Provident Homes Pty Ltd v Bayside Council

[2021] NSWLEC 1011

Land and Environment Court

New South Wales

Medium Neutral Citation:

Provident Homes Pty Ltd v Bayside Council [2021] NSWLEC 1011

Hearing dates:

13-14 October 2020, final documentation filed 22 October 2020

Date of orders:

12 January 2021

Decision date:

12 January 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application No. 2019/88 for a boarding house at 19 Valda Avenue Arncliffe is refused.

(3) The exhibits are returned with the exception of Exhibits U, V, W and 2.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – initial development in precinct up-zoned from low density to high density residential – design excellence – relationship with public reserve – street activation – relationship with adjacent site and its future development prospects

Legislation Cited:

Environmental Planning and Assessment Act 1979

Rockdale Local Environmental Plan

State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

Karavellas v Sutherland Shire Council [2004] NSWLEC 251

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Apartment Design Guide

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (March or July 2020)

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

Provident Homes Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Staunton (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/197693

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Bayside Council’s deemed refusal of Development Application No. 2019/88 (‘DA’). With amendments to the application, leave for which was granted by the Court, the DA is for demolition of existing structures and construction of an eight storey boarding house comprising 38 boarding rooms, a manager’s room and two levels of basement car parking at 19 Valda Avenue Arncliffe, legally described as Lot 100 DP 1230309 (‘site’).

Site and setting

2. I would note here that for the descriptive material that follows, I rely on the Amended Statement of Facts and Contentions (‘Ex 2’) prepared by Bayside Council (‘Council’).

Site

3. The site is located at the south-eastern end of Valda Avenue. It is a corner allotment on the southern side of the street and is some 522.9m² in area. The site has a primary frontage to Valda Avenue of 12.51m and a secondary frontage to Marsh Street of 45.45m. The site’s side boundaries are somewhat angled, rather than perpendicular, to Valda Avenue. In turn the site width might be better understood by the rear boundary dimension, shown as 11.37m in architectural plans. The site slopes from the rear towards the front boundary with a fall of some 3.2m.

Locality

4. Older style single and two storey dwellings are located in the site environs commonly with pitched and tiled roof forms and soft landscaping within the front setback areas. To the south of the site, on the opposite side of Marsh Street, is a well vegetated public park with play equipment. The park is known as Marsh Street Reserve. South again, although visually screened with vegetation and mounding, is a major traffic artery accessing Sydney Airport.

Statutory setting

5. The site is zoned R4 High Density Residential under the provisions of Rockdale Local Environmental Plan (‘RLEP’). The relevant R4 zone objectives 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.

6. Ex 2 indicates that the site and its surrounds has recently been “up-zoned” from R2 Low Density Residential.

7. Development for the purposes of boarding houses are permissible with development consent in the zone.

8. The maximum permissible building height under cl 4.3 of RLEP is 26.5m. The proposed maximum building height is 25.91m, thus complying with the applicable height control.

9. The maximum floor space ratio (‘FSR’) permitted under cl 4.4 of RLEP is 2.2:1. However, cl 29(1)(c)(i) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘ARHSEPP’) permits a 0.5:1 bonus beyond the existing maximum FSR otherwise permitted. In turn the maximum FSR applicable here is 2.7:1. The proposed FSR is 2.19:1, thus complying with the applicable FSR control.

10. Clause 6.14 of RLEP is concerned with design excellence and applies to the site (identified as falling within the Arncliffe Precinct in RLEP’s Design Excellence Map and thus captured by cl 6.14(2)(a).

11. Under cl 6.14(3), development consent “must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence”. In considering whether the development exhibits design excellence, the consent authority must have regard to the matters listed in cl 6.14(4).

12. The fact of the proposal’s compliance with applicable building height and FSR standards means that under cl 29(1)(a) and cl 29(2)(a) of ARHSEPP, the development cannot be refused on the grounds of “density or scale” and building height, respectively.

13. Further in regard to ARHSEPP, the proposal complies with certain other development standards at cl 29, which means the proposal cannot be refused on the grounds of landscaped area, solar access, parking or the gross floor area (GFA) of the boarding rooms themselves. Compliance with ARHSEPP’s cannot refuse standard for private open space was contested.

14. Rockdale Development Control Plan 2011 (RDCP) applies. Of particular note in this matter were provisions in Part 4.2 “Streetscape and Site Context”, Part 4.3 “Landscape Planning and Design”, Part 4.6 “Car Parking, Access and Movement” and Part 7.7 involving provisions related directly to the recent up zoning of the “Arncliffe and Banksia” precincts, including the site and its environs.

Hearing proceedings

15. Proceedings were conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy, issued 1 July 2020. More particularly, the hearing was conducted as a virtual court room on the Microsoft Teams platform. In this instance the opportunity was taken to conduct a restricted inspection of the site and context. There was limited attendance, and social distancing was employed. There were written and oral submissions from objectors, in this instance the issue raised are adequately covered by Council’s contentions.

16. I will note here that the following experts provided evidence at the hearing itself and through input into expert reports.

Expertise	For
P Smith	Urban design	Applicant
G Morrish	Urban design	Council
S Lockley	Planning	Applicant
P Nash	Planning	Council
C Palmer	Traffic/parking	Applicant
M McCarthy	Traffic/parking	Council

Issues before the hearing

17. The number of contentions raised by Council as reasons for refusal of the application reduced prior to and during the course of the hearing with amendments to the application. However, what for me were the core issues, those relating to design excellence (cl 6.14 of RLEP) and character compatibility (cl 30A) remained in play, with the former in particular proving determinative in this case. In this judgment, after further outlining particulars of cl 6.14, I frame the evaluation through examination of the following three topics: (1) Marsh Street relationship and character compatibility, (2) relationship with 17 Valda Avenue and implications for local character, and (3) site suitability. The issues relating to internal amenity and parking are given briefer consideration.

The jurisdictional test relating to design excellence

Statutory framework

18. Relevant provisions from cl 6.14 of RLEP are reproduced below:

6.14   Design excellence

(1)  The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2)  This clause applies to the following development—

(a)  development involving the erection of a new building or external alterations to an existing building within the Arncliffe Precinct or the Banksia Precinct,

…

(3)  Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4)  In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form, arrangement and external appearance of the development will improve the quality and amenity of the public domain,

(c)  whether the development detrimentally impacts on view corridors,

(d)  the requirements of any development control plan made by the Council and as in force at the commencement of this clause,

(e)  how the development addresses the following matters—

(i)  the suitability of the land for development,

(ii)  existing and proposed uses and use mix,

…

(iv)  the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii)  the achievement of the principles of ecologically sustainable development,

(ix)  pedestrian, cycle, vehicular and service access, circulation and requirements,

(x)  the impact on, and any proposed improvements to, the public domain,

(xi)  achieving appropriate interfaces at ground level between the building and the public domain,

(xii)  excellence and integration of landscape design.

(5)  In addition, development consent must not be granted to development to which this clause applies unless—

(a)  if the development is in respect of a building that is, or will be, higher than 12 metres or 3 storeys (or both) but not higher than 40 metres or 12 storeys (or both)—

(i)  a design review panel reviews the development, and

(ii)  the consent authority takes into account the findings of the design review panel, or

…

19. It is notable that cl 6.14(4)(d) directly provides that the requirements of RDCP are a consideration here.

Marsh Street relationship and character compatibility

20. The experts generally agree that the proposal meets deep soil and landscape requirements to Marsh Street (and generally). The street wall height conforms with the controls at Figure 7.7.43 of RDCP (six storeys), with the upper two levels setback from the street wall (originally in accord with the 3m RDCP requirement).

21. Key concerns of Council and its experts in regard to Marsh Street related to the proposal’s built form (little articulation) and ground level activation (“dominated by duplicated driveways, pathways and other services”), particularly given the existence of the public park (Marsh Street Reserve) directly opposite the site to the south of the road reserve.

22. Figure 7.7.33 of DCP is suggestive of an additional setback of the main building massing beyond the 3m landscape verge, as a consequence of private open space requirements of, what might be expected to be, the more typical RFB development in the precinct. However, there is no requirement for private open space for boarding rooms under ARHSEPP (the single room at the ground level does have private open space).

23. There was some agreement among the experts that the design modifications undertaken during the course of the hearing (and for which leave was granted), made some improvements to “building articulation”; here increasing the street wall building setback at the street level and providing for some façade articulation through providing for a significant “slot” in front of the lift well and adding “juliette balconies” (estimated as some 450mm in depth by the experts (Ex 9, p3), but indicated as 600mm in plans).

24. The modifications also saw the top two floors shift closer to Marsh Street (previously 3m now proposed as 1.95m). In regard to this the experts agreed (Ex 9, p 7):

“The reduction in the setback to the top two levels from Marsh St increases the visual perception of these levels and will not be consistent with the desired future character as the control requires 3m for other development in this precinct above street wall height.”

Consideration

25. In regard to Marsh Street, the proposal must be seen as providing only a very basic quality of public interface at street level, given the separated driveways, and waste management area in between, along with other aspects of the street level presentation (Ex U, Drawings DA3.01 and DA 2.03). This is an underperforming element of the proposal, generally, when considering Part 4.2 of RDCP.

26. The fact that the site overlooks the Marsh Street Reserve adds considerable weight to this concern. Marsh Street Reserve is a significant positive element in the local streetscape setting now and should continue to be, likely even moreso, into the future as development density increases substantially. This is also is recognised in Part 4.2 of the DCP.

27. I generally agree with Ms Morrish that “the DCP seeks to have active and interesting interfaces to ground level uses that are about more than just surveillance … about interaction within a community and buildings contributing to the life of the street at ground level” (Ex 9, p 8). If not the DCP, then those sentiments would align with what would be expected for a site opposite a public park in a burgeoning high density precinct, given the design excellence provisions applied purposively to this precinct. A particular consideration is cl 6.14(4)(e)(xi) of RLEP; concerned with how the development addresses the question of “achieving appropriate interfaces at ground level between the building and the public domain”.

28. Secondly, in regard to the built form, it seems clear that the proposal’s non-conformance with DCP requirements relating to the setting back of the two upper levels of the building is at odds with the expected local character. I see this concern as especially problematic for two reasons: (1) the increased visual massing perception would orient to an area of special public domain significance (ie Marsh Street Reserve), (2) the fact of this proposal’s status as an initial development within a precinct earmarked for higher density change (ie as a poor exemplar and potential precedent).

Relationship with 17 Valda Avenue and implications for local visual character

29. The question of the proposal’s configuration at its north-western façade and relationship with 17 Valda Avenue was well considered in evidence, including in regard to modifications made to the proposal during the course of the hearing as presented in Ex U. In the broad, the proposal would have an eight storey presentation to 17 Valda Avenue with the upper two levels setback 3m from the rest of the Valda Avenue street elevation. The site gradient partially hides the ground level at the rear. The length of the building to the side boundary is 26.15m.

30. Turning to the more particular, two groups of issues warrant mention. First is that there is some considerable articulation of the wall massing to the north-west (beyond the general wall to boundary configuration) with a 600mm setback at the upper two floors, a set of recesses to the lower façade generally of varying width and then there is the use of panelling as a visual feature. A second point of attention is in regard to the implications of the setbacks and recesses for future development at 17 Valda Avenue. They result in an odd arrangement whereby something of a “no-man’s land” would eventuate based on an assumption that 17 Valda Avenue would also develop, generally, to the boundary. Ms Morrish saw the 600mm setbacks at the upper levels as “tokenistic” (Ex 9, p6). Mr Smith did not see a need for the setbacks either and suggested: “if the court was of the mind to approve this development but considered the 0.6m setback was not useful, a condition that required level 6 and level 7 to (abut) with the boundary (as per the previous version) could be applied” (ibid).

31. The consideration of the implications of the 26m length of the building (and blank, albeit articulated 8 storey wall) with respect to future development of 17 Valda Avenue was also a matter of attention in evidence and will be addressed in my own considerations below.

Consideration

32. Under cl 6.14(4)(e)(iv) of RLEP I need to consider how the development addresses the question of its “(relationship) with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form”.

33. There are three dimensions to this question. The first is in regard to the direct amenity impacts on the existing residence at 17 Valda Avenue and the nearby low density residential setting. The second is in relation to future implications for development on 17 Valda Avenue. The third question, which is related to the second, is concerned with local visual character implications of the proposal, more widely.

34. In regard to the first question, I find that the wall would be a very intrusive visual element for 17 Valda Avenue. However, it seems to me Ms Morrish’s concerns in regard to the exposed “blank” wall at the common boundary have been generally addressed with the plan amendments. In some alignment with Mr Smith I also see that, of itself, the proposal, as finally before the Court, incorporates a reasonably well-articulated north-western façade to 17 Valda Avenue, in that, as indicated by Mr Smith “(it) is not a street façade and it is highly likely 17 Valda Street will redevelop (at) some time in the future.

35. Further, the fact of the site zoning, zone objectives, FSR and height controls all present indicators that the desired future character of the area is a “high density residential environment”. This presents a conflict for the low density setting that currently exists at 17 Valda Avenue. I accept Mr Smith’s evidence that, mindful of Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (‘Project Venture’), if it is character compatibility which is under examination, it is “more appropriate” to evaluate the proposal against that intended under current planning controls rather than the “character” which currently exists (Project Venture at [23]). Clearly a deeper side boundary setback, perhaps configured to align with Apartment Design Guide (ADG) requirements, would bring lesser impact. In this case, that would not make practical sense given the site width. However, the planning setting, and future anticipated development, makes me give some lesser weight to the obvious direct external impacts (mostly related to visual intrusion and massing) on the existing residence at 17 Valda Avenue, and for that matter other nearby dwelling houses.

36. Given the planning setting, there are more significant problems with the proposal’s relationship with 17 Valda Avenue than its direct amenity implications. It is, what I refer to as questions two and three above, that are core. That is, the effect of the development as proposed along this common boundary on future development prospects for 17 Valda Avenue and the wider visual implications of the blank wall.

37. Council’s uncontested evidence is that the more common development to be expected in a R4 zoned area, such as the site environs, is residential flat buildings (‘RFBs’). The DCP minimum lot frontage requirement for RFBs of 24m is referenced, along with the DCP’s reference to ADG built form separation, deep soil and landscape treatment controls. Mr Nash thought the “Urban Study” included in the architectural plans (Ex U, DA 0.02 – DA 06 – “Urban Study’) which provided generalised envelopes in the up zoned precinct was unrealistic, including in regard to what were seen as unlikely lot consolidation prospects. Mr Nash suggested as follows (Ex 1, par 38):

“Due to the width of the site, the proposal relies upon the creation of an 8 storey blank wall in order to maximise its own developable footprint and overcome its inherent spatial shortcomings (i.e. – its width and overall area). I consider that this outcome provides unreasonable physical impacts and constraints upon the neighbouring site(s) which are both matters that need to be considered when assessing compatibility for the purposes of the character test.

The length of the proposed wall along the northern side boundary is 26.5m long. A redevelopment on the neighbouring northern site would have difficulties in contending with this wall, due to its excessive length. This is because a compliant ADG building would have a maximum building depth of 18m glass line to glass line. The resultant outcome would be the proposed blank wall being exposed in perpetuity at one or both ends.”

38. Mr Smith was less concerned about the blank wall beyond the line of any future RFB and pointed to the possibilities of a mirror development of a boarding house on the site, which could provide for a similar building depth to that currently proposed. There was other design evidence in regard to future development in the Urban Study, with either the blank wall exposed, or with what might have been a mirrored boarding house development configuration on 17 Valda Avenue.

39. For this proposal to exhibit design excellence, its design form should not bring particular prejudice to prospects for achievement of “the highest standard of architectural, urban and landscape design” (objects of cl 6.14 of the RLEP) elsewhere and into the future.

40. I consider that the design excellence provisions, purposively incorporated into RLEP with the precinct’s shift to high density zoning, must be expected to deliver something better than the imposition of constraints on development at 17 Valda Avenue to a boarding house, or resulting in a very tall blank wall of considerable length at its north-western façade, with negative visual impacts more widely for the precinct into the future.

Site suitability

41. Under cl 6.14(4)(i) of the RLEP, there is a need for me to have regard to how the development addresses the matter of “the suitability of the land for development”.

42. I note the applicant’s evidence in regard to contact with the owner of 17 Valda Avenue. I also note the Council’s references to Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (‘Karavellas’), and its planning principle, as support for its site suitability contention. I generally accept the applicant’s position that Karavellas does not have direct application here in that there is not an instance of non-compliance with regard to minimum lot size, and the proposal is not affecting a setting of site isolation on another parcel.

43. The more relevant issue in regard to site suitability, which came up frequently in evidence, is in regard to the site’s width. Efforts to address Council design-related contentions through design amendments seemed to run into problems based on the basic limitations in regard to site width. The most notable here is that efforts to provide some massing offset to the upper levels at the north-west boundary seemed to bring consequences in regard to achieving a reasonable setback for the upper levels at the Marsh Street frontage (see [24]). The prominence of driveways to the Marsh Street façade, a limiting factor in regard to potential street level activation, was also linked to the site width concern in oral evidence.

Other issues

Internal amenity

44. There were a number of changes undertaken to plans during the course of the hearing related to improving the internal amenity offered to boarders and addressing concerns raised by Council. Notably, the provision of a common room on Levels 6 and 7 and external terracing (with landscape perimeter screening). The opportunity for this came about from the deletion of two boarding rooms. However, there were some consequential issues arising in the examination of the experts with regard to some of these changes. It was notable that efforts to provide for outdoor communal open space outside and to the south west of the building received little endorsement from the experts due to accessibility difficulties and uncertainty about neighbour impact.

Access and parking

45. It is clear that efforts have been made to accommodate parking requirements on this narrow site through mechanical means. I would not find this issue determinative of itself in this instance.

Conclusion

46. In accordance with the applicant’s submissions it is most certainly important to recognise that the local area is earmarked for a transition in form from the current low density status, and I agree with the applicant that it might be expected that the first development in a new precinct will have “juxtaposition” problems with that which exists prior. I would think this the case almost regardless of the design quality.

47. However, the fact that the drafters of RLEP made provisions for the inclusion of the Arncliffe precinct in the design excellence provisions of the RLEP is of significant weight. It provides a jurisdictional barrier, in that the Court is unable to approve the application unless it “considers that the development exhibits design excellence”. The clause objective is “to deliver the highest standard of architectural, urban and landscape design”, and while it is not necessary for an application to comply with this objective, the clause brings a reasonable expectation that an approvable development would, as a minimum, exhibit design qualities above or superior to standard levels of design.

48. There are important deficiencies in the proposal which seem to other than optimise the future outcomes sought for the precinct. The proposal provides a substandard street level configuration, and opportunity for activation of Marsh Street; particularly important here given that Marsh Street Reserve is across the road. As indicated above, in regard to the north-western boundary treatment, including the relationship with 17 Valda Avenue, the proposal unreasonably provides for unresolved problems for future development.

49. When I consider all of the matters I am required to consider under cl 6.14 of RLEP, I do not consider that the development exhibits design excellence. As outlined above, there are significant failings in regard to the following subclauses of cl 6.14(4):

(b) whether the form, arrangement and external appearance of the development will improve the quality and amenity of the public domain,

…

(d) the requirements of any development control plan made by the Council and as in force at the commencement of this clause,

(e) how the development addresses the following matters—

(i) the suitability of the land for development,

…

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

…

(vi) street frontage heights,

…

(xi) achieving appropriate interfaces at ground level between the building and the public domain,

50. Having given consideration to other design features of the proposal, I do not see anything to sufficiently counter these underperforming aspects.

51. There is no jurisdiction to approve the application.

52. The Court orders:

1. The appeal is dismissed.

2. Development application No. 2019/88 for a boarding house at 19 Valda Avenue Arncliffe is refused.

3. The exhibits are returned with the exception of Exhibits U, V, W and 2.

.…………………………

P Walsh

Commissioner of the Court

**********

Decision last updated: 12 January 2021