RPNA Group Pty Ltd v Randwick City Council

[2017] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation:	RPNA Group Pty Ltd v Randwick City Council [2017] NSWLEC 1240
Hearing dates:	3 May 2017, conditions 12 May 2017
Date of orders:	16 May 2017
Decision date:	16 May 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application No. 335/2016 for the demolition of existing structures and construction of a four storey boarding house at 2-8 Anzac Parade, Kensington is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and A.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and construction of a four (4) storey boarding house – whether development is compatible with the character of the local area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSW LEC 191
Category:	Principal judgment
Parties:	RPNA Group Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr A Pickles SC (Applicant) Mr A Seton, solicitor.(Respondent)   Solicitors: Conomos Legal (Applicant) Marsdens Law Group.(Respondent)
File Number(s):	2016/229136
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 335/2016 for the demolition of existing structures and construction of a four storey boarding house containing 39 rooms for student accommodation (including 2 accessible rooms), manager's room with common areas and provision of eight car parking spaces (including two disabled spaces), eight motorcycle spaces and eight bicycle spaces at 2-8 Anzac Parade, Kensington (the site) although the site has also has frontages to Tay Lane and Abbortford Lane.

2. The council maintains that the development application should be refused because the proposed development is not compatible with the character of the local area. The incompatibility relates principally to a portion of the setback to Abbortford Lane and more specifically relates to the inadequate setback at this location and the consequent bulk of the building when compared to other nearby buildings.

The Site

3. The site comprises 3 lots being Lot 2 in DP 4601 and Lots 1 and 2 in DP 519814. It has a western frontage of 44.198 m to Anzac Parade, a southern side boundary of 28.737 m to Tay Lane, an eastern rear boundary of 21.285 m to Abbortford Lane and a north-eastern side boundary of 25.687 m. The site is irregular in shape with an area of 803.5m2.

4. The site is currently occupied by two single storey dwellings with associated structures. There are a number of mature trees and shrubs located throughout the site as well as along the frontage to Anzac Parade, some of which are to be retained and some of which are proposed to be removed.

The Locality

5. To the north of the site, on the northern side of Tay Street is Tay Reserve which forms part of the Centennial Parklands and is identified as heritage item. Adjoining the site to the north-east is a 3 storey residential flat building with a street address of 1-3 Tay Street. To the east of the site on the opposite site of Abbotford Lane (with a street address of 1-3 Alison Road) is a 4 storey residential flat building.

6. To the south of the site, on the opposite side of Tay Lane (with a street address of 10 Anzac Parade) is a 4 storey residential flat building. To the west of the site, on the opposite side of Anzac Parade is E.S Marks Athletics Field which adjoins and forms part of Moore Park.

Relevant planning controls

7. The site is located within Zone R3 - Medium Density Housing pursuant to the provisions of Randwick Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible with consent in this zone.

8. The proposed development relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Division 3 addresses boarding houses and the development gains the benefit of SEPP ARH through cl 26(3). Clause 29 contains standards that cannot be used to refuse consent. The proposal satisfies the standards in relation to building height (cl 29(2)(a)), landscaped area (cl 29(2)(b)), solar access (cl 29(2)(c)), private open space (cl 29(2)(d)), parking (cl 29(2)(e)) and accommodation size (cl 29(2)(f)).

9. Clause 30A states:

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.

10. The parties differed on whether the proposed development satisfies cl 30A.

11. Randwick Comprehensive Development Control Plan 2013 (DCP 2013) is relevant, particularly Part A: Introduction, Part B: General Controls and Part C: Residential (Adaptable & Universal Housing and Boarding Houses).

Is the development “compatible with the character of the local area”?

12. Expert evidence was provided by Mr Jeffrey Mead, a town planner, for the council and Mr Andrew Robinson, a town planner and Mr Geoff Baker, an architect and urban designer for the applicant. The experts agree that the proposed development raises no character issues with height, setbacks, landscaping and appearance of the building from Anzac Parade and Tay Lane. The difference in opinion between Mr Mead and Mr Robinson and Mr Baker relates to a portion of the setback to Abbortford Lane. Mr Mead maintains that the reduced setback has an incompatible impact on the character of the local area whereas Mr Robinson and Mr Baker come to the opposite conclusion.

13. It was agreed that cl 30A asks the following questions:

What is the local area?

What is the character of the local area? and

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

What is the local area?

14. The experts differed on what they considered the “local area”; although not significantly. All accepted that the buildings in Anzac Parade, Tay Lane and Allison Road formed part of the local area, as well as Abbortford Lane. Mr Mead relied on the part of Abbortford Lane identified in the applicants Site Analysis plan and Mr Baker extended this area further along Abbortford Lane. Mr Robinson identified the visual catchment when viewed from the site in Abbortford Lane which more closely resembled the area identified by Mr Baker.

15. I am content to adopt the local area as being Anzac Parade, Tay Lane and Allison Road and the visual catchment of Abbortford Lane when viewed from the site although the specific delineation makes little difference to the question asked by cl 30A.

What is the character of the local area?

16. The experts generally agreed on the character of the area as being mixed given that the local area consists of three-storey residential flat buildings constructed in the 1970’s or 1980’s with little landscaping, more recent four-storey residential flat buildings with varying setbacks to Abbortford Lane, garages with nil setback to Abbortford Lane, a motel, dual occupancy developments and also a mechanical workshop. The setbacks along Abbortford Lane vary considerably with nil setbacks, setbacks used for car parking, landscaped setbacks, varied setbacks within developments and concreted setbacks. Consistent with the areas identified by the local area, Mr Mead focused on the development closer to the site whereas Mr Baker and Mr Robinson extended their assessment further along Abbortford Lane although I accept that “mixed” is the word that most accurately describes the character. Mr Baker describes the character as “highly variable” which is also an accurate description.

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

17. In relation to character and design, the experts adopt the planning principle for character and compatibility established in Project Venture Developments v Pittwater Council [2005] NSW LEC 191 which relevantly states:

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites

Is the proposal's appearance in harmony with the buildings around it and the character of the street?

18. The planning principle also notes that compatibility is different from sameness and it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

The evidence

19. Mr Mead places most emphasis on properties within the immediate visual catchment of the site, being those that surround the dead end section of Abbortford Lane. In his opinion, Mr Mead states development further south on the lane should be given less weight in the assessment. In terms of setbacks to the lane surrounding development provides the following

• 1-3 Anzac Parade - 3 8m-5m

• 1 Alison Road - 5m-9m,

• 3 Alison Road - 5m-6 5m,

• 5 Alison Road - 3m-4 5m, and

• 10 Anzac Parade - 10m at Tay Lane to nil to small element at southern end of site.

20. Mr Mead states that these setbacks contribute to a degree of openness by providing spatial separation between the 3 and 4 storey buildings. The setbacks also provide opportunity for consolidated areas of planting. Also, the areas of large expanses of hard stand at 1-3 Anzac Parade and 1 Alison Parade should not be followed by any contemporary proposal. A characteristic of the larger, longer north to south buildings at 1 Alison Road and 10 Anzac Parade is that they have larger setbacks than the narrower buildings at 3 and 5 Alison Road. The building at 10 Anzac Parade is four storeys and provides a larger setback from the lane. This assists with minimising impacts of bulk to those buildings which is important given the lane width.

21. Mr Mead states that the Abbortford Lane frontage has the characteristics of a rear setback. Accordingly, even if Part C2, cl 3 4 3 - Rear setback of DCP 2013 do not technically apply, Mr Mead states that a setback in the order of 5m minimum should be applied to maintain compatibility with character of the locality. The proposal is non-compliant with the 5m setback and has a minimum setback of 2m. Development to the south and adjacent to the east has much more generous setbacks generally compliant with the control.

22. Mr Mead states that the proposed development is not compatible with the character of the local area. Mr Mead accepts that the proposal is compliant with the FSR control, satisfactory in height and setback to Tay Lane and the materials used however Mr Mead is of the opinion that visual impacts are unacceptable. This is because the proposed building bulk and footprint is excessive and is not harmonious with the character of existing development surrounding the site or development that is likely under the current planning controls, upon redevelopment in the locality. Mr Mead’s primary concern relates to the eastern "half" of the development and its relationship with Abbortford Lane and adjacent development on Abbortford Lane. He advocates a 5m setback to this part of Abbortford Lane.

23. While accepting that the allowable FSR of 1.4:1 under the SEPP ARH is greater than the LEP 2014 FSR standard of 0.9:1 and that, in itself will result in some difference in appearance of development proposed under the SEPP ARH, Mr Meads concern is that the building provides for a visual bulk well beyond that even under the bonus provisions of the SEPP and that the difference in landscaped area, rear setback and building volume are such that harmony is not achieved with existing or likely future development in the locality.

24. Mr Robinson is of the opinion that the proposed development is compatible with the character of the local area. To Abbotford Lane, the building presents a three storey facade, with the upper floor level set back in order to improve visual and acoustic privacy between the site and the adjoining properties. This is consistent with the objective of protecting the amenity of residents. In response to Mr Mead's concern in relation to the additional bulk created by the at-grade parking, without contributing to gross floor area; Mr Robinson understands that the architectural decision not to provide basement parking was partially in response to the flood affectation of the site.

25. Mr Baker states that the proposed building is angled to Abbortford Lane and provides setbacks for the first 3 storeys (Ground Floor to Level 2),

• 3.5m at the north end of the lane (grid line G),

• 1.9m approximately 3m south of that point (grid line F), and

• 5.0m at the south end of the building at these levels (grid line A).

26. For the fourth storey (Level 3) setbacks are:

• 3.5m at the north end of the lane (grid line G), and

• 6.5m at the south end of the building at this level (grid line B).

27. Mr Baker states that these are not "minimal setbacks” and are consistent with DCP 2013, where for regularly shaped allotments the required side setbacks range from 2.0m to 4.0m, depending on frontage width.

28. Mr Baker provides a pictorial analysis of the existing condition of Abbortford Lane from its northern end (adjacent to the site) to the southern point where it bends to the left. The existing setbacks along the lane are highly variable. The older houses along Anzac Parade have garages on the laneway with no setbacks. Older two storey buildings along Allison Road are also built right up to the lane. Three and four storey flat buildings dating from around the 1970's provide space to accommodate parked cars and more recent apartment buildings at the southern end of the lane have variable setbacks ranging from about 3m to 6m. The new building at 7-9 Allison Road has a projecting element with minimal setback to Abbortford Lane. Also, a portion of the new apartment block at 20 Anzac Parade, immediately south of the site, is set well back from the lane to accommodate open space, but another part of it projects forward to within about 1.5m of the lane.

29. In summary, Mr Baker states that there is no discernible pattern of setbacks on Abbortford Lane and those proposed for the subject site lie somewhere in the midrange of the existing setbacks. The proposal will not be visually dominant as seen from the lane. The proposed setback at the corner of Abbortford Lane and Tay Lane is 5.0m for the first three storeys, a further setback from both laneways for the fourth storey, and substantial deep soil planting in the setback area in front of the building, will ensure that it is less prominent than its neighbours. Approaching the site from the south along Abbortford Lane, the projecting element of 20 Anzac Parade will cut off views of the proposal.

30. In terms of future character, and given the R3 zoning, future development along the lane will most likely take the form of apartment buildings according to Mr Baker. The applicable setback requirements will be those in DCP 2013, under Part C Medium Density Residential. Section 2 Site Planning, Clause 2.1 Site Layout Options states that "Laneway setbacks should be aligned with existing setbacks and where there is no consistent setback, a minimum of 1m setback is to be provided from the laneway". In Section 3 Building Envelope, cl 3.4.2 Side Setback requires setbacks from 2.0m to 4.0m, depending on lot frontage or merit assessment for irregular lots. The proposal is consistent with both these controls.

31. In relation to the objectives of cl 3.4 of DCP 2013, Mr Baker notes that the first objective concerns front setbacks and is therefore not relevant to side setbacks. The second objective references separation between buildings and the proposal provides ample separation from the flat building on the opposite side of the lane. The third deals with open space and planting and the proposal provides sufficient area and width of deep soil in the setback zone at the corner of Abbortford and Tay Lanes to accommodate substantial landscaping, including large trees.

Findings

32. In considering the different evidence of the experts and with the benefit of a site inspection, I can comfortably conclude that I accept the approach and conclusions of Mr Baker and Mr Robinson for a number of reasons. First, I accept that the analysis undertaken by Mr Baker was relevant and thorough and clearly established the variation to the setbacks along Abbortford Lane. Given the existing variations to the setbacks, for even the most recent developments, I can see no reason why the subject application should also not be considered similarly. I am also mindful that the section of Abbortford Lane where the variation to the setback is sought is part of a short dead end section of Abbortford Lane that is used only for rear access to 1 Anzac Parade and 1 Allison Road.

33. Second, the impact of the setback at its minimum distance of 1.9m is minimal, at best and occurs at a single point. This location is away from the corner of Tay Lane and Abbortford Lane where the maximum setback of 5m occurs. Mr Mead accepted that the visual impact of the proposed building from this intersection was acceptable.

34. Third, Part C2, cl 3.4.3 of DCP 2013 addresses rear setbacks (and includes properties with a rear lane frontage) and provides the source for Mr Meads requirement for a 5m setback to Abbortford Lane. Importantly, cl 3.4.3(iii) provides the opportunity to vary the rear setback under the following circumstances:

• Allotments with an irregular shape

• Allotments with the longest boundary abutting the street or the rear adjoining neighbour (that is, the frontage width being longer than the site depth)

• Allotments with the rear boundary abutting a laneway

• A central courtyard is provided in the development

35. The proposed development satisfies at least the first and third dot points and also the fourth if the communal living area is regarded as a “central courtyard”. These considerations, in my view, clearly support the proposed setback to Abbortford Lane.

36. Fourth, I have no trouble in accepting that the proposed development addresses the existing character of the area and also the likely future character of the area based on the requirements for the R3 zone in LEP 2012 and DCP 2013.

Conditions

37. The following conditions are in dispute between the parties:

Council’s Infrastructure, Vehicular Crossings & Road Openings

67. The owner/developer must meet the full cost for Council or a Council approved contractor to:

(a)

(b)

(c) Construct kerb and gutter for the full remaining site frontage in Abbotford Lane and Tay lane.

NOTE: The carriageway width in Tay Lane and Abbotford Lane (i.e the distance between kerb alignments) is to be 5.0m. This should be sufficient to provide a 0.8m wide footpath along the Tay and Abortford Lane frontages.

(d)

(e

(f) Construct concrete footpath along the full Tay Lane and Abbotford Lane frontages (approximate width 0.8m).

(g)

86. The operator/caretaker shall maintain a record of all residents with details of their names, length of stay & number of persons in each room. This information shall be stored for a minimum of 12 months on site and made available to Council Officers upon request.

87.All residents in the boarding house accommodation are to sign a lease or licence agreeing to comply with the Plan of Management (PoM) for the boarding house, with the length of the lease to be determined by the management. The minimum length of lease must be at least 3 months.

88. There are to be no emissions or discharges from the premises which give rise to a public nuisance or result in an offence under the Protection of the Environment Operations Act 1997 and Regulations.

98. No parties or amplified music in outdoor communal open space, private open space and drying court zone at any time.

38. The applicant objects to the conditions or part conditions above, being the Note to condition 67(c) and conditions 67(f), 86, 87 and 88 and the words “parties of” in condition 98.

39. I am satisfied that the Note to condition 67(c) and condition 67(f) should remain to provide safety for pedestrians using this narrow section from vehicles. It is likely that some pedestrians would potentially be patrons of the proposed development. Similarly, I am satisfied that condition 86 should remain. I do accept that the requirements of this condition will place any additional burden on the applicant given that the details are likely to be required in any event.

40. I am however satisfied that conditions 86, 88 and the words “parties of” in condition 98 can be deleted. Compliance with the Plan of Management is required as condition of consent (condition 86), any reference to Protection of the Environment Operations Act 1997 and Regulations is simply re stating the law (condition 88) and the words “parties of” in condition 98 do not provide any clear definition for enforcement if there is an alleged breach.

Orders

41. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 335/2016 for the demolition of existing structures and construction of a four storey boarding house at 2-8 Anzac Parade, Kensington is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1 and A.

________________

G Brown

Commissioner of the Court

229136.16 Annexure A (C) (173 KB, pdf)

Decision last updated: 16 May 2017