Sanders v Burwood Council

[2011] NSWLEC 1282

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sanders v Burwood Council [2011] NSWLEC 1282
Hearing dates:	13-14 September 2011
Decision date:	27 September 2011
Jurisdiction:	Class 1
Before:	Morris C
Decision:	The appeal is dismissed.
Catchwords:	DEVELOPMENT APPLICATION; boarding house; compatibility with character of local area.
Legislation Cited:	Burwood Planning Scheme Ordinance; State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Burwood Development Control Plan No 37- Shared Accommodation; Burwood Development Control Plan 22 - Carparking; Burwood Development Control Plan 17 - Waste Management
Category:	Principal judgment
Parties:	Glen Sanders (Applicant) Burwood Council (Respondent)
Representation:	Mr G Newhouse Surry Partners Lawyers (Applicant) Ms N Price Maddocks Lawyers (Respondent) Mr P Clay (Applicant) Mr P Tomasetti SC (Respondent)
File Number(s):	10498 of 2011

Judgment

1. This is an appeal against the refusal by Burwood Council (the council) of Development Application No 66/2011 (the application), which proposed the conversion of an existing dwelling, the construction of a new building and use of those buildings as a boarding house at No 42 Paisley Road, Croydon (the site).

1. The issues in contention are whether the design of the proposed development is compatible with the character of the local area; adequate parking and vehicle manoeuvring areas, access, facilities including waste management facilities have been provided; the proposed plan of management (POM) is satisfactory and if the application is in the public interest.

The site and its context

1. The site is located on the southern side of Paisley Road between Brady and Wallace Streets, is directly opposite the railway line that services the main western and southern lines and approximately midway between Burwood and Croydon railway stations. It has an angled frontage of 15m rear boundary of 12.495m, eastern boundary of 69.7m, western boundary of 78.08m and site area of 922.7sqm.

1. A single storey, brick dwelling house with detached single car garage is currently erected on the site. A driveway, varying in width from 2.38 to 2.43m provides access to the garage along the eastern side of the dwelling. Single storey dwelling houses fronting Paisley Road (Nos 40 and 44), each located approximately 900mm from the common boundary, adjoin the site to the east and west and No 6 Wallace Street shares its rear boundary in the south-western corner. A large shed with high-pitched roof is located to the rear of that property and is located approximately 1m from the common boundary. Two sheds, one on each property, are also located to the rear of Nos 40 and 44 and both are erected to the common boundary with the site.

1. The vicinity of the site is characterised by single dwelling houses, the majority of which are one-storey, brick and tile Californian bungalows.

Background and the proposal

1. The application proposes internal alterations and additions to the rear of the existing dwelling house. The majority of internal walls would be demolished so as to divide the dwelling into a total of seven boarding rooms with a communal lounge area and adjoining dining/kitchen area. One of the boarding rooms, room 5, would be an adaptable room and it and rooms 4 and 7 incorporate private bathroom facilities. Rooms 2, 3 and 6 would share a bathroom with separate WC. A wheelchair lift and common laundry area would be provided at the rear entrance to the existing dwelling within the proposed additions.

1. Two parking spaces with a shared area separating them to facilitate use by persons with a disability are proposed to the south of the existing dwelling and these would be accessed from the existing driveway which would be widened to facilitate the necessary turning area to access those spaces. The existing garage would be demolished and three motorcycle parking spaces provided in that area.

1. A new single storey building would be erected across the southern portion of the site. That building is setback a minimum of 2m from the side and rear boundaries and distances up to 4.122m in some locations with the exception of the proposed communal lounge area that would be erected 50mm from the rear boundary of No 6 Wallace Street in the vicinity of the shed on that building described at [4]. The length of wall in this location is 4.82m.

1. A communal outdoor/BBQ area of 37.7sqm is proposed in the central portion of the proposed building adjoining the western site boundary with a secondary area provided at the rear of the building for use by residents of both buildings. Clothes drying areas would be provided on either side of this building.

1. An attic room is proposed in the centre of the roof of the rear building. A total of nine boarding rooms, all with private bathroom facilities, and a communal lounge area are proposed in the new building. Residents of those rooms would be required to utilise the kitchen and laundry facilities provided in the existing, front building.

The planning controls

1. The site is zoned Residential 2(a) under the Burwood Planning Scheme Ordinance (the BPSO) and is within the Wallace and Brady Streets Heritage Conservation Area. Boarding houses are prohibited in the 2(a) zone.

1. The application was lodged pursuant to the provisions of Division 3 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 as it applied up to 19 May 2011 (the SEPP) however, none of the parties had prepared evidence that the 2(a) zone is an equivalent zone for the purpose of the SEPP. Otherwise the application would be prohibited under the provisions of the BPSO.

1. The provisions of the SEPP would only apply to the site to allow consideration of a development application for a boarding house if the zone had been determined to be an equivalent zone for the purposes of clauses 5 and 26 of the SEPP. It was agreed that the matter proceed without that evidence to allow consideration of the merit evidence and in the event that this is found to be acceptable, further evidence in relation to the application of the SEPP would be heard to allow final determination of the application.

1. The SEPP was amended on 19 May 2011 (the amending SEPP) and repealed some of its provisions and included a number of new clauses including clauses 30A and 54A, the latter being relevant to the application. Clauses 54A(2) and (3) state:

(2) If a development application (an existing application ) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made.

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

1. The effect of the above clause is to allow determination of the application pursuant to the provisions of the SEPP with an additional requirement under the amending SEPP that consent cannot be granted unless the consent authority has taken into consideration whether the design of the development is compatible with the character of the local area.

1. The SEPP also contains a number of standards (clause 29) that cannot be used to refuse consent. These are building height, landscaped area, solar access, private open space, parking and accommodation size. Clause 30 lists a number of standards that must be satisfied before the consent authority can grant consent.

1. Burwood Development Control Plan No 37- Shared Accommodation (DCP37) provides controls for a range of accommodation uses including boarding houses and backpacker accommodation. Development Control Plan 22 - Carparking (DCP22) and Development Control Plan 17 - Waste Management (DCP17) are also relevant to the application to the extent that the controls are not inconsistent with the controls contained within the SEPP.

The issues

1. Apart from whether the site is within an Equivalent zone for the purposes of the SEPP, the issues in the matter are whether:

• the design of the proposed development is compatible with the character of the local area;
• adequate car parking has been provided;
• the application meets the council's planning controls;
• the development would provide a satisfactory standard of residential amenity for occupants;
• adequate provision has been made for waste management;
• the Plan of Management (POM) is satisfactory;
• the application is in the public interest.

1. Contentions in relation to vehicle manoeuvring (on the basis of the two spaces proposed) and disabled access were resolved during the expert's joint conferencing and were not pressed by the council.

The evidence

1. The hearing commenced on site and evidence was heard from a number of persons who had lodged objections to the council. The following matters were raised by those objectors:

• Site is within a heritage conservation area (HCA) and a boarding house would be out of character with the area where there are strict controls on alterations to the structure and use of houses.
• Amenity would be adversely affected and has experienced these effects from illegally operated boarding houses that the council had to close down.
• There are already parking restrictions as a result of commuter parking and with the inadequate parking provided on site there would be an increased demand for parking that would impact on Wallace and Brady Streets. The use of resident parking in Paisley Road would affect the sightlines of residents reversing from the properties, creating a safety risk.
• The design of the proposal is poor, inadequate kitchen and laundry facilities provided for 16 persons.
• Will impact on the amenity of adjoining residents and is out of character with the HCA as it has an excessive footprint, a corrugated iron roof and is built too close to the boundaries.
• Character of the area is detached dwellings with big backyards and this should remain.
• The application is too dense and an overdevelopment of the site.
• Loss of visual and acoustic privacy, will lose the ability to enjoy their backyards. Common areas, driveway and pedestrian access to rear building adjoin neighbouring bedrooms.
• Driveway is too narrow to allow access by emergency vehicles.
• Requires access through adjoining property to maintain building on boundary.
• Will exacerbate current health problems due to noise, loss of privacy and ability to enjoy back yard area which has become a sanctuary.
• Location of garbage stores on boundary will cause odour and noise and affect neighbour's amenity.
• Noise from residents and their visitors using communal areas, being outside smoking will affect amenity.
• Visitor policy is unclear.

1. A view of the site and the adjoining dwelling was conducted. At the completion of the site view, an inspection of the surrounding streets within the HCA was undertaken.

1. Expert acoustic evidence was heard from Mr Koikas and town planning evidence from Mr Fletcher for the applicant and Mr Sue for the council.

1. Joint reports in relation to environment and health were filed by Mr Fletcher for the applicant and Mr Gavrilis for the council and on traffic and parking by Mr Nettle for the applicant and Mr Di Federico for the council. These experts were not required for cross-examination.

Character

1. The town planning experts agree that the local area in which the character test is to be assessed is the Wallace and Brady Street Conservation Area, that the character of the proposed development is acceptable from a heritage and streetscape viewpoint and that the height of the proposal is compatible with the height and scale of buildings in the local area.

1. Clause 30A is specific in that it requires consideration of the design of the development only. Therefore, no consideration of the nature of the use is required.

1. Mr Sue says that the area is dominated with dwelling houses, a rear garden/yard and small outbuildings and that because the application proposes two buildings with what he says is an excessive footprint with no similar rear garden the proposal is not in character. He also considers that the established rear line of dwellings and garden dominate the character and that a metal roof would not be acceptable or in keeping with the area but accepts that this could be replaced with a tile roof.

1. Mr Fletcher says that the existing dwelling house at the front of the property is to be retained and partly restored to remove uncharacteristic alterations. He says that the pattern of development is not as readily observable and therefore perhaps is not as important as the streetscape appearance however, he is of the opinion that the proposed development is consistent with the typical or common pattern of development in the local area. He says that there are numerous examples of properties containing two separate building forms on the one site, comprising predominantly a dwelling house towards the street frontage with large garages or sheds in the rear of properties, many of which are constructed close to rear and/or side boundaries. For this reason, he says that the separation of the boarding house into two distinct building forms is in fact more characteristic of the development pattern in the locality than the alternatives of either a single larger building or a two-storey building form. He also considers the application represents the form of development that may occur in the area as a dual occupancy development and whilst conceding that he was not aware of any such development within the local area and agreed that the size of the proposed building was larger than the majority of outbuildings in the locality, he did not consider that to be an issue and says that the test is about being compatible rather than being the same.

1. Mr Sue disagrees and says that the two buildings have approximately equal floor area and are separated by the proposed carparking and manoeuvring area and this is inconsistent with the surrounding character which is predominately single storey detached dwellings where rear backyards with minimal improvements are dominant. He says that the intensification of the use extends over the whole of the property, which is different from the single family dwelling houses in the locality. In addition, he says that the rear building, with its attic rooms is also inconsistent with the character of the local area and is likely to cause privacy loss to the adjoining property. He concludes that the footprint of the development is excessive and out of character with other building development in the area and that the proposal is likely to alter the existing single dwelling house and garden character and setting in the local area.

Parking

1. Parking is one of the standards that cannot be used to refuse consent and pursuant to clause 29(2)(e) of the SEPP, the standard that applied at the time the application was lodged was:

parking

if not more than:

(i) one parking space is provided for each 10 boarding rooms or part thereof, and

(ii) one parking space is provided for each person employed in connection with the development and who is a resident on site,

1. This standard has changed in the amending SEPP and now reads as follows:

parking if:

(i) in the case of development in an accessible area-at least 0.2 parking spaces are provided for each boarding room, and

(ii) in the case of development not in an accessible area-at least 0.4 parking spaces are provided for each boarding room, and

(iii) in the case of any development-not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site.

1. There are no persons to be employed in connection with the development who will reside at the site and accordingly, the parking standard that applied at the time the application was lodged was two spaces. The amending SEPP would require 3.2 spaces as the experts have agreed the site is in an accessible area for the purposes of parking calculations.

1. DCP 22 provides a parking rate for boarding houses of 1 space/10 beds and 1 space/2 employees.

1. The experts agree that the amending SEPP contains a savings and transitional provision (c54A) and at the time the application was lodged, the two car parking spaces proposed complied with the parking requirements of the SEPP. They also agree that two spaces are required under DCP22.

1. Mr Fletcher says that two spaces are required under the SEPP and DCP22 and that the purpose of clause 54A is to protect existing applications from the retrospective application of more onerous guidelines and controls that were not in place at the time the development application was formulated and designed and to impose a new requirement would defeat the very purpose of that clause. He also notes that, in the event that the accessible parking space is not required, three cars can be parked on the site.

1. Mr Sue says that clause 54A, through the use of the word may provides the consent authority with the discretion to apply either standard and that the higher rate of three spaces should be provided and could be achieved through amending the plans. This would require the reduction in size of the rear building.

Planning controls

1. This contention is primarily focussed on the controls contained within DCP37 and this also incorporates a number of matters considered as internal amenity for occupants of the proposed boarding house. These relate to boundary setbacks, access to and the adequacy of kitchen facilities, proximity of bedrooms to common lounge areas and adequacy of landscaped areas. There is no contention that the standards prescribed in clauses 29 and 30 of the SEPP are not met however, the issue of parking is in dispute and has been discussed above.

1. Mr Sue says that the proposed rear building should be setback from both side and the rear property boundaries a minimum distance of 2m in accordance with clause 3.1.1.3 of DCP37 and that notwithstanding the location of adjoining buildings, the location of the western wall of the living room at the common side boundary is not supported and is likely to set a precedent for similar infringement of the necessary setback from side boundaries and impacts on the amount of landscaping and outdoor recreational area that can be provided to residents. He says that this is required to ensure that any redevelopment of adjoining land is not constrained by that element of the proposed building built to the boundary.

1. Mr Fletcher says that the setback variation occurs at a point on the site where one of the ancillary developments on the adjoining properties is located on a nil boundary setback and the other building is sited close to that boundary. He notes that neither of those buildings contains windows or doors facing the site and he says that the proposal provides an enclosed landscaped courtyard which maximises the privacy for residents of the proposed boarding house and the adjoining neighbours, significantly enhances the size and amenity of the communal lounge area of the rear building and also acts as an acoustic buffer to adjoining properties by attenuating any noise which may occur in this area, thereby safeguarding the amenity of adjoining occupants. He concludes that these benefits justify the variation to the side setback control.

1. The application provides one communal dining/kitchen area adjacent to a communal lounge area at the front of the existing dwelling. That kitchen/dining area would be shared by the residents of both buildings so that persons who occupy the rear dwelling would be required to go outside that building, walk across the driveway/parking area, enter the rear entrance and walk down the hall to the kitchen. This involves a distance of approximately 12m without cover. Mr Gavrilis says that it is necessary to provide cooking facilities within both building so that residents can access those facilities at any time without the need to leave their building. Mr Fletcher says that the application is for one boarding house in two buildings and that the sharing of facilities is a positive element of the proposed design, which would encourage common use of the entire boarding house facility, particularly as common areas are in different parts of the site. Both experts agree that the matter could be addressed through a condition of consent that required some cooking facilities such as a sink, kettle, toaster and microwave oven in the rear building. The applicant advised that these facilities could be provided in the communal lounge area however precise details were not provided and the Court noted that no consideration of a refrigerator had been given.

1. The dimensions of that communal kitchen space are 5.35m x 3.29m or 17.6sqm and the dining area intrudes within the lounge area, that space having an approximate area of 18.6sqm. It was agreed during the hearing that the areas shown on the plan do not reflect the precise areas of those rooms. The communal lounge area proposed within the rear building has an area of 19.5sqm including part of the adjacent hallway.

1. Clause 30 of the SEPP states that consent to a development must not be granted unless the consent authority is satisfied whether or not the development complies with the standards set out in subclauses (1) and (2). Those standards are:

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,

(f) if the boarding house is on land within a zone where residential flat buildings are permissible, no new car parking for lodgers will be provided on the site.(Repealed in the amended SEPP)

(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

1. Where the provisions of DCP37 are not inconsistent with the controls of the SEPP, Mr Tomasetti, for the council, argues that the controls within the DCP should be used to assess the adequacy of those facilities, particularly in determining the tests imposed by clauses 30(1)(a), and (d). The application is for what is termed a Class 3 boarding house by DCP37 and this calls for a commercial grade communal kitchen and dining area of 15sqm plus 1sqm for each additional person above the minimum 12 persons and therefore 19sqm is required. The controls require an indoor communal living area with a minimum 15sqm area with a further 15sqm provided for each additional 12 persons thereafter. Rather than apply the cumulative figure of 30sqm, the council has proportioned the area and says that one living area with a total floor area of 20sqm is required pursuant to the table attached to clause 3.1.1.4 P7, and that this is not met as neither of the living spaces have an area of 20sqm. The applicant says that the combined area of the two communal lounge areas, even if additional area was required to provide kitchen facilities, exceeds 20sqm and this satisfies the control.

1. The amenity of residents is also a contention in relation to the adequacy of the POM. The draft POM submitted by the applicant included some conditions restricting residents when they play music so that it was kept at a level of "background" music and in some instances, doors and windows were required to be closed. The council said that the POM did not adequately assess the findings of Mr Koikas (an acoustic consultant who had prepared an Acoustic Assessment that forms part of the application) and that additional works were required that were not detailed in the application to protect the amenity of adjoining residents and that some of the recommendations made by Mr Koikas resulted in an unsatisfactory internal amenity to residents, particularly the requirement to keep windows closed.

1. Mr Koikas gave evidence in the proceedings and confirmed that he had recommended that all rooms, other than rooms 9 and 16 and the rear common living area and all ensuite bathrooms would need to be mechanically ventilated to achieve the indoor design sound levels to habitable spaces from rail/road traffic noise intrusion and doors kept closed for some of the spaces. In addition, those doors and windows would have to be closed when residents played music, outdoor activities could not occur between 10pm and 7am on most days and 8am on Sundays and public holidays, that any music played outdoors should not exceed nominated noise levels and that a 1.8m high noise barrier to the rear and side boundaries of the site is required. Alternate methods of providing the mechanical ventilation were discussed and Mr Koikas advised that, whilst he is not an expert in the field, he had seen buildings treated in a manner that utilised chimneys and ductwork within the roofspace to address the necessary air intakes rather than the need for individual roof vents. He noted that the applicant had confirmed that there is no proposal to install air conditioning units and accordingly, the issue of plant noise did not need to be included in conditions of any consent granted. He did suggest that the fans in the mechanical ventilation system should be considered and that a condition ensuring that the systems do not exceed the background noise level by more than 5dB(A) should be imposed.

1. Mr Koikas also provided evidence in relation to the noise impacts to the adjoining properties and recommended that the fence height along the western boundary be increased in height to 2.1m, that the windows to the kitchen and western face of the communal living area to the front dwelling be fixed and double glazing of those windows was also proposed. Such conditions were accepted by the applicant.

1. Mr Fletcher said that the amenity of the residents' rooms was important and that it was not unreasonable to close doors and windows to ensure the amenity of neighbours and other residents was protected, particularly in shared accommodation where other resident's needs must be considered.

1. Landscaped area is one of the standards contained in clause 29 of the SEPP which cannot be used to refuse consent. The provisions of clause 29(2)(b) state:

landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,

1. Mr Sue says that the DCP control requiring 45% of the site to be landscaped should be met and that the provisions of the SEPP only apply to the front yard and the streetscape character. Mr Fletcher says that the provisions of the SEPP prevails over the DCP because the two documents are inconsistent in terms of their landscaped area requirements and that as there is no dispute between the parties that the landscaped area provision of the SEPP is met, the development cannot be refused on the grounds of providing inadequate landscaped area.

Waste management

1. The experts agree that this issue has been addressed through the details provided in the amended plans. The location of the proposed bin storage area was said, by the owners of the adjoining property, to have amenity impacts on their property due to the potential for odour and noise.

Public interest

1. Mr Sue says that, because of the resident objection to the application, it is not in the public interest and has the potential to create a precedent for similar boarding house development in the locality. Mr Fletcher says that the matters raised by resident objectors are not matters of public interest and takes the view that the application is in the public interest as it would result in an increase in the available housing stock in the locality and offer an alternate housing type. He says that in the current housing climate, with only low levels of affordable housing available and a very tight rental market, boarding house accommodation will have positive social impacts. Mr Fletcher says that the SEPP recognises the benefits of boarding houses and concludes that any public interest issue is overwhelmingly in favour of the proposal.

Conclusion and findings

1. It is not in dispute that clause 54A(3) is a mandatory consideration. This requires the Court to take into consideration whether the design of the development is compatible with the character of the local area. There is no dispute that the local area is the Wallace and Brady Street HCA however, the council also submitted that the area may extend to the visual catchment despite the railway line being included in this catchment. I concur that the local area is, for the most part, defined by the boundary of the HCA and whilst its boundary may not be definitive in terms of visual catchment, I do not agree that it extends very far beyond that boundary and it does not include the railway line or that area within the visual catchment to the north of the railway line. The local area is restricted to that area to the south of the railway line.

1. Having defined the local area, it is then necessary to determine the character of that area. In this regard, the experts agree that the area is typified by single storey, Californian Bungalow style, brick and tile dwelling houses. These dwellings are sited on large landscaped allotments with driveways to the side providing a separation between the main dwelling building form. Detached garages and sheds are typically found in the rear yards, in the majority of cases towards the rear property boundaries. The scale of these buildings is considerably less than the main building footprint and they appear from the street to be ancillary buildings to the main dwelling house. Gardens are an important part of the character of the area and these areas are within the front building alignment and also the rear backyard spaces. It is also agreed that the dwelling houses are constructed on a consistent building alignment. There is some disagreement as to whether there is also a consistent rear alignment and whilst this is the case for the original built form, many of the buildings have been extended in various forms and extent so that there is no pattern.

1. The consideration required by clause 54A is limited to the design of the development and requires consideration of whether that design is compatible with the character of the local area. I consider that this requires an assessment of the physical aspects of the built form only and does not extent to the issue of the use or nature of the use of that built form.

1. The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are:

22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . 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.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

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?.......

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character........

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials.

1. The experts agree that apart from the tiled roof, the building has similar architectural characteristics to that of the other dwellings in the local area and that the application would not alter the appearance of the main dwelling and will retain its streetscape setting. It is noted that the council's heritage officer has assessed the proposal and makes the following comments:

Although the values of a heritage conservation area would often be incongruous with higher density development, it is considered that the current proposal represents a generally sympathetic approach to accommodating affordable rental housing within the existing heritage precinct.

Her assessment of the application did not object to the use of metal roofing provided its colour would complement the tile roof of the existing structure.

1. Mr Clay, for the applicant, relies on this heritage assessment and says that because there is no suggestion that the building in the backyard or its size is impacting on the heritage significance of the site, it is compatible with the local area. I do not agree that this is the only test of defining the character of the area and whether the design is compatible. Whilst the fact that the site is in a HCA is important, and therefore architectural style and materials are relevant, it is not just a matter of whether the heritage significance of the site is compatible, the test must go further and apply all of the planning principles in Project Venture. This extends to consideration of whether the development will exist in harmony and is different to sameness.

1. I agree that the streetscape is a major element of the character of the area however so too is the response to the other essential elements that make up the character of the local area. These include the siting of buildings, setbacks from side boundaries that determine the rhythm of buildings and how that is reflected in the proposed new built form, landscaping and consistency of scale. In this regard, I prefer the evidence of Mr Sue who says that the size, siting and scale of the proposed building and the relationship of the two buildings is not consistent with the character of the area, nor does it provide a landscaped setting that is consistent with the character of the local area.

1. Having considered the evidence provided and gained an understanding of the local area from the site view undertaken at the beginning of the hearing, I am of the opinion that the design of the application is not compatible with the character of the area as it proposes a building that is of equal size to that of the main building on the site, is not consistent with the rhythm of the built form in the local area and does not reflect the landscaped character of that area. The resultant built form would involve use of a much larger portion of the site than is characterised by other development in the local area. From the evidence of Mr Sue, even if future development of the site were contemplated in the form of a dual occupancy development, the council's controls for landscaped area would restrict that development to a smaller footprint. I note however that the local area does not contain any such development.

1. Having determined that the application is not compatible with the character of the local area, the application must fail, as consent cannot be granted pursuant to the provisions of clause 54A(3) of the amended SEPP.

1. However, if I am wrong, I provide a merit assessment of the remaining contentions on the contingency that the matter should be able to be dealt with between the parties by bringing orders back to me (if I am found to be incorrect and there is a remitter), that being consistent with the objectives of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties.

1. As the parking controls contained within the DCP are consistent with the SEPP, I do not consider that it is appropriate to require the higher parking rate of the amending SEPP. Accordingly, two spaces should be provided on the site.

1. Due to the separation distance between the two buildings, the likely amenity impacts of people moving between those two buildings early and late in the day to access kitchen facilities, I consider that kitchen facilities should be provided in both buildings. I do not agree that the DCP does not allow the quantum of communal living area to be divided between the two buildings and consider this to be no different than what would apply in a two storey building however, do agree that the minimum area should apply. For that reason, I consider that the areas proposed for the communal kitchen/dining/living areas are adequate.

1. I agree with Mr Fletcher, that it would be appropriate to build to the boundary in the location as proposed due to the particular circumstances of the case however regard for the need for access for maintenance purposes would be required. There are sufficient examples of smaller scale developments built to or within close proximity of the side boundaries and therefore I find the scale of the wall proposed in that location is appropriate. With regard to landscaping, I find the standard in clause 29(2)(b) is met as the proposed treatment of the front setback area is compatible with the Paisley Street streetscape.

1. It is apparent that the application did not include sufficient consideration of internal and external amenity impacts, particularly the proximity of living areas to bedrooms of adjoining properties, the need to mechanically ventilate individual and common areas and to impose a highly restricted regime to control noise impacts. The draft POM did not provide sufficient detail to ensure that the internal and external impacts of the application could be appropriately managed and allow for the proper enjoyment of the boarding house by residents.

1. I consider that the issue of waste management is satisfactorily addressed by the experts and no further change would be required.

1. I concur with Mr Fletcher, that the provision of affordable rental housing is in the public interest however, given my finding that the application is not compatible with the character of the area, consent cannot be granted.

1. In view of this finding, there is no need to reopen the case to address the issue of the equivalent zone.

Orders

1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application No 66/2011 for the conversion of an existing dwelling and the construction of a new building for use as a boarding house at No 42 Paisley Road, Croydon is refused consent.

(3)   The Exhibits, other than exhibits A and D are returned.

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Sue Morris

Commissioner of the Court

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Decision last updated: 29 September 2011