Rohani Investments Pty Ltd v Northern Beaches Council

[2021] NSWLEC 1464

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rohani Investments Pty Ltd v Northern Beaches Council [2021] NSWLEC 1464

Hearing dates:

17-18 August 2021

Date of orders:

03 September 2021

Decision date:

03 September 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

Proceedings 2020/342803

The Court orders that:

(1) The appeal is upheld.

(2) That development application DA/2020/744 for demolition of existing structures, the construction of a two-storey boarding house of a total of 12 rooms and 1 managers room, carparking, landscaping and ancillary works at 635 Warringah Road, Forestville (Lot 1 DP 28219) is approved subject to the conditions annexed at ‘A’.

(3) The exhibits are returned with the exception of Exhibits 1, A, B and J.

Proceedings 2020/342804

The Court orders that:

(1) The appeal is upheld.

(2) That development application DA/2020/745 for demolition of existing structures, the construction of a two-storey boarding house of a total of 12 rooms and 1 managers room, carparking, landscaping and ancillary works at 633 Warringah Road, Forestville (Lot 15 DP 212195) is approved subject to the conditions annexed at ‘A’.

(3) The exhibits are returned with the exception of Exhibits 2, E, F, and K.

Catchwords:

DEVELOPMENT APPLICATIONS – two adjoining boarding house developments – amended plans – planning and urban design experts agree contentions resolved – public submissions – evaluation of merit of the development applications – appeal upheld

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 29, 30, 30A, 30AA, 54C

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Infrastructure) 2007, cll 45, 101, 102, 106

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Warringah Local Environmental Plan 2011

Cases Cited:

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

Texts Cited:

Warringah Development Control Plan 2011

Development near Rail Corridors and Busy Roads, Department of Planning and Infrastructure’s

Category:

Principal judgment

Parties:

Rohani Investments Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton with T Poisel (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Bick and Steele (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/342803; 2020/342804

Publication restriction:

No

Judgment

1. COMMISSIONER: These two proceedings relate to adjoining lots in Warringah Road, Forestville where the Applicant seeks development consent for construction of a boarding house on each of the adjoining allotments. For convenience and efficiency, the appeals were heard together, with orders that, where relevant, evidence in one appeal was taken to be evidence in the other. The details of the two appeals are as follows:

1. Matter Number 2020/342803: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of development application DA/2020/744. The development application seeks consent for demolition of existing structures, the construction of a two-storey boarding house with a total of 12 rooms and 1 managers room, carparking, landscaping and ancillary works. The development is proposed at 635 Warringah Road, Forestville (Lot 1 DP 28219).

2. Matter Number 2020/342804: This is an appeal pursuant to s 8.7 of the EPA Act against the Respondent’s refusal of development application DA/2020/745. The development application seeks consent for demolition of existing structures, the construction of a two-storey boarding house with a total of 12 rooms and 1 managers room, carparking, landscaping and ancillary works. The development is proposed at 633 Warringah Road, Forestville (Lot 15 DP 212195).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development applications pursuant to s 4.16 of the EPA Act.

3. Since the filing of the appeals, the development applications have been amended with leave of the Court, both on 13 July and 12 August 2021. The joint conferencing of the experts, and therefore the evidence in the proceedings address the development applications as amended. The significant amendments to the development applications can be summarised as:

• Provision of separate driveway access to each of the boarding house developments,

• Separation of the basement carparks to allow them to operate independently, and

• An amended landscape plan incorporating a landscaped separation between the proposed boarding houses and in the setback areas.

4. As finally amended, the development application DA/2020/745, at 633 Warringah Road, Forestville seeks consent for:

“Demolition of existing structures and the construction of a boarding house comprising 12 boarding rooms and a managers room with basement carparking and driveway as well as associated earthworks and landscaping”.

(Exhibit E)

5. As finally amended, the development application DA/2020/744, at 635 Warringah Road, Forestville seeks consent for:

“Demolition of existing structures and the construction of a boarding house comprising 12 boarding rooms and a managers room with basement carparking and driveway as well as associated earthworks and landscaping”.

(Exhibit A)

6. At the commencement of the hearing, the Respondent confirmed that, on the basis of the amendments to both development applications and provision of additional information, no contentions remain in the proceedings with the exception of the consideration of the public interest as represented by the objectors’ submissions.

The sites

7. Both sites are located on the eastern side of Warringah Road, Forestville. The subject sites are highlighted in the following extract:

(Exhibit 1)

8. The site at 633 Warringah Road has an area of 727.2m², whereas 635 Warringah Road has an area of 720.8m². Both sites are located in the R2 Low Density Residential zone pursuant to Warringah Local Environmental Plan 2011 (LEP 2011).

9. The sites are within the ‘Landslip Risk Area A’ area on the Landslip Risk Map in LEP 2011.

10. The area surrounding the sites is characterised by detached one and two-storey dwelling houses of varying ages. The streetscape is characterised by generous landscaped areas within the front setbacks and medium-height canopy trees within the road reserve. The predominant building materials utilised in the immediate visual catchment of the sites are a mixture of brick and timber cladding, with tiled and colorbond roofing.

Public submissions

11. In determining the development applications, the Court is to take into consideration any submissions made. The submissions received by Northern Beaches Council since the lodgement of the development applications were tendered in the proceedings as part of the Respondent’s evidence. I have read and considered those submissions.

12. The Respondent confirms that the development applications were publicly exhibited in 2020 in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 and Warringah Development Control Plan 2011 (DCP 2011). This initial exhibition period generated 16 submissions for DA/2020/745 and 14 submissions for DA/2020/744. The concerns raised by the residents across both development applications can be summarised as:

• The proposals represent an overdevelopment of the sites and is out of character with the surrounding neighbourhood and the R2 Low Density Residential zone;

• The proposals represent excessive bulk and scale, with a large and unbroken façade;

• There is inadequate transport to service the developments;

• The development proposes inadequate parking for residents and visitors to the proposed developments;

• The adjoining streets, in particular the frontage to Warringah Road, do not have capacity for on-street parking which is not accommodated on sites;

• There is inadequate room on the kerbside to collect the required rubbish bins;

• Forestville has too many boarding houses and there is an oversupply of this form of housing. The census data does not support demand for such housing and instead highlights demand for seniors housing;

• The proposed developments provide opportunities for overlooking from windows and balconies to the adjoining properties. Request that all windows or balconies overlooking neighbouring properties be deleted or screened;

• The proposed boarding houses will generate excessive noise which will detrimentally impact the amenity of the adjoining properties;

• The overshadowing from the proposed developments will create unreasonable impacts on adjoining properties;

• Concern about the management and security of the boarding houses;

• Uncertainty of whether external lighting of the boarding houses will operate 24 hours and create sleep disturbance.

• Need for any consent to include the requirement for a 2.1m boundary fence in accordance with the acoustic report;

• Responding to the proposed development applications is impacting on leisure time of the adjoining residents;

• The parking area is not adequately secured;

• The development of the adjoining sites, both as boarding houses, at the maximum allowable 12 rooms, is not consistent with the intent of the of the State Government to reduce the density of boarding houses in low density residential environments;

• The architectural design of the two proposed boarding houses is not in keeping with the aesthetic of the area and will diminish the value of neighbouring properties.

13. During the hearing, provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed developments. A collation of their written notes was tendered by the Respondent as Exhibit 8. These objections emphasised many of the submissions summarised in the proceedings. In their oral submissions, the residents emphasised the following objections:

• The visual impact of the developments. In particular, the length of wall proposed in the boarding houses which are 280% larger than the surrounding existing dwellings. Further, the boarding houses have higher site coverage, lack articulation in their facades and were visually unappealing.

• That the proposed 2.1m boundary fence will not mitigate the visual impact of the boarding houses.

• That the neighbours at 637 Warringah Road will experience a reduction in the amenity of their outdoor living area from the visual impact, overlooking and reduction in privacy that will arise from the boarding houses.

• Further, the rear yard at 637 Warringah Road will also be overlooked by boarding house residents and the proposed windows and balconies did not have any screening.

• That the placement of the rubbish bins from the developments on Warringah Road will impact the sight lines for vehicles exiting onto Warringah Road.

• That the development of the adjoining sites, both for boarding houses, will create an intensity of development that will be uncharacteristic in the locality and will have acoustic, privacy and visual impacts that are not ameliorated in the proposed development applications.

• That the sites are not suitable for development as boarding houses. Residential boarding houses are better located in proximity to green space, transport and services.

• That the amended development applications were not accompanied by amended statements of environmental impacts which made reviewing them more time intensive and difficult for residents.

• That the residents’ concerns about the bulk and scale of the buildings, the privacy and the acoustic impacts have not been addressed in the amended plans.

• That the slope of the sites exacerbate the perceived scale and overshadowing impacts of the proposed developments.

• That the amended developments each retain eight Juliet balconies which are able to directly overlook the rear yards and internal rooms of the adjoining properties. These balconies provide no mitigation to these impacts.

Planning controls

14. An updated BASIX Certificate has been provided to support each of the amended development applications; this satisfies the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

15. Prior to the grant of consent to the development applications, I must consider if the land is contaminated and, if so, whether they are suitable or able to be made suitable for use as a boarding house. I accept the agreed position of the parties that 633 Warringah Road, Forestville has a history of residential use and no change of use is proposed. I note that 635 Warringah Road, Forestville was previously utilised as a veterinary clinic since 1968. I accept the agreed position of the parties that the sites pose a low risk to contamination. However, conditions of consent are proposed to address any unexpected finds during the construction of the developments. I find that cl 7 of State Environmental Planning Policy No 55 – Remediation of Land is satisfied.

16. The proposed development applications were referred to Ausgrid pursuant to cl 45(2) of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). For both development applications, Ausgrid responded that they had no objections to the proposed development.

17. Clause 101 of SEPP Infrastructure requires the consent authority to be satisfied of certain matters due to the fact the sites have frontage to Warringah Road. Clause 101 requires satisfaction of three matters. Firstly, that where practicable and safe, vehicular access is provided to the developments by a road other than the classified road. I note that access to the sites is solely available from Warringah Road. Secondly, satisfaction that the developments will not impact the safety, efficiency and ongoing operation of the classified road. The development applications were both referred to Transport for NSW who raise no objection to the development applications. Further, the development applications are accompanied by Traffic and Parking Assessments which were reviewed by the Respondent’s traffic engineer who concluded that, subject to a condition requiring approval of a Construction Traffic Management Plan (CTMP), the development applications are acceptable. I am satisfied that the developments will not impact the safety, efficiency and ongoing operation of Warringah Road. Thirdly, cl 101 requires the Court to be satisfied that development which is sensitive to traffic noise, such as residential development, is appropriately designed and located or includes measures which ameliorate traffic noise. The development applications are accompanied by an Acoustic Report prepared by Blackett Associates which concludes that, subject to the adoption of the reports’ recommendations, the internal noise levels required by the Department of Planning and Infrastructure’s publication ‘Development near Rail Corridors and Busy Roads’ will be met by the proposed developments. Compliance with the recommendations of the Acoustic Report is required by the annexed conditions. I am satisfied that the matters set out in cl 101 of SEPP Infrastructure are met.

18. Clause 102 of SEPP Infrastructure requires the consent authority to not grant consent to development for the purposes of residential accommodation unless it is satisfied that appropriate measures will be taken to ensure specific acoustic criterion are not exceeded. On the same basis as outlined in the preceding paragraph, I am satisfied that the requirements of cl 102 of SEPP Infrastructure are met.

19. The proposed development applications were referred to Transport for NSW pursuant to cl 106 of SEPP Infrastructure as traffic generating development. Transport for NSW provided their response which raises no objections to the development applications subject to the imposition of consent conditions.

20. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the development applications. The applications rely on Division 3 Boarding Houses. I am satisfied that cl 26(b) of SEPP ARH, Part 2 Division 3 of SEPP ARH applies to the sites as they are zoned R2 Low Density Residential. Further, I am satisfied that the sites are located in an accessible area, being located within 400m walking distance of a bus stop used by a regular bus service that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day Monday to Friday and between 08.00 and 18.00 on each Saturday and Sunday. The developments are permissible under SEPP ARH pursuant to cl 28.

21. As LEP 2011 does not include provisions nominating a maximum floor space ratio for the sites, cl 29(1) of SEPP ARH does not apply. The development applications comply with the ‘do not refuse’ provisions listed at cl 29(2) of SEPP ARH.

22. Clause 30 of SEPP ARH mandates that a consent authority must not grant consent to a boarding house to which the instrument applies unless the nominated boarding house standards are met. I am satisfied that both development applications demonstrate compliance with these standards as summarised below.

• Clause 30(a) – Communal Room. Each development application has more than 5 boarding rooms and a communal room is provided on both the ground and first floors.

• Clause 30(b) – Maximum Room Area. No boarding room excluding kitchen and bathroom will exceed 25m².

• Clause 30(c) – Restriction on Number of Room Occupants. No boarding room will be occupied by more than 2 adult lodgers. This restriction is also contained in the Plan of Management which forms part of the consent.

• Clause 30(d) – Bathroom and Kitchen Facilities. Adequate bathroom and kitchen facilities are provided for each lodger in each boarding room together with those facilities also being provided in the communal rooms on the ground and first floors.

• Clause 30(e) – Boarding House Manager. Each development application is capable of accommodating 23 lodgers and a dwelling for the on-site manager is provided on the ground level.

• Clause 30(f) – repealed.

• Clause 30(g) – Commercial Zone. Each development application is located in the R2 zone so this provision does not apply.

• Clause 30(h) – Motorcycle and Bicycle Parking. Each development application provides for 12 boarding rooms so 3 motorcycle spaces and 3 bicycle spaces are required. The ground floor provides 3 bicycle spaces and the basement contains 3 motorcycle spaces.

23. The provisions at cl 30A of SEPP ARH requires consideration of the local character:

30A   Character of local area

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.

24. The Court was assisted by town planning experts, Mr Jordan Davies for the Respondent and Mr Charles Hill for the Applicant. These experts conferenced with the party’s urban design experts, Mr Dominic Chung for the Respondent and Mr John MacPhail for the Applicant. The initial joint town planning and urban design reports was tendered as Exhibits 4 and 5 in the proceedings. 

25. In their joint report, the experts gave consideration to the compatibility of the proposed development with the character of the locality, as required by cl 30A of SEPP ARH. Their agreed evidence on the amended plans is extracted below:

“7. The amended plans which have been submitted provide a clear distinction between the two boarding house proposals upon 633 Warringah Road and 635 Warringah Road. The proposed boarding house on 633 Warringah Road contains separate basement parking and vehicular access off Warringah Road, with a sufficient landscaped setback area between the common boundary shared with 635 Warringah Road.

8. The amended plans have provided a deep soil landscape zone between the buildings in the order of 3m and 5.1m in width by separating the two boarding house developments upon 633 and 635 Warringah Road and removal of the joined basement level. The centralised corridor between the two development sites allows opportunity for meaningful landscape planting to be established between the buildings which is demonstrated on the submitted amended landscape plans. This separation results in a development which is in harmony with the surrounding character of the area which consists of detached one and two storey dwellings surrounded and separated by landscape planting.

9. The development is in compliance with the planning controls with regards to building setbacks, building height, building envelope and landscaped area under the Warringah LEP and Warringah DCP and therefore, representing a building form that would reasonably be expected and anticipated by the planning controls applicable to the site with regards to bulk and scale. Sufficient variation is provided for the roof form to address bulk and scale, along with deep soil landscaping areas along around the perimeter of the building to facilitate landscape planting to soften the development as viewed from the street and surrounding properties.

10. As a consequence, it is agreed that the proposed development is consistent Clause 30A SEPPARH and this contention is resolved by way of the amended plans.”

(Exhibits 4 & 5)

26. In determining the development applications, I have given consideration to the compatibility of the proposed developments with the character of the locality, as required by cl 30A of SEPP ARH. Applying the planning principle in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [22]-[31], I accept the evidence of the experts and find that the developments are compatible with the locality.

27. Clause 30AA of SEPP ARH states:

30AA   Boarding houses in Zone R2 Low Density Residential

A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.

28. The effect of cl 30AA of SEPP ARH is to limit boarding house development in an R2 Low Density Residential zone to a maximum of 12 boarding rooms. Clause 30AA was inserted into SEPP ARH and came into force on 28 February 2019. The relevant savings and transition provisions are at cl 54C of SEPP ARH:

54C Savings and transitional provisions—2019 amendment

(1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement.

(2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced.

(3) In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019.

29. As development applications DA/2020/744 and DA/2020/745 were lodged on 6 July 2019, the development standard in cl 30AA of SEPP ARH applies to the development applications.

30. I am satisfied that the amended plans provide a clear distinction between the two boarding houses and they are capable of, and are intended to operate independently. I find that both development applications are compliant with the 12-boarding room standard in cl 30AA of SEPP ARH.

31. The sites are zoned R2 Low Density Residential under LEP 2011. Boarding houses are permissible with consent in the zone. The objectives of the R2 Low Density Residential zone are reproduced below:

•  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 ensure that low density environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

32. In determining the development applications, I must have regard to the objectives for development in the zone: LEP 2011, cl 2.3(2).

33. Clause 2.7 of LEP 2011 provides that demolition is permissible with consent. Both development applications seek consent for demolition consistent with this provision.

34. Clause 4.3(2) of LEP 2011 prescribes a maximum building height development standard of 8.5m for any building on the land. Both of the proposed development applications comply with the height standard.

35. Clause 6.2 Earthworks applies as both development applications incorporate excavation. In determining the development applications, I have given consideration to the matters enumerated at subcl (3).

36. Clause 6.4 Sloping Land applies to the subject sites as they are marked ‘A’ on the Landslip Risk Map. In determining the development applications, I have reviewed the Applicant’s Geotechnical and Landslip Assessment and I am satisfied of the matters at subcl (3).

37. The DCP 2011 applies to the development applications. Of particular relevance to the objections raised by members of the public are the following controls:

• B1- Wall Heights

“Applies to Land

This control applies to all land identified on the Warringah Local Environmental Plan 2011 - Land Zoning Map as:

RU4 Primary Production Small Lots

R2 Low Density Residential

E3 Environmental Management

E4 Environmental Living

and to which an 8.5m maximum height of building control applies under LEP 2011. 

Objectives

• To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes.

• To ensure development is generally beneath the existing tree canopy level.

• To provide a reasonable sharing of views to and from public and private properties.

• To minimise the impact of development on adjoining or nearby properties.

• To ensure that development responds to site topography and to discourage excavation of the natural landform.

• To provide sufficient scope for innovative roof pitch and variation in roof design.

Requirements

1. Walls are not to exceed 7.2 metres from ground level (existing) to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas wholly located within a roof space).

Exceptions

This control may be varied on sites with slopes greater than 20% within the building footprint (measured at the base of the external walls), provided the building:

- does not exceed the 8.5 metre height development standard;

- is designed and located to minimise bulk and scale; and

- has a minimal visual impact when viewed from the downslope sides of the land.”

• B3 – Side Boundary Envelope

“Objectives

• To ensure that development does not become visually dominant by virtue of its height and bulk.

• To ensure adequate light, solar access and privacy by providing spatial separation between buildings.

• To ensure that development responds to the topography of the site.

Requirements

1. Buildings on land shown coloured on the DCP Map Side Boundary Envelopes must be sited within a building envelope determined by projecting planes at 45 degrees from a height above ground level (existing) at the side boundaries of:

• 4 metres, or

• 5 metres as identified on the map.

2. On land within the R3 Medium Density Residential zone, above and below ground structures and private open space, carparking, vehicle access ramps, balconies, terraces, and the like shall not encroach the side boundary envelope.”

• B5- Side Boundary Setbacks

“Objectives

• To provide opportunities for deep soil landscape areas.

• To ensure that development does not become visually dominant.

• To ensure that the scale and bulk of buildings is minimised.

• To provide adequate separation between buildings to ensure a reasonable level of privacy, amenity and solar access is maintained.

• To provide reasonable sharing of views to and from public and private properties.

Requirements

Development on land shown coloured on the DCP Map Side Boundary Setbacks is to maintain a minimum setback from side boundaries as shown on the map.

Side boundary setback areas are to be landscaped and free of any above or below ground structures, car parking or site facilities other than driveways and fences.

On land within the R3 Medium Density Residential zone, above and below ground structures and private open space, basement car parking, vehicle access ramps, balconies, terraces, and the like shall not encroach the side setback except as provided for under Exceptions below.

…”

• B7 Front Boundary Setbacks

“Objectives

• To create a sense of openness.

• To maintain the visual continuity and pattern of buildings and landscape elements.

• To protect and enhance the visual quality of streetscapes and public spaces.

• To achieve reasonable view sharing.

Requirements

Development is to maintain a minimum setback to road frontages.

The front boundary setback area is to be landscaped and generally free of any structures, basements, carparking or site facilities other than driveways, letter boxes, garbage storage areas and fences.

Where primary and secondary setbacks are specified, buildings and structures (such as carparks) are not to occupy more than 50% of the area between the primary and secondary setbacks. The area between the primary setback and the road boundary is only to be used for landscaping and driveways.

For land zoned E3 and not having frontage to Kamber Road or Kimbriki Road the minimum front building setback area is to be densely landscaped using locally occurring species of canopy trees and shrubs and free of any structures, carparking or site facilities other than driveways, letterboxes and fences.”

• B9- Rear Boundary Setbacks

“Objectives

• To ensure opportunities for deep soil landscape areas are maintained.

• To create a sense of openness in rear yards.

• To preserve the amenity of adjacent land, particularly relating to privacy between buildings.

• To maintain the existing visual continuity and pattern of buildings, rear gardens and landscape elements.

• To provide opportunities to maintain privacy between dwellings.

Requirements

Development is to maintain a minimum setback to rear boundaries.

The rear setback area is to be landscaped and free of any above or below ground structures.

On land zoned R3 Medium Density where there is a 6m rear boundary setback, above and below ground structures and private open space, including basement carparking, vehicle access ramps, balconies, terraces, and the like shall not encroach the rear building setback.

The rear building setback for land zoned IN2 Light Industrial at Tepko Road that adjoins land zoned R2 Low Density Residential is not to be used for industrial purposes or vehicle access.

The rear building setback for land zoned IN2 Light Industrial in the vicinity of Campbell Parade, Manly Vale is not to be used for industrial purposes or vehicle access.”

• D1 Landscaped Open Space and Bushland Setting

“Objectives

• To enable planting to maintain and enhance the streetscape.

• To conserve and enhance indigenous vegetation, topographical features and habitat for wildlife.

• To provide for landscaped open space with dimensions that are sufficient to enable the establishment of low lying shrubs, medium high shrubs and canopy trees of a size and density to mitigate the height, bulk and scale of the building.

• To enhance privacy between buildings.

• To accommodate appropriate outdoor recreational opportunities that meet the needs of the occupants.

• To provide space for service functions, including clothes drying.

• To facilitate water management, including on-site detention and infiltration of stormwater.

Requirements

1. The required minimum area of landscaped open space is shown on DCP Map Landscaped Open Space and Bushland Setting. To measure the area of landscaped open space:

a) Driveways, paved areas, roofed areas, tennis courts, car parking and stormwater structures, decks, etc, and any open space areas with a dimension of less than 2 metres are excluded from the calculation; 

b) The water surface of swimming pools and impervious surfaces which occur naturally such as rock outcrops are included in the calculation; 

c) Landscaped open space must be at ground level (finished); and 

d) The minimum soil depth of land that can be included as landscaped open space is 1 metre.

2. Where land is shown on DCP Map Landscaped Open Space and Bushland Setting as “Bushland Setting”, a minimum of 50% of the site area must remain undisturbed by development and is to be kept as natural bushland or landscaped with locally indigenous species.

3. In Cottage Point the relationship of the locality with the surrounding National Park and Cowan Creek waterway will be given top priority by enhancing the spread of indigenous tree canopy and protecting the natural landscape including rock outcrops and remnant bushland.”

• D3- Noise

“Objectives

• To encourage innovative design solutions to improve the urban environment.

• To ensure that noise emission does not unreasonably diminish the amenity of the area or result in noise intrusion which would be unreasonable for occupants, users or visitors.

Requirements

1. Noise from combined operation of all mechanical plant and equipment must not generate noise levels that exceed the ambient background noise by more than 5dB(A) when measured in accordance with the NSW Industrial Noise Policy at the receiving boundary of residential and other noise sensitive land uses. See also NSW Industrial Noise Policy Appendices

2. Development near existing noise generating activities, such as industry and roads, is to be designed to mitigate the effect of that noise.

3. Waste collection and delivery vehicles are not to operate in the vicinity of residential uses between 10pm and 6am.

4. Where possible, locate noise sensitive rooms such as bedrooms and private open space away from noise sources. For example, locate kitchens or service areas closer to busy road frontages and bedrooms away from road frontages

5. Where possible, locate noise sources away from the bedroom areas of adjoining dwellings/properties to minimise impact.”

• D6- Access to Sunlight

“Objectives

• To ensure that reasonable access to sunlight is maintained. 

• To encourage innovative design solutions to improve the urban environment and public open space. 

• To promote passive solar design and the use of solar energy.

Requirements

1. Development should avoid unreasonable overshadowing any public open space.

2. At least 50% of the required area of private open space of each dwelling and at least 50% of the required area of private open space of adjoining dwellings are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21.

Note

Overshadowing by vegetation will not form part of Council’s assessment of access to sunlight.

The planning principle established in the Benevolent Society v Waverley Council (2010) NSWLEC 1082 will be used in the assessment of sunlight.

Exceptions

Council may consider a variation to this control in the particular circumstances of a proposal, where an applicant can demonstrate, to the satisfaction of Council that:

i) the slope or topography of the site or adjoining property makes compliance impractical; and

ii) other design options have been investigated which would comply but would unreasonably constrain the development of an otherwise compliant building.”

• D8- Privacy

“Objectives

• To ensure the siting and design of buildings provides a high level of visual and acoustic privacy for occupants and neighbours.

• To encourage innovative design solutions to improve the urban environment.

• To provide personal and property security for occupants and visitors.

Requirements

1. Building layout should be designed to optimise privacy for occupants of the development and occupants of adjoining properties.

2. Orientate living areas, habitable rooms and windows to private open space areas or to the street to limit overlooking.

3. The effective location of doors, windows and balconies to avoid overlooking is preferred to the use of screening devices, high sills or obscured glass.

4. The windows of one dwelling are to be located so they do not provide direct or close views (ie from less than 9 metres away) into the windows of other dwellings.

5. Planter boxes, louvre screens, pergolas, balcony design and the like are to be used to screen a minimum of 50% of the principal private open space of a lower apartment from overlooking from an upper apartment.”

38. The town planning and urban design experts agree that the development applications, as amended, comply with the development controls stipulated by DCP 2011, with the exception of the Building Envelope Control at B3 (see extract at [37]). The development applications compliance with the built form controls is detailed by the experts as follows:

"Points of Agreement by the Experts

13. The proposed development is fully compliant with the minimum 0.9m side setback.

14. The proposed development on the northern elevation is fully compliant with the building envelope control. There are minor point encroachment on the southern elevation (internally facing wall between the developments) however this is not considered to be of any consequence in the presentation of building bulk and scale for the surrounding properties, with adequate soil depth for landscaping provided between buildings.

15. The building is full[y] compliant [with] the 8.5m height.

16. The building façade is compliant with the minimum 6.5m front setback and minimum 6m rear setback.

Points of disagreement by the Experts

17. Nil.”

(Exhibits 4, 5)

39. I accept the agreed evidence of the experts. Applying s 4.15(3A)(b) of the EPA Act, I am satisfied that, despite the variation to the building envelope control, the development applications meet the objectives of the control. Namely, the developments are, in my view, not visually dominant, the non-compliance does not impact the spatial separation between the buildings and the developments respond satisfactorily to the sites’ topography. I find that the variation to the building envelope control is warranted as the development applications are a reasonable alternative solution that achieves the objective of the standard.

Public Interest

40. As detailed at [6], the Respondent does not press any contentions in the proceedings, with the exception of the concerns raised by members of the public about the development applications. Having heard the oral submissions at the commencement of the hearing, I directed the experts to return to joint conferencing to consider those concerns and the earlier written submissions of the public in the context of the amended development applications.

41. The experts produced two supplementary reports which were tendered in the proceedings as Exhibits 13 and 14. Those reports identify seven key issues which were raised by objectors and were the subject of further evidence from the experts. Those being: visual privacy and overlooking; acoustic privacy; building bulk and scale, visual appearance and articulation; solar access; and compliance with the built form and DCP controls. The last issue I have previously addressed at [38]-[39]. The remaining issues are detailed below.

Visual Privacy and Overlooking

42. The experts identified two areas of potential adverse impact, firstly the eastern-facing balconies of the proposed upper floor boarding rooms at 635 and 637 Warringah Road, and secondly the windows on the northern façade of the proposed boarding house at 633 Warringah Road. The planning experts agreed evidence is as follows:

• Eastern façade:

“Points of Agreement by all Experts

2. The experts agree that the balconies adjoining rooms 9, 10, 11 and 12 upon the eastern elevation [in both development applications] are to be deleted from the plans.

3. The sliding doors which service these balconies are to be deleted and replaced with a window with a minimum 1m sill height.

4. A fixed privacy screen is to be attached to the outside of the building, covering the full extent of the window upon the eastern elevation for window 9, 10, 11 and 12 [in both development applications].

5. The privacy screen is to consist of fixed vertical louvres, with an angle fixed at 45 degrees in a north east direction.

6. The privacy screen is to project 500mm from the face of the building.

7. The privacy screen is to consist of either a timber material or an aluminiumaluminium material which has a ‘timber look finish’.

8. The experts agree this privacy screen will limit direct overlooking of adjoining properties, whilst providing a satisfactory level of articulation and allow sunlight amenity for the occupants of each room.

9. The experts agree the above changes can be dealt with by conditions of development consent which are setout below in this report.

Points of Disagreement

10. Nil.”

(Exhibit 13)

• Northern façade:

“Points of Agreement by all Experts

12. The raised 1.8 sill height window for bedroom 7 and 12 do not give rise to unreasonable privacy impacts for the property 637 Warringah Road.

13. The fixed privacy screen resolves visual overlooking and privacy from bedroom 8.

14. The deletion of the rear balconies and inclusion of privacy screening upon the eastern elevation as described above further mitigates direct overlooking into the rear yard of the adjoining properties.

15. The experts agree there is sufficient screening to the western facing balconies (adjoining Warringah Road) to limit direct overlooking of the front yard of the property at 631 Warringah Road.

16. The experts also agree that the three stair well windows on the northern elevation shall have obscure glazing to further remove opportunity for overlooking. This can be dealt with via conditions of development consent.

Points of Disagreement by the Experts

17. Nil.”

(Exhibit 13)

43. To implement the agreement of the experts, the annexed conditions of consent include the following:

DA/2020/745 [633 Warringah Road]

“8. Amendments to the approved plans

The following amendments are to be made to the approved plans:

a) The balconies upon the eastern elevation off room 9, 10, 11 and 12 shall be deleted from the plans.

b) The sliding doors upon the eastern elevation servicing rooms 9, 10, 11 and 12 shall be deleted and replaced with an operable window having a minimum 1m sill height.

c) A fixed privacy screen shall be provided over the full coverage of the eastern window upon rooms 9, 10, 11 and 12. The privacy screen shall consist of vertical fixed louvres, angled at 45 degrees from the face of the building towards the north-east, projecting 500mm from the face of the building and to consist of timber or aluminium ‘timber like’ construction.

d) The three stair well windows on the northern elevation shall consist of obscure glazing.

e) The privacy screen to bedroom 8 shall consist of fixed horizontal louvres, angled at 45 from the face of the building directed upwards (preventing downward views), projecting 500mm from the face of the building and to consist of timber or aluminium ‘timber like’ construction.

f) The room schedule on drawings A:0001 C1, A:0002 C1, A:0003 C1 and A:0004 C1 shall be updated to correctly reflect the plan of management dated 17/08/2021 and the approved floor plans.

Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the construction certificate.

Reason: To ensure development minimises unreasonable impacts upon surrounding land.”

DA/2020/744 [635 Warringah Road]

“8. Amendments to the approved plans

The following amendments are to be made to the approved plans:

a) The balconies upon the eastern elevation off room 9, 10, 11 and 12 shall be deleted from the plans.

b) The sliding doors upon the eastern elevation servicing rooms 9, 10, 11 and 12 shall be deleted and replaced with an operable window having a minimum 1m sill height.

c) A fixed privacy screen shall be provided over the full coverage of the eastern window upon rooms 9, 10, 11 and 12. The privacy screen shall consist of vertical fixed louvres, angled at 45 degrees from the face of the building towards the north-east, projecting 500mm from the face of the building and to consist of timber or aluminium ‘timber like’ construction.

d) The balcony off bedroom 4 shall have the full height privacy screen replicated on the southern edge of this balcony, in the same treatment as proposed for remaining balconies on the western façade.

e) The two stair well windows on the southern elevation shall consist of obscure glazing.

f) The ground floor plan to be updated to show the details of the screening to the waste storage area consistent with the screening shown on the southern elevation.

g) The privacy screen to bedroom 8 shall consist of fixed horizontal louvres, angled at 45 from the face of the building directed upwards (preventing downward views), projecting 500mm from the face of the building and to consist of timber or aluminium ‘timber like’ construction.

h) The elevation which is marked 2 North Elevation on drawing A:1006 is in fact the Southern Elevation shall be corrected on the plans.

i) The room schedule on drawings A:0001 C1, A:0002 C1, A:0003 C1 and A:0004 C1 shall be updated to correctly reflect the plan of management dated 17/08/2021 and the approved floor plans. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the construction certificate.

Reason: To ensure development minimises unreasonable impacts upon surrounding land.”

44. I am satisfied that the amended development applications, with the preceding conditions, will not have an unreasonable adverse impact on the visual privacy of the adjoining neighbours.

Acoustic Privacy

45. The experts note that the oral evidence of the objectors raised concern regarding the potential for adverse noise impacts to arise from the boarding house residents. After reviewing the amended development applications and the respective updated Plans of Management for the boarding houses, the experts reached the following agreed conclusion:

“Points of Agreement by all Experts

2. The experts agree that the plan of management deals with noise mitigation and includes measures such as maximum occupancy of the communal areas (including maximum of 10 people in the outdoor open space), curfews on use of the communal areas and general housekeeping rules that are required to be complied with by the residents during the boarding house use.

3. The application is also accompanied by an acoustic report which makes recommendations around building construction and fencing and compliance with the acoustic report forms a conditions of consent.

4. A fence is not considered necessary between the two proposals to separate the private open spaces and there is a requirement of the plan of management that no more than 10 persons occupy the outdoor communal open space at once and the area being subject to curfew.

Points of Disagreement

5. Nil.”

(Exhibit 14)

46. The relevant conditions mandating ongoing compliance with the POM and construction of the 2.1m acoustic barrier on the rear boundary of 633 and 635 Warringah Road are included in the annexed conditions of consent. In particular, the annexed consent conditions include the following condition on both development applications:

“33. Acoustic Report Construction

Prior to the issuing of any occupation certificate, construction recommendations relating to fencing, windows, walls and doors outlined in the acoustic report prepared by Blackett Acoustics, dated May 2020 ref No: BA200114 are to be implemented into the development.

Prior to the issue of any occupation certification, confirmation shall be provided by a suitably qualified acoustic engineer demonstrating the following internal noise levels can be achieved for the development in accordance with Clause 102 of the SEPP (Infrastructure) 2007: The following LAeq levels are not exceeded— (a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)— 40 dB(A) at any time.

Reason: To ensure the premises is built to ensure noise amenity.

34. Mechanical Noise

An acoustic assessment is to be undertaken by a suitably qualified consultant to assess noise associated with chosen mechanical plant (air conditioning) for the development. The noise emission levels of the mechanical equipment must comply with the project specific noise trigger levels in Section 4.2.3 of the acoustic report prepared by Blackett Acoustics dated May 2020 ref BA20114.

Reason: Protect the amenity of the area.”

47. In addition, the consent includes a requirement for the respective boarding house managers to ensure that a 24-hour contact number is available for the two developments. I am satisfied that the amended development applications, with the annexed conditions, will not have an unreasonable adverse acoustic impact on adjoining properties.

Building bulk, scale, articulation and character

48. The following section should be read with the commentary at [25]-[26] and my conclusion that the proposed developments are compatible with the character of the locality.

49. In relation to the concerns raised by the objectors, broadly about the bulk and scale of the two proposed boarding houses, their lack of articulation and lack of compatibility with the locality, the experts’ agreed conclusions are:

“Points of Agreement by all Experts

7. The connected built form proposed previously has surface car parking between the two blocks. The current proposal of separated basement carparks have resulted in a complete separation of the two blocks allowing a deep soil landscaped buffer to occur. This has resulted in two blocks with the bulk and scale similar to two large dwellings on the double lot site. The built form complies with all the building setbacks and building envelopes. The middle section of each block has also been lowered with a flat roof area to provide roof form variations and articulation.

8. The external stairs have been removed and internalised within the building.

9. The 'zig-zag' profile shaped plans of the two blocks also provided vertical articulation / indents to the north and south facades. The indents created will also allow more landscaping to occur creating more vertical breaks when viewed from the northern and southern neighbours.

10. Additional upper floor articulation for the northern elevation is not considered necessary given the proposals full compliance with the building envelope, setback and wall height control.

Points of Disagreement by the Experts

11. Nil.”

(Exhibit 14)

50. Further, the Respondent tendered evidence from the Council’s Landscape Advisor concludes, for each development application, that:

“Amended Landscape Plan A:1008 Issue C1 Dated 10/8/20 prepared by MacPhail and Sproul was development in a series of discussions with John MacPhail following the s34 Conference. The amended plan now indicates a front setback containing three native canopy trees (Angophora costata), 2 large native screen trees (Waterhousia floribunda) and other additional native shrubs and groundcovers (Acacia teriminallis, Actinanthos helialndi and Hardenbergia violacea). I consider that the proposed planting will provide a buffer to the street front compatible with the local streetscape and that the proposed plant species adequately replace trees to be removed to replace the lost canopy over time.

…”

(Exhibit 10)

51. I accept the experts’ agreement and I am satisfied that the form of the proposed buildings and the amended landscape plan are acceptable and support the conclusion that the amended development applications should be approved, subject to the annexed conditions.

Solar Access

52. In their supplementary report, the experts examined the concerns raised by the oral submissions of residents in relation to overshadowing from the proposed development to adjoining properties. The experts’ agreed conclusions are as follows:

“Points of Agreement by the Experts

18. Drawing A:1010_C1 - Views to Communal Rooms shows the subject properties as viewed from the sun for each hour during the winter solstice. The drawing was prepared to demonstrate that a communal room in each property receives a minimum of 3 hours solar access during the day.

19. In each view the white form of 637 Warringah Road behind the subject site is visible. The seven views indicate that the proposed development blocks solar access at 9:00am and 10:am. After this time the northern facade of 637 Warringah road is largely uncovered, indicating that the house will receive 5 hours of solar access during the day.

20. The diagram also indicates the timber deck on the north side of 637 Warringah Road will receive sunlight from 11am till sometime around 1:30.

21. The DCP requires solar access for a minimum of 3 hours to 50% of the private open space of adjoining properties. The adjoining properties to the rear will continue to achieve solar access at this rate based on the submitted shadow diagrams. The adjoining property at 637 Warringah Road will retain 50% solar access to private open space areas when considering the combination of solar access achieved to the side setback area, rear setback area and front setback area at the various times throughout the day.

Points of disagreement by the Experts

22. Nil.”

(Exhibit 14)

53. I accept the agreed conclusions of the experts. Further, given the proposed development applications meet the standard for solar access set by DCP 2011, a more onerous standard cannot be required: s 4.15(3A)(a) of the EPA Act.

Conclusion and Orders

54. I have reviewed the evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that the experts have appropriately considered the issues raised by the contentions, the public, and the appropriate planning controls, and I accept their conclusions.

55. I am satisfied that both development applications warrant approval.

Proceedings 2020/342803

56. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2020/744 for demolition of existing structures, the construction of a two-storey boarding house with a total of 12 rooms and 1 managers room, carparking, landscaping and ancillary works at 635 Warringah Road, Forestville (Lot 1 DP 28219) is approved subject to the conditions annexed at ‘A’.

3. The exhibits are returned with the exception of Exhibits 1, A, B and J.

Proceedings 2020/342804

57. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2020/745 for demolition of existing structures, the construction of a two-storey boarding house with a total of 12 rooms and 1 managers room, carparking, landscaping and ancillary works at 633 Warringah Road, Forestville (Lot 15 DP 212195) is approved subject to the conditions annexed at ‘A’.

3. The exhibits are returned with the exception of Exhibits 2, E, F, and K.

…………………………

D M Dickson

Commissioner of the Court

Proceedings 2020/342803

Annexure A (266527, pdf)

Proceedings 2020/342804

Annexure A (263209, pdf)

Decision last updated: 03 September 2021