided considerable compensatory treatment. There were two provisos. One was that there be a requirement for a maintenance program (for propagation but also professional pruning), the other was concerned with the soil zone for one of the mid canopy trees between balconies on units G.01 and G.02 near the northern boundary. A reduction in balcony size was required to meet soil zone needs. There was consultation with planners on this and it was agreed that the changes to the balcony dimensions would not bring other adverse consequences.

35. My conclusion in regard to landscaping is that there is already a relatively good treescape evident within Edgeware Road in the wider site environs. The proposal before the Court responds as well as is practical to the opportunities available on site, in terms of: re-instating canopy, providing for privacy and in visually softening of building.

Impacts

37. The planners agree that the development meets height as well as overshadowing and solar access controls. Landscape has been considered above. Building density or scale are not “grounds for refusal”, but the impacts of the built form can be considered (see for example: Marina Bay Developments Pty Ltd v Pittwater Council [2006] NSWLEC 577 at [43]. Visual impact and privacy are pertinent here, with building setbacks a relevant control factor. An issue with waste management also arose.

38. Mr Barwick says the proposal’s front setback is consistent with the adjoining development and conforms with DCP controls in regard to front and rear setbacks, as well as the northern side boundary. He notes that the southern boundary setback is less than the required 2.5m setback for three storey buildings but is greater than the existing southern setback which is “effectively nil”. He indicates the site cover (42.7%) complies with the requirements for a single dwelling house, and the proposal meets the height control of 9.5m. Mr Barwick suggests that at 0.62:1, there is only a minor non-compliance in regard to FSR (Mr Chapman’s FSR interpretation is 0.79:1). Mr Barwick believes that consistency with the various controls infers character compatibility. He is also happy with the building’s front presentation which he likens to a two storey building with some accommodation in roof structure.

39. Mr Chapman argues that based on the site’s location within the R2 – Low Density zone itself, the predominant 1 – 2 storey buildings within the visual catchment, building envelope and other inconsistencies with controls, the proposal is “not compatible with the low density residential character of the immediate area”. Mr Chapman argues that the proposal as a three storey building is not compatible with the desired future character of the Camdenville Precinct (as defined in Part 9 of the DCP). The desired future character for this precinct (Part 9.14.2 of the DCP) includes the following:

To maintain distinctly single storey streetscapes within the precinct.

To preserve the predominantly low to medium density residential character of the precinct.

40. For completeness I would add the following relevant desired future character factors listed at Part 9.14.2 of the DCP:

To ensure that higher density development demonstrates good urban design and environmental sustainability and provides suitable amenity for occupants of those developments.

To ensure that the design of higher density development protects the residential amenity of adjoining and surrounding properties.

41. Apart from the side setback mentioned by Mr Barwick, the objectives or controls within the applicable Part 4.1 of the DCP which are seen by Mr Chapman as non-compliant are as follows:

• DCP Objective O8: To ensure development in streetscapes with a visual cohesiveness and an identifiable uniformity in bulk, scale and height complements that uniformity.

• DCP objective O10: “To ensure development is of a scale and form that enhances the character and quality of streetscapes”, and Control C8:

Notwithstanding compliance with the numerical standards, applicants must demonstrate that the bulk and relative mass of development is acceptable for the street and adjoining dwellings in terms of:

i. Overshadowing and privacy;

ii. Streetscape (bulk and scale);

iii. Building setbacks;

iv. Parking and landscape requirements;

v. Visual impact and impact on existing views (Council encourages view sharing between surrounding residences);

vi. Any significant trees on site; and

vii. Lot size, shape and topography.

I note that the provisions for this point can only be partly relevant mindful of cl 29(1) of the SEPP.

42. The amended (and it might be said) un-notified proposal before the Court locates the open waste management area at southern boundary, shared with a property accommodating a single dwelling (320 Edgeware Road). There was disagreement on the significance of this, but a general view was agreed on the part of the experts that there were possibilities to cover the waste area to reduce potential impacts.

Evidence on other contentions: parking and room sizes

Parking

43. The relevant SEPP standard is at cl 29(2)(e) and relevantly provides that a consent authority must not refuse consent to development on 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

…

44. Parking evidence was given by the following experts: Mr Navin Prasad for the applicant and Mr James Ogg for the Council. The proposal provides three parking spaces including one accessible space. The dispute was around whether the parking requirement under the SEPP could be rounded. Mr Prasad argued it could be and that therefore only 3 parking spaces were required. Council’s view was that the cl 29(2)(e) standard had not been met and thus there was no exemption from a merits assessment of parking. It was agreed that the SEPP was silent on whether parking should be rounded up or down and on the demand for accessible spaces.

45. Mr Prasad notes that the DCP also requires 0.2 spaces per boarding room The DCP indicated rounding to the nearest whole figure which would require 3 spaces. Mr Ogg notes that Part 2.5 of the DCP (concerned with equity of access) requires one accessible space per 10 guests (or boarding rooms) which would equate to 2 accessible spaces in this case.

Accommodation size

46. The relevant SEPP standard is at cl 29(2)(f) and provides that a consent authority must not refuse consent to development on the grounds of 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.

47. The argument is whether the 12m2 standard has been met for single boarding rooms, in particular whether sufficient account was made for exclusion of private kitchen facilities area. Council’s DCP (Part 4.3.3.5) provides that a 1m strip adjacent to the kitchen should be factored in. Drawings tabled at the hearing (exhibit G) indicated that “typical single rooms” were some 17.9m2 reducing to 11.8m2 when the bathroom, kitchen and a 1m strip adjacent to the kitchen were excluded.

48. This 0.2m2 non-compliance is minimal. I am not convinced that it is reasonable to allocate a full 1m strip adjacent to the kitchen as part of the kitchen facilities for the purpose of the SEPP, given the capacity for multiple use of this quite significant area within the boarding rooms. I find that the single boarding rooms meet the “must not refuse” criterion at cl 29(2)(f).

Conclusions

49. Considering the evidence summarised above, I now turn to what I see as the key particulars of concern and draw conclusions having regard to the relevant planning controls.

Front presentation

50. I agree with Mr Barwick and believe the landscaping as proposed, including the provision of the 3.5m wide planting area and proposed species, does a satisfactory job in softening the lower parts of the development, which would otherwise have an unappealing presentation. However, I am concerned with the visual presentation of the upper level of the building. On the basis of the elevations provided, the residential component of the third level would be very apparent, and I am not convinced that the front garden landscaping would adequately screen or filter this presentation.

51. In my view the Mansard roof form as proposed, which would become the dominant visual feature of the building, would be quite alien in this setting (not incompatible of itself). More importantly, it also presents as awkward and discordant, rather than “in harmony”, when set into the context of the baseline architectural references apparent in the street. With its starting point of difference, rather than similarity, as presented the front presentation does not exhibit sufficient architectural qualities to pass a test of local area character compatibility. Clause 30A only requires “consideration” of this question, and as such the proposal need not fail on these grounds alone.

Neighbour impacts

52. While also of relevance to local character compatibility, under s 4.15 of the EPA Act, the assessment also needs to consider DCP provisions and “likely impact” as objective issues. The impacts of relevance here, also raised in the DCP, include: privacy, visual impact and in this case exposure to the boarding house waste management area.

53. In my view locating an open waste room for 19 persons along the boundary with a single dwelling house raises serious questions. It brings unreasonable risks associated with odour, noise and vermin. The proposed change to the plans have not been notified and the Court is unaware what the implications may be for the adjoining property. It is noted that there was an objecting submission from this neighbour. On the basis of the evidence in the hearing it seems likely that there are practical possibilities to enclose this waste area which could be expected to bring a satisfactory outcome, but it would be reasonable to hear from the affected neighbour before a decision was made.

54. The top level of the boarding house does not comply with the DCP’s side setback controls to the same (southern) boundary. I cannot agree with the view that the fact that the existing single storey dwelling has a minimal setback would provide sufficient justification to support non-compliance at the top (ie third level) of this development. Even if the potential for a three level building to be visually overbearing is set aside (cautiously mindful of the provisions of SEPP – ARH cl 29(1)), there are concerns in regard to overlooking and noise and light spill. I note the evidence in the hearing that there could be additional louvres placed in the south-eastern corner of the breezeway to stop overlooking to the east (Exhibit M), and certain night-lighting arrangements. I am also mindful here of Mr Nash’s comments that the Plan of Management would deny the use of the open breezeway after 10pm but cannot see how this would be practically achievable, especially when there is no management on site. There is a concern that the breezeway (and its associated likely significant levels of activity), non-compliant with the side setback control, and without better privacy screening, brings an unfair impact on 320 Edgeware Road; both now and in regard to any plans for future renovations to this dwelling, located as it is in an R2 zone.

Parking

55. The first question is whether any merits assessment of parking is required due to the exemptions provided at cl 29(2)(e) of the SEPP. It is clear from a plain reading of the clause that to gain the benefit of exclusion from a merits assessment, it is necessary for a proposal to meet the indicated parking standard. In this case 0.2 parking spaces are not provided for each boarding room. A level of parking under this threshold is provided. This takes the parking assessment into merits considerations.

56. There is insufficient evidence to counter Council’s expert and the DCP’s provision in regard to accessible parking. Mr Barwick argues that as there are only three accessible rooms (this is one less than required under the DCP – which “rounds up” on this matter – see “part thereof” reference in DCP), it is therefore reasonable to provide one accessible parking space (again one less than required under the DCP). The applicant’s evidence here seems to be justifying one non-compliance (non-compliance in accessible rooms) with another (non-compliance in accessible parking). For me it does not directly follow that acceptance that it is impractical to provide a further accessible room at this site, which I do, means there can be non-compliance with parking aimed at supporting people with disability.

57. Parking is particularly constrained around the site in what is defined in the DCP as Parking Area 1 (DCP Section 2.1) and, with a mind to the DCP’s interest in equity of access and mobility, without further evidence to the contrary, it would be unreasonable to approve the development where accessible parking does not meet the DCP standard. Here I have considered Mr Nash’s comments that the site is at a special “confluence of circumstances” having regard to its public transport and shopping access. The accessibility is good at the site, but it is not so adjacent to major transport as to gain additional parking exemptions (as might a development within the immediate perimeter of a railway station/major bus routes).

Findings

58. Each of the concerns raised above needs to be weighed against the objectives of SEPP – ARH. The SEPP is concerned with social benefit through the delivery of new affordable rental housing. The relevant mechanism here is through provision of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards. I accept Mr Nash’s view that this form of development will inevitably be different to what might be commonplace in a zone.

59. In evaluating the proposal I have had a mind to the SEPP objectives and those of the LEP. I have also given consideration to: s 3.42 of the EPA Act (concerned with the purpose and status of DCP) and s 4.15(3A) of the Act (concerned with the flexible application of DCPs).

60. I also note that when the SEPP objectives are front of mind, individually, the concerns which arise do not necessarily bring a negative result for the application. Some issues can clearly be resolved with better design, or some scaling back of the development. But when the relevant matters are considered together it is clear that this proposal cannot be approved, due to: building presentation (local area incompatibility), unreasonable amenity impact on neighbouring property and inadequate parking.

Orders

61. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No DA201600658 for a boarding house at 318 Edgeware Road, Newtown is refused.

3. The applicant is to pay the respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

4. The exhibits are returned with the exception of Exhibit 1 and B.

____________

P Walsh

Commissioner of the Court

Decision last updated: 29 May 2018