Pingola Pty Ltd v Parramatta City Council

[2012] NSWLEC 1270

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270

Hearing dates:

15 &16 May and 8 June 2012 Conditions filed 22 June 2012

Decision date:

28 September 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2. The development application for an affordable housing development at 27A and 31-35 Louis Street, Granville, is refused.

3. The exhibits, except Exhibits 1 and E, may be returned.

Catchwords:

DEVELOPMENT APPLICATION - Residential flat building affordable housing.
Whether the proposed development is prohibited. Compatibility of the design of the development with the character of the local area.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Local Environmental Plan 2011
Standard Instrument - Principal Local Environmental Plan
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and State Environmental Planning Policy - Housing for Seniors or People with a Disability (Seniors SEPP).

Cases Cited:

Assaf v Parramatta City Council [2012] NSWLEC 1254
Chami v Bankstown City Council [2012] NSWLEC 1120
Centro Property Limited v Hurstville City Council & Anor [2004] NSWLEC 41
Chehade v Bankstown City Council [2012] NSWLEC 1122
Chehade v Bankstown City Council [2012] NSWLEC 221
Peninsula Development Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244
Project Venture Pty Ltd v Pittwater Council [2005] NSWLEC 191
Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129

Category:

Principal judgment

Parties:

Pingola Pty Ltd and Finiqs Pty Ltd (Applicant)

Parramatta City Council (Respondent)

Representation:

Mr P Tomasetti, SC (Applicant)

Mr S Kondilios, solicitor (Respondent)
Solicitors
Tudehope Partners (Applicant)

Maddocks Lawyers (Respondent)

File Number(s):

10700 of 2011

Judgment

1. This is an appeal against the refusal by Parramatta City Council (council) of a development application (DA/111/2011) for an affordable housing development at 27A and 31-35 Louis Street, Granville (site).

1. The key issues between the parties are whether:

i. the proposed development is prohibited; and

ii. the design of the proposed development is compatible with the character of the local area.

The site and its locality

1. The site is located on the northern side of Louis Street. It is irregular in shape with an overall site area of 5,645.48 sq m including a 3.2 m wide access-handle along the eastern site boundary between 27 Louis Street and a Sydney Water stormwater drain.

1. The site comprises six lots (Lots 2-4 DP333212, Lot C DP 365422, Lot B DP 367710 and Lot 2 DP 379818). 31-35 Louis Street each contain a single storey dwelling house that front Louis Street (Lots 2-4 DP333212) and the remainder of the site is vacant. 27A Louis Street (Lot C DP 365422) is a relatively large level area at the centre of the site which adjoins an intermittent creek and has access off Louis Street via the access handle (adjoining 27 Louis Street). Lot B DP 367710 and Lot 2 DP 379818 are flood prone land, which is vegetated.

1. To the east and west, the site adjoins detached single dwellings. To the north the site adjoins the rear of residential properties which front John Street.

1. Louis Street is predominantly one and two storey dwellings on large allotments. There are also dual occupancy developments, town houses and residential flat buildings (11 and 28-30 Louis Street). There is a gymnasium and local shopping centre on the corner of Louis Street and Blaxcell Street.

Proposal

1. The proposal is for demolition, tree removal and construction of a two storey affordable housing development comprising 44 dwellings over a basement car park. The dwellings are in six residential flat buildings which contain:

Building A - 6 dwellings, being 3 x 1 bedroom units, and 3x2 bedroom units

Building B - 8 dwellings, being 1 x 1 bedroom unit, and 7x2 bedroom units

Building C - 4 dwellings, being 2 x 1 bedroom units and 2x2 bedroom units

Building D - 4 dwellings, being 2x1 bedroom units and 2x2 bedroom units

Building E - 12 dwellings, being 2 x 1 bedroom units and 10x2 bedroom units

Building F - 10 dwellings, being 10x2 bedroom units.

Planning framework

1. The development application was lodged on 4 March 2011 and the site was then zoned 2(a) Residential under Parramatta Local Environmental Plan 2001 (LEP 2001). On 7 October 2011, Parramatta Local Environmental Plan 2011 (LEP 2011) commenced and the site is within the R3 Medium Density Residential Zone.

1. Both LEP 2001 and LEP 2011 permit dwelling houses with consent on the site. Development for residential flat buildings is prohibited under both instruments. Multi dwelling housing is prohibited under LEP 2001 but permissible with consent under LEP 2011.

1. LEP 2011 includes a savings provision relating to development applications (cl 1.8A), which provides:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced

1. The parties agree that the development is for the purpose of a "Residential Flat Building" but disagree whether it is permissible on the site under the version of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) in force at the time the application was made. Division 1 of Part 2 applies to infill affordable housing. Clause 10 specified the land to which Div 1 applied, and cl 11 specified the development to which Div 1 applied. Clause 10 relevantly provided:

(1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone:

(a) Zone R1 General Residential,

(b) Zone R2 Low Density Residential,

(c) Zone R3 Medium Density Residential,

(d) Zone R4 High Density Residential.

1. The parties disagree whether the 2(a) zone is an "equivalent zone" for the purpose of cl 10(1) and consequently whether Division 1 of Part 2 of the SEPP ARH applied to the site and therefore whether the development may be carried out with consent under cl 12. This issue is addressed later in the judgment.

1. Clause 14 of SEPP ARH provides standards that cannot be used to refuse development consent which include density and scale (cl 14(1)(a)): site area (cl 14(1)(b)); landscaped area (cl 14(1)(c)); deep soil zone (cl 14(1)(d)); solar access (cl 14(1)(e)); parking (cl 14(2)(a)) and dwelling size (cl 14(2)(b)). The parties did not raise issue with these requirements, other than cl 14(1)(a) and cl 14(1)(e), which is discussed later in this judgment.

1. On 20 May 2011, the SEPP ARH was amended by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 (Amending SEPP). Clause 10 of the Amending SEPP relevantly provides:

(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:

(a) the development concerned is permitted with consent under another environmental planning instrument, and

.....

1. The parties agree that the proposed development is not permitted with development consent in the 2(a) Residential Zone under LEP 2001 or in the R3 Medium Density Residential zone under LEP 2011. Consequently, the development would not be permissible under the Amending SEPP, other than for the savings and transitional provisions in cl 54A (2). The parties disagree on the interpretation of this subclause but agree that the application should be determined as if the Amending SEPP has not been made, other than the mandatory consideration in cl 54A(3) which provides:

(3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

1. The compatibility of the design of the development with the character of the local area is a key issue in dispute between the parties. However, they disagree on the application of cl 54A(3). This issue is addressed later in the judgment.

Evidence

1. The Court visited the site. No evidence was given on site but written submissions from objectors to the proposal were provided to the Court. The main issues raised by objectors relate to traffic, parking, privacy, solar access and waste management.

1. The Court heard expert planning and urban design evidence from Mr S McDonald and Ms G Morrish, for the council, and Mr A Caladine and Professor P Webber, for the applicant.

Whether the proposed development is permissible

1. During the hearing the Court raised with the parties the issue of whether the development met the requirements of cl 10(1) of SEPP ARH and consequently whether it is a development which may be carried out under cl 12 of SEPP ARH and met the requirements of an "existing application" as defined in cl 54A(2) of the Amending SEPP ARH. Following an adjournment, the parties made submissions on this question.

Applicant's submission

1. Mr Tomasetti's SC, primary submission is that the savings provision in cl 1.8A of LEP 2011 applies to a development application made under the LEP, the development application for which consent is sought is made under the provisions of SEPP ARH. Consequently, the site is zoned R3 under LEP 2011 not 2(a) under LEP 2001. It is therefore within a land use zone referred to in cl 10, and Division 1 of Part 2 of SEPP ARH applies. The development is permissible with consent.

1. Mr Tomasetti's secondary submission is that if cl 1.8A of LEP 2011 applies and the site continues to be within the 2(a) zone under LEP 2001, then this land use zone is equivalent to the R1 land use zone in the Standard Instrument - Principal Local Environmental Plan (Standard Instrument) and is therefore land referred to in cl 10, and Division 1 of Part 2 of SEPP ARH applies. The development is permissible with consent.

1. Mr Caladine provided the following table of land uses permissible in both the 2(a) zone under LEP 2001 and the R1 zone under the Standard Instrument:

Standard Instrument	LEP 2001
Use	Named Land Use Zone R1 General Residential	Equivalent Land Use Zone 2(a) Residential
Bed and breakfast establishments	•
Boarding house	•
Car parking spaces	• (not an identified type of development in Direction 5)
Community Facilities	•
Drainage (other than minor drainage works)	• (not an identified type of development in Direction 5)
Dual occupancies	• Semi detached dwelling
Dwelling houses	•
Educational establishments
Granny flats	• Semi detached dwelling (not an identified type of development in Direction 5)
Home based childcare services	•	•
Home businesses	•	•
Hospitals	•
Housing for older people or people with a disability	•	•
Local shops	•	•
Medical consulting rooms	•
Places of public worship	•	•
Public building	• (not an identified type of development in Direction 5)	•
Public utility installations (other than gas holders and generating works)	• (not an identified type of development in Direction 5)	•
Public transport facilities	• (not an identified type of development in Direction 5)	•
Recreation facilities	•
Roads	• (roads must be permitted)	•
Telecommunication facilities	• (not an identified type of development in Direction 5)	•
Demolition	• (not an identified type of development in Direction 5)	•
Subdivision	• (not an identified type of development in Direction 5)	•

1. Mr Tomasetti submits that Direction 5 of the Standard Instrument specifies the types of land uses that may only be included in a land use table. A number of uses in the 2(a) zone in LEP 2001 are not uses, such as car parking spaces, that are included in Direction 5 but, in Mr Tomasetti's submission, should be included for the purpose of determining whether it is an equivalent zone, as they are uses that can be carried out in the R1 zone.

1. In Mr Tomasetti's submission, the number and nature of uses in the 2(a) zone under LEP 2001 are equivalent to those in the R1 zone in the Standard Instrument.

Council's submission

1. Mr Kondilios referred to previous decisions of the Court that have considered the question of "equivalent zone" (see Chami v Bankstown City Council [2012] NSWLEC 1120 (Chami 2012); Chehade v Bankstown City Council [2012] NSWLEC 1122 (Chehade); Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129 (Stebbing)).

1. Mr Kondilios submits that using the approach adopted in Chami 2012, Stebbing and Chehade, a comparison of the permissible uses (both with and without consent) in the four residential zones contained within the Standard Instrument against those uses permitted in the 2(a) zone under the LEP 2001 is required. He provided the following table which compares those uses:

Use		Parramatta Local Environmental Plan 2001	Standard Instrument
2(a)	R1	R2	R3	R4
attached dwellings		•	•	•
bed and breakfast establishments		•
boarding houses		•	•	•	•
car parking spaces		•
centre based child care services		•	•	•	•
community facilities		•	•	•	•
drainage (other than minor drainage works)		•
dual occupancies		•
dwelling houses		•	•	•
educational establishments		•
granny flats		•
home based child care services		•
home businesses		•	•
hospitals		•
housing for older people or people with a disability	•		•	•
local shops	•		•	•	•
medical consulting rooms	•
places of public worship	•		•	•	•
portable recycling facilities	•
public buildings	•
public utility installations (other than gas holders and generating works)	•
public transport facilities	•
recreation areas	•
recreation facilities	•
roads	•
telecommunications facilities	•
Residential Flat Buildings	•	•
Shop Top Housing	•	•
Group Homes	•	•	•
Hostels	•
Multi-dwelling housing	•	•
Respite Day Care Centres	•	•
Semi-attached dwellings	•	•

1. From an evaluation of the common uses in each zone, Mr Kondilios submits that there are significant differences between the 2(a) zone under the LEP 2001 and the residential land use zones under the Standard Instrument, to the extent that neither the R1, R2, R3 or R4 zones are equivalent for the purposes of SEPP ARH. Consequently, the SEPP does not apply to the development, and the development is prohibited.

Findings

1. I do not accept Mr Tomasetti's primary submission that the development is permissible because the application is made under SEPP ARH and therefore the savings provision in cl 1.8A of LEP 2011 do not apply. The site is zoned under LEP 2011 and is within a named land use zone for the purpose of cl 10 of SEPP ARH.

1. I have reached this conclusion on the basis that under s 76A, s 78A and the definition of "development application" in the EPA Act there is no requirement to elect which planning instrument an application is made under. Section 79C(1)(a)(i) of the EPA Act requires consideration of any environmental planning instrument of relevance to the application. Clause 8 of SEPP ARH does not give primacy to the policy, but rather, if there is an inconsistency between it and any other environmental planning instrument, SEPP ARH prevails to the extent of the inconsistency.

1. The development application was made before the commencement of LEP 2011 and is in relation to land to which the Plan applies, therefore the savings provision in cl 1.8A of LEP 2011 mandates that the development application must be determined as if LEP 2011 had not commenced. The provisions of LEP 2001 therefore apply to the development application, to the extent that they are not inconsistent with SEPP ARH. Under LEP 2001 to site is zoned 2(a), which is not a named zone for the purpose of cl 10(1) of SEPP 2011.

1. I also do not accept Mr Tomasetti's secondary submission that the 2(a) zone under LEP 2001 is an "equivalent zone" for the purpose of cl 10(1) of SEPP ARH.

1. Clause 10(1) required that the land be within one of the named land use zones, or be "within a land use zone that is equivalent to any of those zones", provided that development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within that zone. Dwelling houses were permissible in the 2(a) zone under LEP 2001, and so that proviso is satisfied.

1. LEP 2001 was not made under s 33A(2) of the Act, and accordingly cl 5 of the SEPP ARH applies. It provides:

5 Interpretation - references to equivalent land use zones

(1) A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act:

(a) that the Director-General has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or

(b) if no such determination has been made in respect of the particular zone, is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone.

(2) An assessment made by a relevant authority under subclause (1) (b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone.

(3) In this clause, relevant authority means:

(a) the public authority proposing to carry out the development, or on whose behalf the development is proposed to be carried out, or

(b) if the development is to be carried out by or on behalf of a person other than a public authority, the consent authority.

Note. Land use zones that are named in this Policy are those set out in the standard instrument.

1. It was common ground that the Director-General has not made a determination in regard to equivalent zones, and accordingly cl 5(1)(b) of SEPP ARH requires the Court to form an opinion as to whether the 2(a) zone under LEP 2001 is a land use zone in which equivalent land uses are permitted to those in a named land use zone under the Standard Instrument.

1. In Chehade v Bankstown City Council [2012] NSWLEC 221 (Chehade No 2), Sheahan J upheld the approach taken in Chehade where Morris C at [26] states:

Determination of whether the site is within an equivalent zone for the purposes of SEPP ARH is a pre-condition to the grant of consent. The Director-General of the Department of Planning has not made a determination in relation to this issue and had that been the case, the applicant, council, the community and the Court would be well placed to understand the application of the policy. As this has not occurred, each application has to have regard to the provisions of clause 5. Clause 5(1)(b) requires the Court to form an opinion whether the 2(a) zone is a land use zone in which equivalent land uses are permitted to those zones named in clause 26. This requires a review of the land uses permitted in the four residential zones contained within the Standard Instrument - Principal Local Environmental Plan (the Standard Instrument) and those uses permitted in the 2(a) zone under the LEP, having particular regard to the definitions as these vary between the instruments. I have undertaken this review and have excluded the Medium Density R3 and High Density R4 zones as being equivalent to the 2(a) zone, particularly because dwelling houses are not permitted in the R3 zone, other than as attached housing which is three or more dwellings and the R4 zone permits residential flat buildings, neighbourhood shops and shoptop housing, uses prohibited in the 2(a) zone and uses that suggest higher density development than that permitted in that zone. Similarly, I have excluded the B1, B2 and B3 zones due to the considerable differences in permitted uses.

1. Sheahan J accepted the submission that the Commissioner had applied the correct test under cl 5(1) being:

Once land uses which are permitted within the identified zones are identified, the task prescribed in clause 5(1)(b) is for the consent authority (in this case the Commissioner) to form the opinion that in the Residential 2(a) Zone 'equivalent land uses are permitted'. The comparison exercise involves, firstly, identifying what those land uses are that are permitted in the Residential 2(a) Zone, and then forming an opinion as to equivalents with the identified zones.

1. Sheahan J accepted the Macquarie Dictionary definition of "equivalent" namely something that is "equal in value, measure, force, effect, significance" or "corresponding in position, function etc " rather than the same or identical. Further, that in forming the opinion as to equivalence involves a "component of comparison, but also a component of value judgment".

1. In this case, both parties have undertaken a comparison of the permitted land uses in the 2(a) zone under LEP 2001 against the permitted uses in the Standard Instrument. However, in undertaking this task, the parties have compared a different set of land uses.

1. The applicant has compared the permissible uses in the 2(a) zone against the same (or equivalent uses) in the R1 zone under the Standard Instrument. The additional permissible uses in the R1 zone such as attached dwellings, residential flat buildings and multi-dwelling housing have not been included. The applicant has also included uses, which in accordance with Direction 5 of the Standard Instrument, cannot be included in a land use table, but are uses that, in Mr Tomasetti's submission, can be carried out in a R1 zone.

1. Whereas, the council has compared the permissible uses in the 2(a) zone against those in the R1, R2, R3 and R4 zone in the Standard Instrument. It appears to be common ground that the 2(a) zone is not equivalent to the R2, R3 or R4 zone. In comparing the permissible uses in these zones with those in the 2(a) zone, I accept that they are not equivalent.

1. I do not accept the Applicant's approach to the comparison of uses in the 2(a) zone with the R1 zone. Clause 5(1)(b) of SEPP ARH refers to "land uses" in the plural. It is therefore necessary to make a judgment as to whether the set of land uses permitted in the 2(a) zone under LEP 2001 is equivalent to the set of uses permitted in the R1 zone in the Standard Instrument. It is also necessary to take into consideration the land uses that are not common between the 2(a) zone and the R2 zone in order to form an opinion as to the equivalence of the two zones. There is no basis to limit the consideration of the land uses permissible in the land use zone under consideration to only those uses which have an equivalent use in the Standard Instrument.

1. While different definitions are used in the Standard Instrument and LEP 2001 the nature of some uses is equivalent. For example local shops (LEP 2001) and neighbourhood shops (Standard Instrument) and housing for older people and people with a disability (LEP 2001) and seniors living (standard instrument) and public buildings (LEP 2012) and public administration building (Standard Instrument).

1. The following table compares the land uses permissible in the 2(a) zone under LEP 2001 with those in the R1 zone in the Standard Instrument. Permissible uses (with or without consent) in each zone are marked by a dot. The uses that Mr Tomasetti submits are equivalent by virtue of Direction 5 and which do not fall within a separate definition under the Standard Instrument are marked by a cross. The table equates land uses which are described differently, but which are in substance equivalent.

USE	2(a)	R1
Attached dwellings	●
Bed and breakfast establishments	●
Boarding houses	●	●
Car parking spaces	●	x
Centre based child care centres (Child care centre)	●	●
Community facilities	●	●
Demolition	●	x
Drainage (other than minor drainage works)	●	x
Dual occupancies	●
Dwelling houses	●	●
Educational establishments	●
Granny flats	●	●
Group home	●
Home based child care services (Home based child care)	●	x
Home businesses (Home occupations)	●	●
Hospitals	●
Hostels	●
Housing for older people or people with a disability (Seniors housing)	●	●
Local shops (Neighbourhood shops)	●	●
Medical consulting rooms	●
Multi-dwelling housing	●
Places of public worship	●	●
Portable recycling facilities	●
Public buildings (public administration building)	●
Public utility installations (other than gas holders and generating works)	●	x
Public transport facilities (passenger transport facilities)	●
Recreation areas	●
Recreation facilities	●
Residential flat building	●
Respite day care centres	●
Roads	●	●
Semi detached dwellings	●
Shop top housing	●
Subdivision	●	x
Telecommunications facilities	●	x

1. Uses common between the 2(a) zone and R1 zone include boarding houses, centre based childcare services, community facilities, dwelling houses, housing for older people or people with a disability, local shops and places of public worship. Notably, attached dwellings, multi-dwelling housing, residential flat buildings and shop top housing are permitted in the R1 zone, but prohibited in the 2(a) zone. Even, if I accept Mr Tomasetti's submission in relation to those uses which cannot be included in a land use table under Direction 5, there are 9 additional uses permissible in the 2(a) zone, which are not permissible in the R1 zone, including educational establishments, hospitals and public buildings.

1. In considering the set of permissible uses in the 2(a) zone under LEP 2001 and the set of permissible uses in the R1 zone under the Standard Instrument there are significant differences, not only in the numerical tally of shared and exclusive uses, but also in terms of the nature of the uses. I am therefore not satisfied that equivalent land uses are permitted in the 2(a) zone under LEP 2001 to those permitted in the R1 or the other named zones under the Standard Instrument. Clause 5(1)(b) is not satisfied.

1. The site of the proposed development is not land to which cl 10(1) of the SEPP ARH applied and consequently Division 1 of Part 2 of the SEPP ARH does not apply to the site and the development may not be carried out with consent under cl 12. For this reason the application must fail.

1. Clause 5(b)(2) of SEPP ARH provides:

(2) An assessment made by a relevant authority under subclause (1) (b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone.

1. While I have undertaken the assessment required under cl 5(b)(1), I note that I have reached the same conclusion as Pearson C in Assaf v Parramatta City Council [2012] NSWLEC 1254. She also found that equivalent land uses are not permitted in the 2(a) zone under LEP 2001 to those permitted in the named zones under the Standard Instrument and that cl 5(1)(b) of SEPP ARH was not satisfied.

Compatibility of the design with the character of the local area

1. The parties agree that the "relevant matters" or "factors" for consideration under cl 54A(3) are:

what is the local area?

what is the character of the local area?

what is compatibility?

is the design of the development compatible with the character of the local area?

What is the "local area"?

1. The experts agree that the "local area is principally the visual catchment in which the development will be viewed and that the wider context is also relevant (see Peninsula Development Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244). The area which forms the visual catchment for the site is bounded by Blaxcell Street, The Avenue, Louis Street and the properties on the southern side of John Street. Mr Caladine also considers that the northern side of John Street and the southern side of Louis Street are part of the visual catchment of the local area.

What is the character of the local area?

1. The experts agree that in addition to the commercial and flat buildings at the eastern end of Louis Street, the elements that create local character for the site are:

• narrow lot subdivision pattern, the frontage widths of lots and the rhythm of built form and separation this creates along the street;
• a detached typology at the streets with buildings orientated to address the street and a traditional pattern of front garden, dwelling and rear garden;
• one and two story scale of built form to the street;
• single storey development to the rear of the site;
• a generally consistent street setback for residential development (Louis Street and most of Brunswick Street);
• landscape character created predominantly by the front gardens of the lots with limited street tree planting;
• buildings orientated with their main outlook and access from the street;
• rear gardens following a traditional development pattern creating landscaped bands through the lots behind the houses.

1. Ms Morrish and Mr McDonald also consider that other character elements include front fences, driveways to one side and building materials of tile hipped roofs and a range of walling materials. In their opinion, the rear gardens provide a primary outlook for the dwellings and a landscape backdrop for the street. They recognise that the existing flat buildings and the commercial developments form part of the existing character but that they are not desirable elements that should be emulated.

1. Mr McDonald considers that the open stormwater channel divides Louis Street and forms two precincts within the local area with different characteristics. The site is to the west of the channel in an area which is predominantly lower density residential. The residential flat buildings and commercial development are to the east of the drainage channel.

1. Mr Caladine considers that the larger residential flat buildings and commercial development are part of the character, and while they are not elements that should be responded to, they contribute to a character which in his opinion, is heterogeneous.

1. The experts agree that a consideration of character in terms of compatibility requires consideration not only of the existing character, but also the future character. They generally agree that the future character is determined by the configuration of the lots, the existing buildings and the planning controls. However, they disagree on the form of development that is likely to occur in the local area under LEP 2011 and DCP 2011.

What is compatibility?

1. The experts agree that it is useful in the assessment of compatibility of the design of the development with the character of the local area to have regard to the principles in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. The design does not need to be the same to be compatible but it should respond to the desirable elements of the character of the area.

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

1. Ms Morrish and Mr McDonald consider that the proposed development is not compatible with either the existing or the future character of the local area. Ms Morrish was principally concerned about the streetscape appearance of the development resulting from the carpark driveway, the bins store and the setback of Building A which is not consistent with the setbacks of dwellings along the northern side of Louis Street. Both Ms Morrish and Mr McDonald accepted that the alternate scheme for the bin store proposed during the hearing (Option 3) was preferable but it did not resolve their concerns. They considered that the bin store should be relocated elsewhere in the development rather than presenting as part of the front façade to the building.

1. Ms Morrish was also concerned about the long linear form of development and its proximity to side boundaries and adjoining properties. In her opinion, the orientation of open space and living areas on the two levels of the development towards adjoining properties "borrowed their amenity and would impact on it". The separation distance between the buildings within the development also resulted in amenity impacts. To address these impacts, the development provided privacy screens which in turn reduced amenity and solar access to some units.

1. Mr McDonald shared these concerns. He acknowledged that the proposal has a floor space ratio (FSR) of (0.57:1) which is below the deemed to satisfy control in SEPP ARH (0.75:1) and the DCP (0.6:1). However, in his opinion, the form and distribution of floor space on the site was not acceptable. Further, the numerical compliance relied on the inclusion of Lot B DP 367710 and Lot 2 DP 379818 as site area for the purpose of calculating FSR. Both these lots are flood prone and are to be used as open space. This results in the development being located on the remaining lots with a bulk and distribution of built form that does not respond to the character of the local area.

1. Mr McDonald also considered that the two storey development was inconsistent with the existing character as it does not recognise the predominant pattern of development with building near the street and areas of open space at the rear. In his opinion, the openness at the rear is sought to be maintained by DCP 2011 which permits two storey development at the front part of a site and single storey at the rear.

1. Professor Webber and Mr Caladine consider that the design should principally respond to the existing character of the area. They recognise that the planning controls in LEP 2011 and DCP 2011 will encourage greater density and redevelopment of some site but consider that the pattern of development is yet to be established.

1. In their opinion, the proposal responds to the residential flats and commercial development as well as to the one and two storey dwellings. They consider the landscape design fronting Louis Street to be "generally consistent with and far superior to that of the present front yards along most of the street".

1. Professor Webber considered that the proposal will fit acceptably into its very immediate context for the following reasons:

• It is limited to 2 storeys in height;
• It will present to the street as 2 well separated blocks with reasonable setbacks from both side boundaries;
• Its architecture is 'suburban' and 'domestic' in its character and consistent with the form and detail of traditional dwelling houses in the area, it is not in any way assertively 'modern' in style.

1. Professor Webber and Mr Caladine consider it is reasonable to transfer the development potential of the flood affected areas of the site onto the developable areas, particularly when the FSR permitted under SEPP ARH is not being achieved.

Findings

1. Mr Tomasetti SC submits that under cl 54A(3) there is no requirement to be satisfied about compatibility with character, rather it is a matter to be taken into consideration in the balancing exercise that is undertaken in determining whether an application is appropriate. He submits that the need to provide affordable housing is an important part of this balancing exercise, which is reinforced by the aims of SEPP ARH.

1. Further, Mr Tomasetti submits that the "consideration" under cl 54A(3) does not include the future character of the local area but only the existing character. In his submission, if a consideration of desired future charcater were required this would have been explicitly stated, as is the case in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and State Environmental Planning Policy - Housing for Seniors or People with a Disability (Seniors SEPP).

1. Mr Kondilios submits that the "consideration" required by cl 54A(3) requires the Court "to give real consideration to relevant matters" (see Centro Property Limited v Hurstville City Council & Anor [2004] NSWLEC 41 at [34]).

1. In Mr Kondilios' submission, it is not sufficient to only consider compatibility and then grant consent, even if compatability is not achieved. Further, he submits that the design of the development should be compatible with both the existing and future character of the local area. The controls in LEP 2011 and DCP 2011 are relevant in determining the likely future character of the local area.

1. I accept that the social objectives of providing affordable housing are achieved through the application of SEPP ARH including its aims and relevant controls, which include a consideration of compatibility. While it may be open to me to approve the application even if its design is not compatible with the local area, I do not accept that this would be appropriate or that a consideration of the aims and their social objectives or the other controls in SEPP ARH would require such an outcome.

1. I do not accept that the consideration in cl 54A(3) is limited to a consideration of only the existing character but that the desired future character is also a relevant consideration. While the wording of cl 54A(3) does not explicitly refer to "future" character, it equally does not refer only to "existing" character. Even if I were to accept Mr Tomasetti's submission, for the reasons, which I discuss below, the proposal is not compatible with the existing character of the local area to the extent that it would warrant approval of the application.

1. As multi unit housing is permissible under LEP 2011, the desired future character for the local area is likely to change from a predominantly low density residential environment to one that is medium density. The form of medium density development that is likely to occur in the "local area" is shaped by the controls in LEP 2011 and DCP 2011.

1. The experts generally agree on the local area, its character and what is compatibility. However, they disagree on whether the design of the development is compatible with the local area. The key dispute is whether the proposal adequately responds to the essential elements that make up the character of the local area.

1. Professor Webber and Mr Caladine place greater emphasis on the character of the area that is influenced by the residential flat buildings and commercial/retail buildings. While they accept that these are not buildings, which should be emulated, they are part of the existing character within which the development will, in their opinion, comfortably fit. They reach this conclusion, primarily on the basis that there are the two separate buildings that front Louis Street with a landscape setback. The proposal is two storeys and is below the FSR in SEPP ARH and DCP 2011.

1. Ms Morrish and Mr McDonald place greater emphasis on the predominant built form of one and two storey dwelling which front Louis Street with open space at the rear. They raise concerns about the compatibility of Building A with the streetscape, the long, linear form of the buildings, their orientation towards adjoining properties and each other. In their opinion, while the residential density of the area will increase under the new planning controls the proposal is not compatible with either the existing or future character of the local area.

1. I accept the evidence of Ms Morrish and Mr McDonald. The drainage channel divides Louis Street and forms two precincts within the local area with different characteristics. The site is to the west of the channel in an area which is predominantly lower density residential. The residential flat building and commercial/retail development are to the east of the drainage channel which has a different character. This reflects the fact that the areas were in different zones under LEP 2001 (the site is in 2(a), the residential flat buildings at 11 Louis St and 28-30 Louis Street are in 2(e) and the commercial/retail are in 3(a)). While these buildings form part of the character of local area, to be compatible the design of the proposal should respond to the essential elements of development to the west of the drainage channel which the experts agree create the local character (see para 51).

1. The proposal has responded to the subdivision pattern and scale of existing development by providing two separate two storey buildings which are orientated to Louis Street with front gardens. However, the setback of Building A in combination with the location of the bin store and the driveway to the basement carpark are not characteristic of the area.

1. The long linear form of the two storey development which is orientated to the side boundaries is also not characteristic of the area and does not respond to the existing pattern of front gardens, building and rear gardens. It also does not respond to the future pattern of development envisaged under DCP 2011, which limits two storey development to the front part of the site with single storey to the rear.

1. The design of the proposal has done little to break up the length of the buildings through setbacks, articulation and landscaping. Buildings B (about 35 m), Building F (about 48 m) and Building E (about 43 m) present a continuous, largely uninterrupted façade and roof form to the adjoining properties. These buildings are orientated towards the adjoining properties with minimal setbacks (about 2.5 to 4.5 m). To achieve privacy there are few windows and while different materials are used these would not break up the façade or the bulk of the buildings.

1. Clearly the site is suitable for a medium density form of residential development. I do not accept that two storey development could only occur at the street frontage or that the orientation of buildings suggested by Ms Morrish is essential to achieve compatibility. I also do not accept that because the proposal is below the FSR in SEPP ARH that it is compatible.

1. As required by cl 54A(3) of the amending SEPP, in considering whether the design of the development is compatible with the character of the local area, for the reasons outlined above, I find that it is not and that development consent should not be granted.

Orders

1.   The appeal is dismissed.

2.   The development application for an affordable housing development at 27A and 31-35 Louis Street, Granville is refused.

3.   The exhibits, except Exhibits 1 and E, may be returned.

Annelise Tuor

Commissioner of the Court

**********

Decision last updated: 28 September 2012