Wainidiva Pty Ltd v Waverley Council

[2021] NSWLEC 1615

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wainidiva Pty Ltd v Waverley Council [2021] NSWLEC 1615

Hearing dates:

17 and 18 May 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Directions: see [95].

Catchwords:

DEVELOPMENT APPLICATION – boarding house – whether Applicant’s written request to vary height of buildings development standard is well founded – whether existing dwellings are contributory items – whether existing dwellings can be demolished – whether proposed development is compatible with the character of the local area – whether proposed development is compatible with character of heritage conservation area – whether design of boarding house is acceptable

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4,16, 8.7(1)

Environmental Planning and Assessment Regulation 2000, cll 77, Sch 1

Heritage Act 1977

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 8, 29, 30, 30A

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)

Waverley Local Environment Plan 2015, cll 2.3, 4.3, 5.10

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Coogee Developments Pty Ltd v Randwick City Council [2016] NSWLEC 1011

Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143

SLushY Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1394

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827;

Texts Cited:

Land and Environment Court of NSW, COVID-19 Arrangements Policy, April 2021

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Wainidiva Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Wright (Applicant)
M Staunton (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/43146

Publication restriction:

No

Judgment

1. COMMISSIONER: Wainidiva Pty Ltd (the Applicant) has appealed the deemed refusal by Waverley Council (the Respondent) of its development application no. DA-426/2019 seeking consent for the demolition of three dwellings and the construction of a boarding house containing 37 rooms with a basement containing 10 at grade parking spaces, 8 parking platforms in a stacker and a space for a small garbage collection vehicle and its loading and unloading (the Proposed Development”) at 22-26 Edward Street, Bondi, also identified as lots 29, 30 and 31 in DP 4941 (the Subject Site).

2. The three dwellings currently situated on the Subject Site are intact inter-war bungalows each situated on its own original lot and located within a heritage conservation area (HCA) known as the Imperial Avenue Conservation Area. The HCA is listed under Part 2 of Schedule 5 of Waverley Local Environmental Plan 2012 (WLEP), and is mapped in the Heritage Map within WLEP, as required under the definition of a ‘heritage conservation area’ under the definitions in WLEP. The area of the HCA, outlined in red, is as illustrated in the following extract from the WLEP heritage map, and in which the three constituent lots forming the Subject Site are marked with a ‘x’.

3. As can be discerned from the HCA map, various buildings within Imperial Avenue and Castlefield Street are listed within Part 1 of Schedule 5 of WLEP as heritage items. The three dwellings on the Subject Site are not listed as heritage items, although item I27 at 25 Castlefield Street backs on to the rear of the lot at 26 Edward Street.

4. Each of the three separate parcels constituting the Subject Site has an area of approximately 500m². The total area of the Subject Site is 1,508m².

5. The Applicant’s development application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

6. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The hearing is conducted pursuant to s 34C of the Land and Environment Court Act 1979 (the LEC Act),

7. The Subject Site is zoned R3 Medium Density Residential under the provisions of cl 2.3 of WLEP and the Proposed Development is permissible with consent in that zone.

8. Due to the COVID-19 pandemic, and consistent with the Court’s COVID-19 Arrangements Policy an inspection of the Subject Site and several properties within its vicinity was undertaken at the commencement of the hearing. The balance of the hearing was conducted by Microsoft Teams, and this included receipt of oral submissions from various objectors to the Proposed Development.

9. At the commencement of the hearing the Applicant sought leave to rely on amended plans that were said to be responsive to recommendations made by the Parties’ expert planners in their joint expert report, and leave was granted without objection.

10. The Applicant advised that it did not oppose an order requiring it to pay the Respondent’s costs thrown away in dealing the amended plans, as agreed or assessed, pursuant to s 8.15(3) of the EP&A Act.

The Proposed Development

11. The Respondent accepts that the Proposed Development is for the purpose of a boarding house and agrees that, notwithstanding concerns of local residents to the contrary, the Court would properly and correctly assume that the Proposed Development will be lawfully used for that purpose.

12. The Proposed Development (as amended) is for a boarding house containing 37 rooms, including a manager’s room, over one level of basement car parking that would also accommodate parking for 19 cars, including eight (8) that are proposed to be housed in a mechanical car stacker. The Proposed Development also provides parking for seven (7) motorbikes and 25 bikes.

13. The built form of the Proposed Development provides accommodation in three wings, and the Applicant submits that the configuration of these wings, identified as wings A, B and C, is responsive to, and reflects, the existing subdivision pattern of the Subject Site and the layout of its three constituent lots.

14. The Parties agree that:

1. the Proposed Development complies with each of the non-discretionary development standards set out in cl 30 of SEPP ARH (see below at [26]).

2. under the provisions of cl 29(1)(c)(i) of SEPP ARH and cl 4.4 of WLEP the floor space ratio (FSR) applicable to a boarding house development on the Subject Site is 1.1:1, and the FSR of the Proposed Development is 0.69:1 or 62.7% of the applicable FSR standard.

15. The height of the Proposed Development exceeds the applicable height of buildings (HoB) development standard of 9.5m applicable to development on the Subject Site under cl 4.3 of WLEP. The proposed maximum height of the Applicant’s boarding house is 10.5m representing a 1m non-compliance at the north-eastern corner of the Proposed Development at its frontage with Edward Street.

16. The Applicant has provided a written request to vary the HoB development standard applicable to the Subject Site, pursuant to the provisions of cl 4.6 of WLEP.

Notifications and objector submissions

17. The Proposed Development was originally placed on public exhibition on 8 January 2020 for two weeks, and then again for a further 21 days from 13 February, pursuant to the provisions of cl 77 and Schedule 1 of the Environmental Planning and Assessment Regulation 2000 and Waverley Development Control Plan 2012 (Amendment No. 6) (WDCP). A total of 96 public submissions were received in response to that notification.

18. The Applicant’s amended development application was also notified between 23 March and 7 April 2021. A further 45 submissions were received in response to that notification.

19. At the commencement of the hearing the Court received oral submissions from the following objectors to the development:

1. Ms Antonia Murphy, a resident of Denham Street, Bondi;

2. Mr Bevan Wilson, also a resident of Denham Street, Bondi;

3. Ms Katrina Henry Tibbetts, a resident of Castlefield Street, Bondi;

4. Mr Igor Belin, of Edwards St, Bondi;

5. Mr Paul Galea, a resident of Castlefield Street, Bondi; and

6. Ms Tina Matthews, a resident of Castlefield Street, Bondi.

20. The submissions identified the following concerns of objectors in relation to the Proposed Development:

1. potential impacts on the character of the local area and on the Imperial Avenue HCA;

2. potential impacts on trees and vegetation associated with the Subject Site;

3. potential impacts on amenity of the local area, including in relation to the green outlook currently enjoyed by neighbours of the Subject Site and to its rear;

4. potential overlooking of adjacent properties from the Proposed Development;

5. potential parking and traffic impacts;

6. potential impacts associated with excavation proposed by the Applicant and the proximity of excavation to the side boundaries of the Subject Site;

7. whether the Proposed Development would be used for the boarding purpose stated by the Applicant or would rather be used for some other form of short term rental accommodation; and

8. potential impacts of the Proposed Development on the physical and mental health of neighbours.

Statutory context

Environmental Planning and Assessment Act 1979

21. The objects of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

State Environmental Planning Policy (Affordable Rental Housing) 2009

22. The proposed development is for construction of a boarding house and so requires consideration under Part 2 Division 3 of SEPP ARH.

23. The aims of SEPP ARH are:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

24. Under cl 8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevail to the extent of the inconsistency.

25. Clause 29 of SEPP ARH provides standards that cannot be used to refuse consent for developments the subject of the SEPP, as follows:

29 Standards that cannot be used to refuse consent

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

(b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,

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

(c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(d) private open space if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(e) 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,

(f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:

(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or

(ii) 16 square metres in any other case.

(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.

(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

26. SEPP ARH cl 30 provides standards for boarding houses, as follows:

(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:

(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) (Repealed)

(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.

(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.

27. SEPP ARH cl 30A requires of that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Waverley Local Environmental Plan 2012

28. The following provisions of WLEP are of relevance in this appeal:

1. Clause 2.3 concerning zone objectives and land use table, and in relation to which:

1. subcl 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

2. the Subject Site is zoned R3 Medium Density Residential, the objectives of which are:

To provide for the housing needs of the community within a medium density residential environment.

To provide a variety of housing types within a medium density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To maximise public transport patronage and encourage walking and cycling.

2. Clause 4.3 concerning the height of buildings, and which provides that development on the Subject Site is subject to a maximum height of 9.5m and which has the following objectives:

(a)  to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

(b)  to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d)  to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.

3. Clause 4.6 which provides for exceptions to development standards and which relevantly concerning this appeal requires as follows:

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

4. Clause 5.10 concerning heritage conservation, and which relevantly provides as follows:

(1) Objectives

The objectives of this clause are as follows—

(a) to conserve the environmental heritage of Waverley,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent

Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

…..

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment

The consent authority may, before granting consent to any development—

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

Waverley Development Control Plan

29. The Proposed Development is subject to the provisions of WDCP, and in particular:

1. Part B1 concerning waste, which under the provisions of its section 1.4.2.1(c) requires that multi-residential and mixed use development with more than 20 units must accommodate an on-site collection service.

2. Part B9 concerning heritage, which:

1. has the following objectives of relevance in this appeal:

“(e) To ensure that development enhances the character and significance of any heritage item, conservation area, artefact or place.

(f) To ensure development reflects and promotes an understanding and appreciation of heritage significance.

(g) To promote sustainable development through the retention and repurposing of existing building stock.”

2. defines heritage conservation areas within its section 9.1.2 as follows:

“A Heritage Conservation Area contains a group of buildings where historical origins and relationships between various elements create a distinctive character of heritage. The heritage significance may include subdivision and street pattern, form and scale, the consistency of building materials or the common age of the building stock.

Heritage Conservation Areas often contain both Contributory Items and Non Contributory Items. Heritage Conservation Areas respond to natural features including topography, vegetation and views. Such features are considered contributory to the cultural significance of the Heritage Conservation Area and are acknowledged as contributory items. Note, definitions are included at the end of this DCP.

Council encourages the alteration and or replacement of Non Contributory Items in a manner enhancing the defined heritage significance of the Conservation Area. The existence of non-contributory items in a Conservation Area is not considered a basis for the introduction of development which is not cohesive with the identified significance of the Conservation Area.

All new development in a heritage conservation area is treated as ‘infill development.’ Details of Waverley’s Heritage Conservation Areas are provided on Council’s website.”

3. defines contributory items within the definitions the end of this DCP as being:

“items that make an important and significant contribution to the character of a heritage conservation area. This not only includes buildings, but natural features such as topography, vegetation, and views as well”.

4. states under section 9.2 that demolition requires Council consent and supporting documentation in accordance with the Heritage Act 1977, and provides the following objectives and controls in relation to the demolition of structures within a conservation area:

“Objectives

(a) To ensure both listed items and buildings which contribute to the significance and character of Heritage Conservation Areas are conserved.

(b) To discourage demolition so as to preserve the value of heritage items and Heritage Conservation Areas for the local community.

(c) That replacement development enhances the character of the conservation area

Controls

(a) Unless identified alternately, heritage listing of buildings encompasses the whole building and site including outbuildings and boundary enclosures.

(b) Demolition of a heritage item or contributory building in a conservation area will generally not be supported, unless there are overriding reasons such as extreme structural damage.

(c) Demolition of a non-contributory building that detracts from a Conservation Area and replacement with an appropriately designed infill building is generally supported provided the proposed infill development is consistent with the objectives and controls outlined in this Part.

(d) Excavation beneath and/or adjacent to heritage items and/or buildings in heritage conservation areas will only be permitted if it is supported by both a Geotechnical Engineering report and a Structural Engineering report.

(e) Excavation will not be permitted if:

(i) It will occur under common walls and footings to common walls, or freestanding boundary walls, or under any other part of adjoining land; or

(ii) It will occur under or forward of the front facade.”

5. includes under section 9.4, concerning Heritage Conservation Areas, the following objectives and controls assessed by the Parties’ heritage experts in their joint expert report to be of relevance in this appeal:

“Objectives

(a) To promote high quality design that respects and enhances the heritage significance of the conservation area.

(b) To ensure that development respects the original built form, architectural style and character of the conservation area.

…

Controls

…

(d) Contemporary design is encouraged and is to incorporate the elements and features as identified in the Context and Streetscape Analysis.

(e) New development is not to be designed as a copy or replica of other buildings in the area.

(f) Development must not include garages or car access to the front elevation of the development where these are not characteristic of the area.

…

(h) Building services including air conditioning units, satellite dishes and aerials are not to be visible from the streetscape.”

Contentions

30. The Applicant submits that its amended plans had resolved a number of the Respondent’s original contentions, and that its Proposed Development, as amended:

1. provided a front setback that approximates the building line of the existing cottages on the Subject Site and that would be landscaped to ensure that streetscape character is maintained and enhanced;

2. provided setbacks from the side and rear boundaries that satisfied the requirements of the Apartment Design Guide (ADG) and which exceeded the relevant controls within WDCP;

3. did not give rise to any view impact upon, or overshadowing of, any adjoining property and maintained view corridors from properties upslope to the south;

4. proposed excavation of the Subject Site that would ensure that the building would sit within the fall of the Subject Site from south to north;

5. would be operated in accordance with a Plan of Management that will be enforceable by conditions of consent;

6. included a live-in on-site manager responsible for implementing the Plan of Management, who would be accommodated in a manager’s room, the location of which had been amended to a location that was acceptable to the Respondent and which would, inter alia, facilitate improved supervision of communal areas by the manager;

7. had provided for deletion of a void area that had been the subject of a contention by the Respondent; and

8. provided parking spaces for motor bikes and bicycles that is in excess of the required number of spaces, and which would also encourage the use of alternative means of transport to motor vehicles.

31. The Applicant’s Proposed Development is not compliant with the HoB development standard applicable to development on the Subject Site under the provisions of cl 4.3 of WLEP. The Applicant has provided a written request pursuant to cl 4.6 of WLEP seeking to vary the HoB development standard.

32. While the Respondent has not raised a formal contention in relation to the Applicant’s written request, this is a jurisdictional prerequisite that I will consider first before considering the merits contentions in the appeal.

33. The remaining merits contentions for resolution in this appeal concern the following matters:

1. the acceptability of the Applicant’s proposed demolition of the three intact inter-war bungalows including its impact on the heritage significance of the HCA;

2. the acceptability of the Applicant’s proposed boarding house in relation to the heritage significance of the HCA, in relation to which I will also consider whether the character of the Proposed Development is compatible with the character of the locality, consideration of which is required under cl 30A of SEPP ARH;

3. the general design/town planning concerns identified by the Respondent’s in the contentions, including:

1. a proposed void area on Level 01 the design of which the Applicant says should not be amended;

2. the Applicant’s proposed materials and finishes;

3. the proposed location of an electrical substation within the proposed Development;

4. potential acoustic impacts;

5. potential visual privacy impacts;

6. potential solar access impacts;

7. the Applicant’s proposals for excavation of the Subject Site;

8. the size of the manager’s room;

9. the Applicant’s proposals for waste collection;

10. the Applicant’s proposed parking arrangement within the Proposed Development; and

11. non-compliance with cl 29(2)(b) of SEPP ARH (landscaped area) The Respondent maintains that the non-compliance with cl 29(2)(b) is a reason for refusal.

34. I will first consider the Applicant’s written request to vary the HoB development standard applicable to development on the Subject Site, and will then address the remaining contentions identified above (at [33]) ad seriatim.

35. These contentions were the subject of evidence from the following experts, who had prepared joint expert reports and who also provided oral evidence during the hearing to assist the Court in its considerations:

1. the heritage experts, Mr Stephen Davies, for the Applicant, and Mr Paul Davies, for the Respondent;

2. the expert town planners, Mr Andrew Darroch, for the Applicant, and Mr Mark Adamson, for the Respondent.

Is the Applicant’s written request to vary the HoB development standard well founded?

36. The Applicant’s Proposed Development has a maximum height of 10.5m and exceeds the 9.5m height of buildings (HoB) development standard applicable to development on the Subject Site under the provision of cl 4.3 of WLEP.

37. The Applicant has prepared a written request subject to the provisions of cl 4.6 of WLEP seeking to vary the HoB development standard in relation to the Proposed Development.

38. The Respondent raises no contention in relation to the Applicant’s proposed non-compliance with the HoB development standard, and together with the Applicant submits, supported by the evidence of the Parties’ expert planners, that the Applicant’s written request to vary that standard is well founded.

39. The Applicant’s written request to vary the HoB development standard in cl 4.3 of WLEP was prepared by its expert planner, Mr Andrew Darroch, and notes that the non-compliance relates to the leading parapet edges of wings A, B and C within the proposed Development as illustrated in the following figure extracted from the cl 4.6 written request.

40. The cl 4.6 written request notes that the non-compliances with the HoB development standard arises as a consequence of the topography of the Subject Site and is required in order to maintain the internal amenity of the boarding house though not requiring reduced floor to ceiling heights and reduced parapet heights.

41. The Applicant’s cl 4.6 written request notes that the HoB non-compliance does not give rise to any significant impacts in relation to solar access, privacy, views or bulk and scale as the development presents to the street.

42. Under cl 4.6 (3) of LEP 2013, a consent authority must not grant consent unless the consent authority has considered a written request from the applicant seeking to justify the contravention of the development standard by demonstrating that:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. there are sufficient environmental planning grounds to justify contravening the standard.

43. In addition, under cl 4.6(4), the consent authority must also be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.

44. In assessing whether compliance with the standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 in which five pathways were identified that could be applied to establish whether compliance is unreasonable or unnecessary. These are to establish that compliance with the development standard is unreasonable or unnecessary because:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

4. the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land” and that “compliance with the standard in that case would also be unreasonable or unnecessary.

45. The Applicant’s cl 4.6 written requests relies on the first of these pathways, and states objectives (a) and (d) of the HoB development standard in cl 4.3 of WLEP (see above at [28(2)]), which are the relevant objectives in relation to the Proposed Development, are achieved notwithstanding non-compliance with the standard because:

1. the proposed non-compliance in height does not adversely impact on the environmental amenity of neighbouring properties and public spaces, and this is confirmed within the Applicant’s plans and accompanying documentation; and

2. the Proposed Development is compatible with the height, bulk and scale of the desired future character of the locality and would positively complement and contribute to the physical definition of the street network and public space because:

1. it reflects recent approvals under current controls that have been approved and constructed in the locality; and

2. it is consistent with “proximate approvals” that are indicators of the desired future character of the area and which are reflected in the stepped three storey built form of the Proposed Development that follows the topography of the Subject Site.

46. The written request to vary the HoB development standard also states that:

1. there are sufficient environmental planning grounds to justify contravening the standard because:

1. the variation is required in order to respond to the sloping topography of the Subject Site; and

2. the non-compliance avoids impacts to neighbouring properties in relation to view and overlooking impacts that would result from a compliant built form that would place additional bulk of the built form towards the southern, rear portion of the Subject Site.

2. the Proposed Development, including the proposed non-compliance with the HoB development standard, is consistent with the first and second objectives of the R3 zoning of the Subject Site (see above at [28(1)(b)]), which are the objectives of relevance to the Proposed Development, because:

1. it provides for the housing needs of the community within a medium density residential environment; and

2. it will add to the variety of housing types within the medium density residential environment.

47. Having reviewed the Applicant’s cl 4.6 written request, and consistent with the guidance provided by Preston CJ in Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, I am satisfied that:

1. as required under cl 4.6(3)(a) of WLEP, compliance with the HoB development standard is unreasonable or unnecessary in the circumstances of the Proposed Development, because the Proposed Development achieves the objectives of the development standard notwithstanding non-compliance for the reasons provided by the Applicant (above at [45]), which I adopt;

2. as required under cl 4.6(3)(b) of WLEP, there are sufficient environmental planning grounds to justify contravening the standard for reasons provided by the Applicant (see above at [46(1)]) which:

1. are specific to the circumstances of the Subject Site and the aspect of the development that contravenes the standard; and

2. are consistent the object at cl 1.3(g) of the EP&A Act which seek to promote good design and amenity of the built environment;

3. as required under cl 4.6(4)(a):

1. the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of WLEP; and

2. the Proposed Development, including the Applicant’s proposed non-compliance with the HoB development standard:

1. is consistent with the objectives of the HoB development standard in cl 4.3 of WLEP, because, as concluded above (at [(1)]), the Proposed Development achieves the objectives of that standard; and

2. is consistent with the objectives of the R3 zoning of the Subject Site, for reasons provided above (at [46(2)]) by the Applicant, which I adopt.

48. Consequently, for reasons provided above (at [47]), I am satisfied that the Applicant’s cl 4.6 written request seeking to vary the HoB development standard applicable to the Subject Site under the provisions of cl 4.3 of WLEP should be upheld.

Is Demolition of the Existing Dwellings on the Subject Site Acceptable?

49. The Applicant has proposed that the three existing dwellings on the Subject Site should be demolished prior to construction of its proposed boarding house.

50. Clause 5.10 of WLEP (see above at [28(4)]) requires:

1. under subcl 5.10(2) that development consent is required for demolition of a building within a heritage conservation area;

2. under subcl 5.10(4) that the consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned; and

3. under subcl 5.10(5) the consent authority may, before granting consent to any development on land that is within a heritage conservation area, require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

51. Also, Part B9 section 9.2 WDCP provides objectives and controls in relation to the demolition of buildings within a HCA (see above at [29(2)(d)]), including:

1. the following objectives:

“(a) To ensure both listed items and buildings which contribute to the significance and character of Heritage Conservation Areas are conserved.

(b) To discourage demolition so as to preserve the value of heritage items and Heritage Conservation Areas for the local community.

(c) That replacement development enhances the character of the conservation area”

2. and, inter alia, controls stating that:

1. demolition of a heritage item or contributory building in a conservation area will generally not be supported, unless there are overriding reasons such as extreme structural damage; and

2. demolition of a non-contributory building that detracts from a Conservation Area and replacement with an appropriately designed infill building is generally supported provided the proposed infill development is consistent with the objectives and controls outlined in this Part;

3. reliance on the dictionary of WDCP which defines contributory buildings as “items that make an important and significant contribution to the character of a heritage conservation area. This not only includes buildings, but natural features such as topography, vegetation, and views as well.

52. The Applicant has provided a heritage impact statement (HIS) prepared by Urbis, and to which Mr Stephen Davies contributed, in response to the provisions of subcl 5.10(5) of WLEP, that assessed the impact of the Proposed Development on the heritage significance of the HCA.

53. The Applicant’s HIS concluded that:

1. cumulative alterations and additions over the years since their construction have compromised each of the dwellings on the Subject Site;

2. although there are remnant architectural features within each dwelling that are representative of their respective construction period these do not provide a defining contribution to the HCA or the broader locality of Waverley;

3. the dwellings on the Subject Site, which are attributed to the early 1920s, are not considered to be rare in the local context or more generally across Sydney, and the dwellings are not exemplar representations of that construction type; and

4. the Subject Site does not meet the requisite standard of significance for heritage listing at a local or state level.

54. The significance of the existing dwellings on the Subject Site, and consideration of whether demolition of those buildings was acceptable, was also the subject of oral evidence from the Parties’ heritage experts during the hearing.

55. While the experts agreed in relation to the broad character of the HCA, and on the fact that the dwellings on the Subject Site are not heritage items, they differed in relation to the significance of the three dwellings, and whether they are contributory buildings, as follows:

1. Mr Stephen Davies stated that, in his opinion:

1. when one walks through the HCA it is possible to identify those buildings that are contributory;

2. the three inter-war dwellings on the Subject Site are not significant and are not contributory items to the HCA; and

3. the HCA has been subject to change over the years including through the demolition of dwellings, and in his opinion demolition of the three dwellings on the Subject Site was acceptable;

2. Mr Paul Davies stated that, in his opinion, that:

1. the subdivision pattern of the constituent lots within the Subject Site remained discernible;

2. the three constituent lots were three of the earliest lots taken up in the HCA, and the three dwellings on those lots represent three of the most intact items in the HCA from the period 1920-21, and the dwellings are typical of 1920s buildings; and

3. the buildings could in his view, be restored and are characteristic of the HCA.

56. In response to questions from the Applicant, Mr Paul Davies said that he agreed that:

1. the focus of the HCA is on Federation buildings which was a loose term encompassing buildings representative of Edwardian, inter-war and post-war periods;

2. residential flat buildings are present in the HCA and form part of the character of the area;

3. it is difficult to distinguish the HCA on the ground, but noted that this is not unusual;

4. the dwellings on the Subject Site have been altered but added that the changes were superficial and the internal layout of the buildings had been retained; and

5. if the buildings were to be retained they would require remedial works.

57. In response to questions from the Respondent, Mr Stephen Davies agreed that:

1. clause 5.10 of WLEP required that the heritage significance of the HCA should be identified and this required a consideration of the historical, architectural, natural (including landscaping) and aesthetic values of the site;

2. the HCA is not limited to the properties in Imperial Avenue;

3. the three dwellings on the Subject Site:

1. did form a grouping within the streetscape between Denham Street and Castlefield Street;

2. are identifiable as inter-war dwellings;

3. are amongst the least altered of the inter-war dwellings in the HCA;

4. are intact and could be restored; and

5. are not neutral and do contribute to the HCA.

58. However, Mr Stephen Davies also noted that:

1. notwithstanding that the dwellings do contribute to the HCA, in his opinion they did not make a significant contribution to the HCA;

2. if the building is were demolished the heritage values of the HCA would not be disrupted; and

3. he was not of the opinion that the three buildings made a strong contribution to the identification of the boundaries of the HCA.

59. Having considered the evidence of the heritage experts, I prefer the evidence of Mr Stephen Davies because:

1. the definition in WDCP of a contributory item within the HCA is that the item should make an “important and significant” contribution to the character of a heritage conservation area;

2. I accept that it is not sufficient for a building to simply make a contribution to the character of a heritage conservation area for it to be recognised as a contributory building. Rather the contribution made by a building must also be “important and significant” for it to be recognised as contributory;

3. having undertaken a view of the Subject Site, and of the HCA itself, I concur with Mr Stephen Davies’ assessment that while the dwellings on the Subject Site make a contribution to the HCA, they do not make an “important and significant” contribution to the character of the HCA, and so should they not be considered to be contributory items within the HCA;

4. in my assessment, consistent with the evidence of Mr Stephen Davies, and as assessed within the HIS prepared by Urbis, the dwellings on the Subject Site have been altered and are in a poor state of repair. Whilst I accept that they could be restored, I accept that this would require significant remedial works. Given that they do not, in my assessment, make an “important and significant” contribution to the character of HCA, I am not persuaded that I should require their retention and restoration and in doing so refuse the application;

5. I agree with Mr Stephen Davies that the principal heritage value of the lots constituting the Subject Site:

1. is their configuration which reflects the initial subdivision pattern within the area; and

2. is not the dwellings on the Subject Site which are of poor quality and the restoration of which is not warranted.

60. I also agree with the conclusions within the Applicant’s HIS (see above at [53(1)] and [53(2)]), that:

1. cumulative alterations and additions over the years have compromised each of the three dwelling on the Subject Site; and

2. although there are a remnant architectural features of the construction period retained within each dwelling these do not provide a defining contribution to the HCA.

61. In summary, and based on the above considerations, it is my assessment that:

1. consistent with the agreed position of the heritage experts, the dwellings on the Subject Site are not heritage items listed under schedule 5 of WDCP;

2. the dwellings are not contributory items as defined within WDCP as they do not make an important or significant contribution to the character of the HCA; and

3. as the dwellings are not assessed to be contributory items within the HCA, and as the definition of contributory items notes that these includes buildings as well as other features, I conclude that they are also not contributory buildings as referred to in the controls of Part 9.2 of WDCP.

62. Further, in relation to the controls concerning demolition in Part B9 section 9.2, and having considered the evidence of the experts and the submissions of the Parties, I have concluded that:

1. while control (b) discourages the demolition of a heritage item or contributory building, the dwellings on the Subject Site are neither a heritage item or a contributory building; and

2. while control (c) facilitates demolition of a non-contributory building that detract from a conservation area, the dwellings on the Subject Site while non-contributory, also do not, in my assessment, detract from the HCA.

63. I have also considered the proposed demolition of dwellings on the Subject Site in relation to the objectives of Part B9 section 9.2 of WDCP, and I have concluded that:

1. the proposed development is consistent with objective (a) of that part because, as identified above (at [59(3)]), notwithstanding their consistency with the character of the HCA, the dwellings on the Subject Site do not contribute to the significance of the HCA and are not, in my assessment, contributory buildings as defined within WDCP; and

2. the demolition of the dwellings would not detract from the value of the HCA, consistent with the evidence of Dr Stephen Davies (see above at [55(1)(c)]), and the HIS prepared by Urbis (see above at [53]), and so would achieve objective (b).

64. Part B9 section 9.2 of WDCP also seeks that any replacement development should enhance the character of the conservation area, and as noted below (at [78(3)(c)] I have also concluded that the Proposed Development is acceptable in HCA and consequently, I am satisfied that it would enhance the character of the HCA, for reasons provided below (at [78(2)]).

65. On the basis of my conclusions above (at [62] to [64]), I satisfied that the proposed demolition of the three dwellings on the Subject Site is acceptable having had regard to the provisions of section 9.2 of Part B9 in WDCP.

66. Finally, in relation to the provisions of cl 5.10(4) of WLEP (see above at [28(4)]), having considered the effect of the proposed development on the heritage significance of the dwellings and the HCA, I am satisfied that the Applicant’s proposed demolition of the three dwellings on the Subject Site is acceptable and consent for that demolition can be granted.

Is the Proposed Building Appropriate in the HCA?

67. Development on the Subject Site and within the HCA is subject to the provisions of SEPP ARH and WLEP.

68. The Applicant’s Proposed Development is for a boarding house pursuant to the provisions of SEPP ARH, and a boarding house is a permissible use of the Subject Site under its R3 Medium Density Residential zoning.

69. Clause 29 of SEPP ARH (see above at [25]) provides standards that cannot be used to refuse consent, and the proposed Development complies with each of those standards with the exception of the height standard. In relation to height I have considered the Applicant’s written request under cl 4.6 of WLEP to vary the HoB standard in cl 4.3 of WLEP and I have concluded that that request should be upheld.

70. Clause 30 of SEPP ARH (see above at [26]) provides standards for boarding houses, and requires that a consent authority, or the Court on appeal, must not consent to development unless it is satisfied that each of those standards is satisfied and the Proposed Development complies with each of the standards.

71. Clause 30A of SEPP ARH requires that a consent authority, or the Court on appeal, must not consent to a boarding house development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

72. Clause 5.10(2)(e) of WLEP requires that development consent is required for erecting a building on land that is within a heritage conservation area, and cl 5.10(4) requires that the consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area concerned.

73. The Proposed Development is also subject to the provisions of Part B9 section 9.4 of WDCP (see above at [29(2)(e)])which provides controls in relation to development in heritage conservation areas which states that:

1. contemporary design is encouraged and is to incorporate the elements and features as identified in the Context and Streetscape Analysis;

2. new development is not to be designed as a copy or replica of other buildings in the area;

3. development must not include garages or car access to the front elevation of the development where these are not characteristic of the area; and

4. building services including air conditioning units, satellite dishes and aerials are not to be visible from the streetscape.

74. The Applicant’s HIS, prepared in fulfilment of the provisions of cl 5.10(5) of WLEP, and tendered as evidence at the hearing, had concluded that the Proposed Development would not generate any adverse impacts on the heritage significance, or the established character, of the HCA or on the heritage listed property at 25 Castlefield Street for the following reasons:

1. the dwellings do not meet the threshold for the requisite standard of significance for heritage listing and they do not provide a defining contribution to the heritage significance of the HCA. Consequently, the retention and conservation of these dwellings and ancillary structures is not warranted on heritage grounds;

2. the design of the Proposed Development is compatible with the established streetscape character of the southern alignment of Edward Street;

3. the bulk, scale and form of the Proposed Development responds to the surrounding built form and streetscape character; and

4. the proposed development retains the integrity and character of the HCA and heritage listed item at 25 Castlefield Street, and there will be no adverse impacts to the heritage significance of these items.

75. In closing, the Applicant submitted that:

1. the Proposed Development would be located between two residential flat buildings which the heritage experts agreed form part of the character of the HCA;

2. the proposed Development would sit more comfortably with the scale of the adjoining RFBs than the existing cottages and would create a harmonious and consistent streetscape;

3. the building form of the Proposed Development respects the form and layout of the lots which is positive – three wings reflecting the layout of the constituent lots;

4. the Proposed Development would not give rise to any view loss impacts or overshadowing of adjacent properties;

5. the side and rear setbacks of the Proposed Development are compliant with the provisions of both WDCP and the ADG; and

6. the contemporary design of the proposed Development does not seek to replicate any existing development, and is well-modulated.

76. However, the Respondent said that:

1. the provisions of cl 5.10 of WLEP (see above at [28(4)]) are central to an assessment of whether or not the design of the Proposed Development is appropriate to the HCA;

2. relying on the evidence of Mr Paul Davies, including that within the joint report of the heritage experts, the design of the proposed Development is not consistent with the identified values of the HCA; and

3. considerations of compliance with the ADG were not relevant to the Proposed Development.

77. The Parties’ heritage experts had provided within their joint expert report their assessment of the Proposed Development against the relevant objectives and controls in Part B section 9.4 of WDCP (see above at [29(2)(e)]), and in relation to this:

1. they agreed that the design of the Proposed Development was of high quality, but differed as to whether the design respected and enhanced the heritage significance of the HCA, as required under objective (a) of section 9.4, as follows:

1. Mr Stephen Davies did not state in the joint report in relation to whether the design respected and enhanced the heritage significance of the HCA;

2. Mr Paul Davies opined that the proposed development did not relate to the heritage significance of the HCA;

2. they differed in their view as to whether the Proposed Development respected the original built form, architectural style and character of the HCA, as required under objective (b) of section 9.4, as follows:

1. Mr Stephen Davies said that the objective was achieved as the subdivision pattern of the lots constituting the Subject Site was recognised in the three separate wings of the Proposed Development, and the development provided an interpretation of the three dwellings on the lots;

2. Mr Paul Davies said that while the three wings were responsive to the three lots, the development would be a single development and it did not retain the original lot pattern within the Subject Site;

3. they agreed that the Proposed Development was of contemporary design, but differed in relation to its responsiveness to its context and streetscape as follows:

1. Mr Stephen Davies said that the design had been carefully modulated for the Subject Site, referenced the subdivision pattern and its three constituent lots, and was well resolved in terms of responsiveness to this control; and

2. Mr Paul Davies said that while the Proposed Development did reference the adjoining developments to the Subject Site, as required from a planning perspective, this was not the response required in the HCA.

4. they agreed that the Proposed Development was designed such that it did not copy or replicate other buildings in the area;

5. they agreed that car access is a characteristic of the area, and that a single access to the Proposed Development was appropriate; and

4. they agreed that the treatment of building services should be considered in relation to proposed conditions of consent should the Proposed Development be approved.

78. Having considered the submissions of the Parties and the evidence of the heritage experts, I have concluded that:

1. the Parties’ heritage experts are largely agreed in relation to the responsiveness of the Proposed Development’s deign and built form in relation to the provisions of Part B section 9.4 of WDCP (see above at [29(2)(e)]);

2. in relation to their areas of difference, I prefer the evidence of Mr Stephen Davies concerning the responsiveness of the Proposed Development to the values of the HCA because:

1. I agree with him that the three wing design of the Proposed Development is responsive to the layout of the three constituent lots which is the aspect of the Subject Site that contributes most to the values of the HCA;

2. there is, in my assessment, no requirement that a development on the Subject Site should provide for three separate buildings on the Subject Site;

3. the multi-storey form of the proposed boarding house building is appropriate to the context of the Subject Site, noting that the adjacent buildings to the Subject Site are multi-storey RFBs and the heritage experts have agreed that, notwithstanding their more recent construction, they do form part of the character of the area of the HCA in the vicinity of the Subject Site.

3. based on my conclusions above (at [(1)] and [(2)]), I am satisfied that:

1. the Proposed Development is compliant with the relevant controls of Part B9 section 9.4 of WDCP and it also achieves the relevant objectives of that section;

2. clause 5.10 of WLEP requires that the Court should consider the effect of the proposed development on the heritage significance of the HCA and I am satisfied that this requirement has been addressed through the consideration of the evidence of the heritage experts and its relationship to the provisions of Part B9 section 9.4 of WDCP; and

3. the design and built form of the Proposed Development is acceptable in relation to the values of the HCA within which it will be located.

79. Clause 30A of SEPP ARH requires that a consent authority, or the Court on appeal, must consider whether the design of the development is compatible with the character of the local area, and based on my conclusions above [at [78]], I am satisfied that the design of the Proposed Development is compatible with the character of the local area, noting that the character of the local area includes the two residential flat buildings on the corners of Edward Street.

80. I note that within the joint report of the heritage experts Mr Paul Davies provided a summary of what he referred to as difficulties with the design in relation to HCA values. It is my assessment that:

1. the difficulties identified by Mr Paul Davies reflect outcomes that are likely to arise within any new development on the Subject Site that is consistent with the intent of the Subject Site’s R3 zoning; and

2. these issues do not provide a basis for refusal of the Proposed Development.

Has the Proposed Development responded adequately to the general design and town planning concerns identified in the contentions?

81. As identified above, the Respondent had contended that the Proposed Development was not acceptable in relation aspects of its design and related planning matters.

82. The Respondent noted that the outstanding particulars in terms of building design related to the following two matters:

Void area Level 01

1. the Applicant’s proposed design includes a void area on level 01 within the Proposed Development, which the Respondent said contributes to the bulk and scale of the building, and has limited utility. In relation to this:

1. the Respondent in closing stated that the void is a result of excavation required to provide light into an area located below ground level, and that Mr Adamson’s assessment of this feature was contained within the joint expert report of the planners where he had addressed other design related contentions;

2. Mr Adamson had stated that the area of the void would not receive adequate solar access and would present potential future management issues with respect to drainage and dampness;

3. the Applicant submitted that:

1. to the extent that Mr Adamson had identified concerns in relation to the void these related to the extent of excavation proposed by the Applicant;

2. the Respondent had not raised any contention in relation to the provisions of cl 6.2 of WLEP which concern, and provide controls in relation to excavation; and

3. the design of the Proposed Development, including the void referred to by the Respondent in its contention, had been adequately addressed by Mr Darroch in his written evidence within the joint expert report prepared with Mr Adamson, and in his oral evidence which was consistent with opinions provided within the joint expert report;

4. Mr Darroch had said within his written evidence in the joint expert report that the void provided solar access to west facing highlight windows, and so improved amenity to the communal space within wing A of the Proposed Development, without giving rise to any amenity impacts;

5. having considered the submissions of the Parties and the evidence of the expert planners, I am satisfied that the design of level 0I within the Proposed Development, including the proposed void space, is acceptable for reasons provided by Mr Darroch in relation to the provision of solar access to an important communal space within the Proposed Development (see above at [(d)]), which I adopt;

Materials and finishes

(2) the materials and finishes proposed for the Proposed Development in relation to which:

1. the Respondent submitted that the Applicant had not demonstrated consistency with the heritage character of the area;

2. the Applicant submitted that the modulated façade of the Proposed Development represented an improvement to the streetscape presentation containing the residential flat buildings located on either side of the Subject Site;

3. Mr Darroch said that:

1. the finish and materials of the Proposed Development related to the materials in the current building on the Subject Site, including the use of timber batons that would allow light to penetrate into the site;

2. while the presentation of wings A and C was different to that of wing B, the streetscape presentation was, by intent, contemporary, and it was not dissimilar to other streetscape presentations of developments found in the HCA. He said that these contained diverse examples of contemporary structures in the streetscape, including a variety of screening treatments;

3. while he agreed with the Respondent that the Proposed Development would be prominent in the streetscape, it was his opinion that it would not draw attention to itself;

4. having considered the submissions of the Parties and the evidence of the experts I am satisfied that:

1. the Applicant’s proposed materials and finishes for the Proposed Development are acceptable having regard to the character of the local area, noting that this area contains buildings of eclectic design, including buildings of a contemporary presentation, houses with presentations reflecting designs of the inter-war period, and post-war period, as well as residential flat buildings reflective of building design of the 1960s and 1970s;

2. as submitted by the Applicant, the presentation of the Proposed Development, including its proposed materials and finishes, would provide an improvement to the streetscape presentation of the Subject Site and adjoining properties presenting to Edward Street;

3. the presentation of the Proposed Development would complement the existing character of the area and would enhance the views along Edward Street including from the public domain.

83. The Respondent identified a series of further concerns in relation to the following aspects of the Proposed Development:

Substation location

1. the Proposed Development includes an electrical substation, in relation to which:

1. the Applicant has proposed that the substation should be located centrally within the Proposed Development’s street presentation to Edward Street, in front of the central wing B of the development;

2. the Respondent had submitted that the substation as proposed was not integrated adequately into the design of the building and said that it had a defensive presentation in the street and added to the visual bulk of the Proposed Development;

3. Mr Darroch said during his oral evidence that:

1. the Applicant had considered a variety of possible locations for the substation during the design process and the central location as proposed was the best that could be identified;

2. the substation could not be moved or setback further into the building as a consequence of numerous constraints including the location of street trees and the location of the proposed access driveway to the east;

3. the substation was not able to be landscaped as any landscaping would restrict the access required for maintenance of the facility;

4. the design of the proposed screen around the substation was an appropriate response to the streetscape presentation of the Proposed Development;

4. having considered the submissions of the Parties and the evidence of the experts on this subject, I am satisfied that the proposed location, and presentation in the streetscape, of the substation is acceptable for reasons provided by Mr Darroch, (above at [(c)]) which I adopt;

5. I am further satisfied that:

1. having assessed that the location of the proposed substation is acceptable in relation to streetscape presentation, I am also satisfied that that the Applicant’s landscape plans of the front setback area are compatible with the streetscape in which the Proposed Development is located, which includes its location in Edward Street between two residential flat buildings; and

2. as the Applicant’s landscape plans of the front setback are compatible with the streetscape in which the Proposed Development is located, the Proposed Development has met the standard in cl 29(2)b) of SEPP ARH, and cannot be refused for reasons associated with the landscape presentation in the streetscape;

Acoustic impacts

(2) the use of the proposed common open space may give rise to excessive noise that could impact on the acoustic amenity of neighbours, in relation to which:

1. the Respondent said that:

1. the extent of glazing on side elevations and the placement of balconies, have the potential to give rise to acoustic impacts on adjacent properties;

2. the location of the external communal open space area on the ground floor was alleged to give rise to potential noise impacts upon neighbours;

3. the communal space would need to be restricted to use by no more than 20 people, and with no more than 10 of these speaking at any one time, in order for the development to comply with applicable noise criteria;

4. Mr Darroch had opined that compliance with the applicable noise criteria would be achieved through the manager’s oversight of the space and its use, which was facilitated by the location of the Manager’s Room in close proximity to the communal space, as confirmed within the Applicant’s amended plans;

5. notwithstanding that Mr Adamson had accepted Mr Darroch’s opinion concerning the approach to management of potential noise impacts, compliance with applicable noise criteria though an improved design, rather than through management intervention, should be preferred;

6. as it would not be possible, through the imposition of a condition of consent, to require an amended design to ensure these potential noise impacts, the application should be refused.

2. the Applicant submitted that:

1. amendments to its plans have resolved this contention;

2. the side setbacks of the Proposed Development were compliant with the relevant controls in WDCP, and were sufficient to mitigate any potential noise impacts from boarding rooms on adjacent properties;

3. the communal space is setback more than 6m from any adjoining property;

4. the location of the communal open space immediately adjacent to the Manager’s Room would ensure that its use would be the subject of strict control, consistent with the Applicant’s proposed plan of management;

5. as identified by Mr Darroch in his oral evidence at the hearing, neighbours would be provided with contact details for the manager should they required specific remedial action to be taken in relation to use of the communal area and noise arising therefrom;

6. the Court would note the advice of Mr Adamson that he did not have expertise in acoustics and did not seek to give evidence in relation to compliance of the Proposed Development with applicable noise criteria;

3. having considered the submissions of the Parties and the evidence of the experts, I am satisfied that:

1. the Applicant’s proposals for management of potential noise impacts from the use of the communal open space are reasonable;

2. consistent with the evidence of Mr Darroch and the submissions of the Applicant, the location of the Manager’s Room adjacent to the communal space will assist in assuring that noise levels in the communal space are managed to achieve compliance;

3. the Applicant’s plan of management, which would be provided to potential future residents would ensure that residents are made aware of the approved basis for use of the communal space;

4. the Respondent’s contentions concerning potential noise impacts are not a reason for refusal of the Applicant’s Proposed Development;

Visual privacy

(3) potential visual privacy impacts, which the Respondent said was a concern in relation to both the residence adjoining to the south of the Subject Site at 58 Durham Street, and the residential flat building to the west, and in relation to which:

1. the Responded submitted that:

1. the extent of glazing on side elevations, and the placement of balconies, had the potential to give rise to visual impacts;

2. the quantum of self-contained rooms with windows oriented to side boundaries necessitated the incorporation of effective privacy measure within the Proposed Development;

3. the Proposed Development should not rely on landscaping to achieve effective visual privacy outcomes;

4. the Applicant should be required, though the imposition of a condition of consent, to install fixed screens angled at 30 degrees in a northerly direction as proposed by Mr Adamson within his joint expert report prepared with Mr Darroch;

2. the Applicant said that:

1. the Respondent raises no contentions concerning potential impacts relating to loss of views, bulk and scale or overshadowing; and

2. its proposals for sliding screens were an appropriate design response to the need to assure visual privacy providing residents with flexibility in the management of solar access to their rooms;

3. Mr Adamson confirmed at the hearing that, in his opinion, the Applicant should be required to install fixed screens with a 30 degree angle to the north in order to assure visual privacy between adjoining window and to retain adequate solar access;

4. Mr Darroch said in his oral evidence at the hearing that:

1. he agreed with the Respondent that the Proposed Development included a significant number of units that were oriented towards the side boundaries of the Subject Site;

2. the principal visual privacy concerns, in his opinion, related to the west side of the Proposed Development;

3. the visual privacy of neighbours to, and residents of, the Proposed Development would be assured through buildings separations of up to 6m, together with the installation of vegetation in planters and the use of sliding screens;

5. having considered the evidence of the experts and the submissions of the Parties, I have concluded that:

1. I prefer the evidence of Mr Adamson and agree with him that, given the large number of windows oriented to the side boundaries of the Subject Site, the visual privacy of residents in adjoining developments is most appropriately assured through requiring that privacy screens on the side of the Proposed Development be fixed, with their blades set at a 30 degree angle to the north;

2. as proposed by Mr Adamson, any grant of consent should include the imposition of a condition requiring that the Applicant install fixed screens to side facing windows in the proposed Development, and that these screens should include blades angled to 30 degrees to the north;

Solar access

(4) the potential solar access impacts of the Proposed Development on neighbouring properties, in relation to which the expert planners confirmed during the hearing that the Proposed Development would not give rise to unreasonable solar access impacts on adjoining properties, notably the properties at 23 Castlefield Street and 58 Denham Street;

(5) the provision of solar access within the Proposed Development, in relation to which:

1. Mr Darroch stated that:

1. clause 29(2)(c) of SEPP ARH provides in relation to solar access that consent cannot be refused for a boarding house development in circumstances where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter;

2. the Proposed Development provides for up to 5 hours solar access to at least one of its communal living rooms;

3. there is no other requirement under the provisions of SEPP ARH for the provision of solar access to boarding rooms;

4. the Proposed Development provides reasonable levels of solar access to boarding rooms and communal areas;

5. the Applicant’s view from the sun analyses had demonstrated that the private courtyards would receive two hours of sunlight between 10:30am and 12:30pm at mid-winter, and he did not agree with Mr Adamson that these courtyards and boarding rooms would be adversely impacted by a lack of sunlight, nor by drainage and dampness issues; and

6. while he agreed that the sun would not strike the floor of the western courtyards in the Proposed Development, that space would receive adequate solar access, and the level of solar access provided to this space would not provide a basis for refusal of the Applicant’s Proposed Development;

2. Mr Adamson said that, in his opinion, courtyards areas positioned below natural ground level would have potential drainage problems post construction and no sunlight would hit the floor of that area to assist with its drying;

3. the Respondent in closing submitted that:

1. notwithstanding the provisions of cl 29(2)(c) of SEPP ARH, the Court would not be prevented from undertaking a merit assessment of the solar access amenity of what it had described as below ground boarding rooms and courtyards;

2. in response to a question put to Mr Darroch, he was unable to confirm whether the height of courtyard walls had been correctly drawn in one of the Applicant’s plans, noting a possible inconsistency between the Applicant’s plan SK-3303 (a section) and plan SK-8601 (a view from the sun diagram); and

3. the Court would not approve the Proposed Development in circumstances where certain of the Applicant’s plans were inconsistent, such that the Applicant could not confirm the extent of solar access provided to the boarding rooms and adjacent courtyards;

4. the Applicant submitted that:

1. there is no requirement under the SEPP ARH standards, nor under other controls applicable to the Proposed Development, for the provision of a minimum amount of solar access to boarding rooms; and

2. notwithstanding what it referred to as “some confusion” over the location of the section illustrated in plan SK-3303, Mr Darroch’s evidence concerning the provision of solar access to the courtyards and boarding rooms of relevance remained unchanged from that noted above (at [(a)]);

5. having considered the evidence of the experts and the submissions of the Parties, I have concluded that:

1. I am satisfied that the Proposed Development satisfies the provisions of cl 29(2)(c) of SEPP ARH, and that at least one communal living area within the proposed boarding house will receive at least three hours of solar access at mid-winter;

1. consistent with the evidence of Mr Darroch and the submissions of the Applicant I accept that there is no further provision of SEPP ARH that requires a minimum level of solar access to boarding rooms and adjacent private open space courtyards within the Proposed Development;

2. given that there is no minimum level of solar access required for boarding rooms and adjacent private open space courtyards, the potential inconsistency between the Applicant’s plans noted by the Respondent above (at [(c)(i)]) does not form a basis for refusal of the Applicant’s proposed Development;

3. I am satisfied, based on the evidence of Mr Darroch which I accept, that the Proposed Development is satisfactory with respect to the provision of solar access to residents of the Proposed Development;

4. notwithstanding the conclusion above at [(iv)], I agree with the Respondent that any plans approved by the Court as part of a consent to the Proposed Development should be consistent and the Applicant should be directed to review, and if necessary amend, its plans SK-3303 and SK-8601 to assure consistency between the plans in relation to the proposed height of courtyard walls;

Excavation

(6) the potential impacts arising from proposed excavation, including in relation to stormwater management and the amenity of certain rooms to the west of the Proposed Development, in relation to which:

1. the Respondent submitted that:

1. the proposed excavation is not seen elsewhere in the local area and will be an alien element which is out of character with the local area;

2. the Applicant’s had provided insufficient information in relation to the extent of excavation proposed and the amenity of certain boarding rooms said the be located below ground level, and in relation to certain boundary and perimeter walls;

3. the proposed excavation works give rise to adverse amenity impacts within the Proposed Development in relation to communal spaces, boarding rooms and landscaping;

4. on the basis of evidence provided by Mr Adamson, the proposed levels of excavation result in elements of the built form located below natural ground level and this increases the bulk and scale of the development such that it represents a level of development that is beyond the capacity of the Subject Site;

5. the amount of excavation should be reconsidered to ensure that there is a better relationship between the landform and the proposed boarding house building;

2. the Applicant submitted that the Respondent had raised no contention in relation to the provisions of cl 6.2 of WLEP concerning earthworks, and that, based on the evidence of Mr Darroch, the level of excavation is acceptable and does not give rise to unreasonable amenity impacts;

3. having considered the submissions of the Parties, the evidence of the planning experts, and mindful of conclusions already reached in this judgment, I am satisfied that:

1. the level of excavation proposed by the Applicant within its Proposed Development is acceptable;

2. the Applicant’s proposed levels of excavation will not give rise to unreasonable amenity impacts in relation to boarding rooms and landscaping; and

3. the provisions of Part B14 of WDCP concerning excavation have been satisfied by the Applicant’s Proposed Development, as amended;

Manager’s room

(7) the adequacy of the dimensions of the proposed manager’s room, in relation to which:

1. the Applicant has proposed that, to remove any doubt, it would accept imposition of a condition as follows to satisfy the provisions of cl 29(2)(d)(ii) of SEPP ARH:

“The glazing, including the doorway to the private open space for the managers room, will be moved west and inward by 500mm to ensure that the dimensions of the private open space will be 4m x 2.5m.”

2. I agree that this matter can be resolved as proposed by the Applicant, and I adopt its proposal for the imposition of the above condition;

Waste management

(8) the acceptability of the design of waste management facilities and proposals for waste collection, in relation to which:

1. in response to evidence provided by the Parties expert planners, the Applicant amended it application so as to:

1. re-allocate a previously proposed car space (car space 9) for the purpose of on-site waste collection within the basement of the Proposed Development;

2. propose the use of a small waste vehicle that could park within the nominated space when collecting waste from the Proposed Development on a twice weekly basis;

3. confirm that the space nominated for use by a small waste collection vehicle could be used at other times for the parking of vehicles associated with trades and other maintenance personnel attending the Subject Site;

2. the Applicant provided a letter from ttpp transport planning, tendered as evidence at the hearing, confirming that:

1. the requirements for manoeuvring and parking of the small waste collection vehicle proposed by the Applicant were consistent with the requirements of B99 vehicle; and

2. the proposed aisle width and parking space dimensions associated with the nominated space (car space 9) were compliant with the requirements under AS2890.1 for access by a B99 vehicle;

3. the Respondent submitted within its written closing submissions that the Court had been provided insufficient information to be satisfied that the proposed waste collection vehicle could enter the basement car park and collect waste while parked in the nominated space (car space 9), and it noted that the following matters required further advice for the purposes of assessing the viability of the Applicant’s amended proposals for waste collection:

1. confirmation that basement entry and basement proper provided a minimum clearance of 2.1m throughout the proposed path of travel for the small waste collection vehicle;

2. if the rear of the small waste collection vehicle is required to be lifted in order to collect waste, confirmation that this be accommodated within the height clearance available in the space nominated for waste collection;

3. confirmation that the side mirrors of the small waste collection vehicle included in the width dimension provide for the vehicle by ttpp transport and planning of 1.95m;

4. the method by which the Applicant proposes that the nominated waste collection space would be kept reserved for waste collection; and

5. the frequency required for waste collection, having regard to the capacity of the vehicle;

4. the Respondent had further submitted that it remained concerned that the Applicant’s proposals for waste management were unable to be guaranteed given that the vehicle proposed by the Applicant could only be provided by a single private sector service provider;

5. the Applicant in its closing submissions in reply provided the following information in relation to the Respondent’s requirements for further information:

1. the Applicant’s architect had confirmed that a minimum 2.1m clearance was available for the small waste collection vehicle to access to the basement and throughout the Applicant’s nominated path of travel and space proposed for waste collection;

2. the Applicant’s waste expert, Mr Rudd of ttpp transport and planning had confirmed that the small waste collection vehicle was able to collect waste within the 2.1m headroom clearance available within the nominated waste collection space;

3. the width of the proposed small waste collection vehicle was 1.7 m, and the swept path available to the vehicle for movement within the basement had been calculated on a 2.1m wide vehicle, and provided a further 300mm clearance beyond the path calculated;

4. the nominated waste collection space could be kept reserved for waste collection through the imposition of a condition requiring installation of a folding and lockable bollard to be managed by the on-site boarding house manager and under management arrangements provided within the Applicant’s plan of management for the facility;

6. in response to an invitation from the Court to confirm arrangements in relation to waste management, the Applicant provided additional information from its expert, Mr Rudd, concerning the collection of waste from the Proposed Development and confirming the dimensions of vehicles proposed to be utilised for that purpose;

7. the Respondent, noting the further information provided by the Applicant, made the following further submissions;

1. the proposed biweekly collection is unusual for waste and more so for recycling in a residential development, which are typically weekly for general waste and fortnightly for paper and cardboard bins (blue) and container recycling bins (yellow);

2. the waste collection company proposes to combine all materials into the one collection vehicle for later sorting at a tipping facility which would negatively impact on Waverley Council’s landfill diversion targets.

3. while the dimensions of the truck cited to be used for servicing may be able to enter the parking area, the on-site waste collection area must be designed to allow collection vehicles to enter and exit the property in a forward direction and have adequate vehicle clearance;

4. the waste collection vehicle proposed to service the site does not meet the relevant requirements set out in Part 2: Off Street Commercial Vehicle Facilities (AS 2890.2), per Annexure B1-3 in the Waverley Council Development Control Plan 2012;

5. it is unclear the mechanism by which the bins would be emptied into the vehicle indicated, given the significant weight of 660L waste bins proposed at this development;

6. on-site waste collection is to be accommodated within a basement from a dedicated collection point or loading bay that does not impede pedestrian or vehicle movement within the development. It is unclear how the vehicle can service the development in a safe manner;

7. the use of a private waste collection service and particularly a small vehicle with limited capacity, is not a cost-effective approach, as the small truck volume requires more frequent collection (biweekly). This development is modelled to generate at least 13 x 660L mobile garbage bins (MGB) per week. It is unclear as to whether the vehicle proposed would be able to collect this amount of material twice per week. The proposed small vehicle size also does not allow for a change of use to council’s collection service in the future by current or future owners or tenants;

8. no additional SWRMP has been provided to detail waste minimisation practices, indicate where bulky waste storage is located, or to address the comments provided in the previous referral, including all details of the onsite collection;

9. the above matters could be resolved through the imposition of conditions of consent, drafts of which it had provided with its further submissions;

8. the Applicant stated, in response to the Respondent’s further submissions that:

1. its proposed waste collection service provider had confirmed that, whilst a 660L bin is larger than a standard residential waste bin, it is not heavy or cumbersome and easily managed by the vehicle proposed for waste collection;

2. its expert traffic engineer had confirmed that the Proposed Development facilitated the ingress and egress of the vehicle proposed to collect waste;

3. in relation to the Respondent’s comments concerning bi-weekly collections and costs associated with same, the Proposed Development is not able to be subdivided, would be owned by a single entity and the costs associated with the collection of waste are a consideration for that owner;

4. the Applicant is the current owner and is content to bear costs associated with the proposed method for management and collection of waste;

5. the Applicant would accept imposition of the conditions proposed by the Respondent in respect of waste management including conditions relating to waste minimisation during construction and a condition requiring a covenant to be registered on title to ensure the ongoing operation of the proposed garbage collection methodology.

9. having considered the submissions of the Parties and the evidence of the Applicant’s traffic expert, Mr Rudd, I am satisfied that:

1. the Applicant’s proposal for on-site waste collection, as recommended by the Parties’ expert planners, is consistent with the provisions of section 1.4.2.1 of WDCP concerning waste collection in relation to multi-residential and mixed use developments;

2. as the Applicant’s proposed arrangements for management of waste were amended during the hearing, the Applicant should be required, through the imposition of a condition of consent, to amend its Site Waste and Recycling Management Plan (SWRMP);

3. the Respondent’s proposed conditions of consent concerning waste management, which include requirements for the Applicant to amend its SWRMP, should be reflected in any final agreed conditions of consent prepared in relation to the Proposed Development; and

4. the Applicant’s proposals for waste management within the Proposed Development, together with the imposition of conditions of consent as proposed by the Respondent, are acceptable and resolve the contention in relation to waste management;

Parking

(9) the Applicant has proposed that its boarding house should provide 19 physical car spaces within its basement in relation to which:

1. the proposed car parking configuration includes:

1. eight (8) car spaces are proposed to be included through the use of Klaus Multibase 2072i-180 car stacker system across an area that would otherwise accommodate four (4) car spaces;

2. two (2) car spaces would be allocated as accessible spaces;

3. the allocation of one (1) car space for the use of the boarding house manager in fulfillment of the requirement in cl 29(2)(e)(iii) of SEPP ARH;

4. the proposed use of one (1) space for the purpose of waste collection;

5. the Applicant accepted that one of the spaces could be used as a car share space, as proposed by the Respondent, and which, pursuant to the provisions of section 8.2.2 of Part B8 of WDCP, would replace the demand of up to four (4) car spaces;

6. the Applicant opposed the allocation of one car parking space for visitor parking on the basis that this was inconsistent with Council’s policy of reducing parking and discouraging reliance on motor vehicles;

2. the Respondent submitted in closing that:

1. the Proposed Development was required to provide parking for 19 cars for its 37 room boarding house pursuant to the provisions of cl 29(2)(e)(iia) of SEPP ARH, and that was a so-called “must not refuse” standard;

2. the Proposed Development provided 18 spaces on the basis that one of the 19 car space was now proposed to be allocated for use in relation to waste collection;

3. the provisions of WDCP do not establish a control with respect to the provision of parking in a boarding house;

4. the Applicant has not, in its submission, provided evidence that 18 car parking spaces was an appropriate number of spaces for the development;

3. the Applicant noted in its closing submissions that, on the basis of its acceptance of the use of one (1) car space as a car share space, the Proposed Development, as amended, would provide the equivalent of up to 21 car spaces, plus the space proposed for allocation for waste collection, as follows:

1. eight (8) car spaces within the proposed car stacker system;

2. two (2) accessible car spaces;

3. up to four (4) car spaces though the allocation of one (1) space for use as a car share space;

4. one (1) space allocated for use by the manager; and

5. six (6) further car spaces for general use by residents;

4. the Applicant has also provided a letter from its traffic expert, ttpp transport and planning, which states that the proposed spatial arrangements within the basement of the Proposed Development would satisfactorily accommodate the installation of the Applicant’s proposed Klaus Multibase 2072i-180 car stacking system;

5. having considered the submissions of the Parties, and the evidence of the experts, I am satisfied that:

1. the Applicant’s proposed arrangements for parking (see above at [(c)]), are acceptable;

2. the proposed use of one car space for use as a car share space would provide for the equivalent up to 21 car spaces within the development, in satisfaction of the provisions of cl 29(2)(e)(iia) of SEPP ARH, along with a further space (identified as space 9) that would be dedicated for use in relation to waste collection;

3. the proposed allocation of a car space for use as a car share space, as well as the dedication of a space for waste collection, incorporating the installation of a folding and lockable bollard, managed by the boarding house manager, should be confirmed within a condition of consent;

4. there should be no requirement within the conditions of consent for the allocation of a car space within the development for a visitor space because no evidence has been provided to me that such an allocation is required under a provision of either WDCP or SEPP ARH, and in my assessment, it is more appropriate to leave the allocation of residential parking spaces to the discretion of the manger;

5. the Respondent’s proposed condition 15 should be amended to reflect the Applicant’s proposed allocation of car parking spaces, as follows:

“15. CAR PARKING ALLOCATIONS

A total of 19 car vehicle parking spaces are to be provided, allocated in the following manner:

14 residential parking spaces

2 accessible parking spaces for resident use

1 car space allocated for use by the boarding house manager

1 car share parking space

1 space allocated for waste collection, incorporating a folding and lockable bollard

Details are to be submitted to the Principal Certifying Authority prior to the issue of the relevant construction certificate.”

Further evidence of heritage experts concerning design matters

84. At the hearing the Parties’ heritage experts also provided the following further oral evidence in relation to the above planning matters:

1. in relation to the general design of the Proposed Development other than in relation to its compatibility with the character of the HCA:

1. Mr Paul Davies said that, in his opinion, the design of the Proposed Development was good and was responsive to the subdivision pattern of the three constituent lots within the Subject Site. He also acknowledged that the proposed 6m side setback was acceptable and he said that the landscaping, articulations within the built form, and the setbacks of the development were in keeping with the streetscape of the area;

2. Dr Stephen Davies, for the Applicant stated that, although some trees were proposed to be removed for the Proposed Development, those trees removed would be replaced through new plantings. He also agreed with the Respondent that excavation at the level proposed by the Applicant was not characteristic of the local area of the Subject Site.

85. I agree with the opinions expressed by Paul Davies (see at [84(1)(a)]) in relation to the overall design, landscaping and setbacks within the proposed Development.

86. I agree with Stephen Davies (see above at [84(1)(b)]) that the Applicant’s proposals for replacement tree plantings to compensate for the loss of trees within the Proposed Development are acceptable, and, as already concluded in this judgment (see above at [83(6)(c)]) I am satisfied that, notwithstanding his observation in relation to excavation, the Applicant’s proposals for excavation are acceptable on the basis that this is required to mitigate potential impacts on neighbouring properties that may arise if the height of the Proposed Development were to be increased at the rear, southern, part of the Subject Site.

87. On this basis of the further evidence of the heritage experts, together with my conclusions above at [82] and [83], I am satisfied that the relevant provisions of Part B12 of WDCP concerning design excellence have been met.

Other matters

88. For completeness I note that the Applicant’s development application, as amended has satisfied the following matters that were not the subject of contentions in the appeal:

1. the provisions of cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) in relation to which the Applicant has tendered a preliminary site investigation report prepared by Alliance Geotechnical dated 18 December 2021. The report concludes that there are no areas of environmental concern identified and the Subject Site is suitable for its proposed use as a boarding house;

1. the Applicant had provided a BASIX certificate no. 1112620M dated 10 July 2020 in satisfaction of the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX).

Consideration of objector submissions

89. I have previously identified matters raised by objectors in submissions made at the commencement of the hearing (see above at [20]). Following my consideration and resolution of the contentions in the appeal, I am satisfied that the matters raised in submissions have been addressed in the proceedings.

90. In relation to these objections, and noting concerns expressed in relation to impacts on the health of residents (see above (at [20(8)]), I have previously made reference, including in the judgment concerning SLushY Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1394 (SLushY), to the remarks of Justice Robson in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 (Omid Mohebati-Arani) in which at [75]-[78], his Honour notes:

“75 I have referred above to my consideration of the extensive objections received to the proposal which were generally reflected in the issues initially raised by Council in its earlier Statement of Facts and Contentions and, to some extent, thereafter raised in the Association’s contentions. Before considering the discrete issues raised, a number of preliminary matters should be stated.

76 First, where land by its zoning has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to whether development is appropriate. As has been frequently stated by this Court, whilst the fact that a particular use may be permissible is generally a neutral factor, a planning decision must generally reflect an assumption that development which is consistent with the zoning will be permitted. This is because the Act provides a complex regime, including extensive public participation, to determine the nature and intensity of development which may be appropriate at any site, and accordingly weight should be given to the outcome of this process (see BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]-[118] per McClellan CJ of LEC).

77 Second, the above does not mean that the Court must not give close consideration to all matters otherwise required pursuant to s 79C of the Act. Whilst I take account of the fact that many of the issues initially identified by Council are no longer pressed, each of the issues that are now before the Court require consideration based upon the evidence now available.

78 Third, the extensive and well-considered objections to the proposal are clearly indicative of extensive local community concerns. While these concerns are understandable, they must be closely considered in the context of the amended application and the evidence now before the Court, particularly the expert evidence.”

91. As also noted in my judgment in SLushY, at [108] in his judgment in Omid Mohebati-Arani, his Honour Justice Robson provided the following concluding remarks, which are consistent with my views in relation to the outcomes in this appeal:

“108 In addition to the carefully presented objections made by those residents who gave evidence, there were extensive and detailed objections made by many others. I have no doubt that those who objected to the proposal have expressed their concerns sincerely. However, although there will be discernible effects that will result from the proposal, the evidence of the various experts leads me to the view that the amenity impacts the subject of the residents’ complaints are not sufficient on their own or in a cumulative sense to warrant refusal of the development application. I am satisfied on the evidence before me that the relevant planning concerns raised by the objectors has been, and is able to be, addressed by the plans presently before the Court and the proposed conditions of consent.”

Conclusions

92. On the basis of my assessment and conclusions above, I am satisfied that the Applicant’s development application in relation to the Proposed Development should be the determined by the grant of consent because:

1. as confirmed above (at [48]), I have concluded that the Applicant’s written request to vary the HoB development standard in cl 4.3 of WLEP should be upheld;

2. as I have concluded above (at [65]), the Applicant’s proposal to demolish the existing three dwellings on the Subject Site is acceptable;

3. as I have concluded above (at [78(3)(c)]) the design and built form of the Proposed Development is acceptable in relation to the values of the HCA within which it will be located;

4. for reasons provided above (at [81] to [83]) the Proposed Development, as amended, has responded adequately to the general design and town planning concerns identified in the contentions such that those contentions are resolved, subject to the following:

1. as identified above at [83(3)(e)(ii)]), a condition of consent should be imposed requiring that the Applicant install fixed screens to side facing windows in the Proposed Development, and that these screens should include blades angled to 30 degrees to the north;

2. as identified above at [83(5)(e)(v)]), the Applicant should be directed to review, and if necessary amend, its plans SK-3303 and SK-8601 to assure consistency between the plans in relation to the proposed height of courtyard walls;

3. as identified above at [83(7)], a condition of consent should be imposed to satisfy the provisions of cl 29(2)(d)(ii) of SEPP ARH as follows:

“The glazing, including the doorway to the private open space for the managers room, will be moved west and inward by 500mm to ensure that the dimensions of the private open space will be 4m x 2.5m.”

4. as identified above at [83(8)(i)(iii)] and as accepted by the Applicant, the Respondent’s further proposed conditions of consent concerning waste management should be imposed, including requirements that the Applicant amend its SWRMP;

5. as identified above at [83(9)(e)(v)], the Respondent’s proposed condition 15 should be amended to reflect the Applicant’s proposed allocation of car parking spaces, as follows

“15. CAR PARKING ALLOCATIONS

A total of 19 car vehicle parking spaces are to be provided, allocated in the following manner:

14 residential parking spaces

2 accessible parking spaces for resident use

1 car space allocated for use by the boarding house manager

1 car share parking space

1 space allocated for waste collection, incorporating a folding and lockable bollard

Details are to be submitted to the Principal Certifying Authority prior to the issue of the relevant construction certificate.”

93. All other jurisdictional matters that must be satisfied in order that the Court’s powers to grant consent are enlivened have been so satisfied, including:

1. the provisions of cll 30 and 30A of SEPP ARH; and

2. the provisions of SEPP 55 and SEPP BASIX, as discussed above at [88].

94. As is evident from the judgment, it will be necessary that the Parties undertake some further work to amend certain plans and to finalise agreed conditions of consent, consistent with the findings in this judgment such that final orders can be made to dispose of the appeal. To that end I make the following directions.

Directions

95. The Court directs:

1. the Applicant is to amend its plans reflecting the conclusions of the judgment above at [92], by no later than Friday 22 October 2021;

2. the Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Waverley Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant further amending its development application DA-426/2019, as amended with the leave of the Court on 17 May 2021 and as tendered into evidence at the hearing on that date, to reflect direction made above (at direction (1));

3. the Respondent, Waverley Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 10 days of the date of this direction and notify the Applicant after it has been lodged;

4. the Applicant is to file with the Court a copy of the amended development application within 2 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal;

5. the Parties are to file with the Court final agreed conditions of consent, reflecting the conclusions of this judgment above at [92], by no later than 3pm on Friday 29 October 2021;

6. the matter is listed for mention on Monday 1 November 2021 at 4:15pm by Teams;

7. if direction (5) above is complied with, orders will be made granting development consent and the mention on 1 November 2021 will be vacated;

8. the Parties are granted liberty to restore on 3 days’ notice.

…………………………..

M Chilcott

Commissioner of the Court

**********

Amendments

18 October 2021 - Amended typographical error with Applicant's solicitors.

Decision last updated: 18 October 2021