A.C.N. 637 462 250 Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2020-09-29

Judgment

COMMISSIONER This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application No. DA2020/0090 seeking development consent for the demolition of the existing structures and construction of a three (3) and four (4) storey split level boarding house containing twenty-two (22) double rooms and basement parking, earthworks and excavation, associated civil infrastructure, including on-site stormwater detention and a new driveway centrally located (the Proposed Development) at 20 Westminster Avenue, Dee Why NSW, legally identified as Lot 15 DP 9125 (676m2) and Lot A DP 392346 (105m2) (the Site).
The development application was refused by the Northern Beaches Local Planning Panel on 1 July 2020. The Applicant filed a Notice of Motion on 13 July 2020 and leave was granted to rely on amended plans and seeks development consent in accordance with the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Some further amendments were made to the Proposed Development without objection during the hearing.
The amended proposed boarding house as summarised in the Amended Statement of Facts and Contentions filed 31 July 2020, comprises of the following: 1. Basement Level (RL 11.050) - Twelve (12) parking spaces including one (1) manager's space and one (1) accessible space. 2. Six (6) motorbike parking spaces - Five (5) wall mounted bicycle parking spaces - Accessible WC - Lift access - Services zone to accommodate air conditioner condenser units; 3. Ground Floor Level (RL 14.00 and RL 14.850) - Rooms 1, 2, 3 and 4 - Managers residence with private bathroom and kitchen facilities - Relocated Room 21 from Level 3 - Waste/bin storage - Sectioned off private open space areas removed from side setback - Waste storage area for 21 x 240L bins - Single driveway crossing onto Westminster Avenue; 4. Level 1 (RL 16.80 and RL 17.650) - Rooms 6, 7, 8, 9, 10, 11 and 12; 5. Level 2 (RL 19.90 and RL 20.450) - Rooms 13, 14, 15, 16, 17, 18 and 19; 6. Level 3 (RL 23.00 and RL 23.250) - Rooms 20, 21, 22 and 23 - Managers residence relocated from Ground Floor level to the north-west corner - Communal Common Room (44.4m2) - Roof Terrace (29m2) - Increased planter width to the northern side of the roof terrace to 1.1m.

Is the Proposed Development compatible with the character of the locality?

The dispute between the parties is narrowed to whether the proposed top floor should be stepped in on both sides so as to achieve compliance with the side boundary envelope control set out in Part B5 of Warringah Development Control Plan 2011 (WDCP) with respect firstly to character and secondly with respect to bulk and scale.
The objectives and requirements of Part B5 of the WDCP are as follows: "B5 Side Boundary Setbacks … Objectives • To provide opportunities for deep soil landscape areas. • To ensure that development does not become visually dominant. • To ensure that the scale and bulk of buildings is minimised. • To provide adequate separation between buildings to ensure a reasonable level of privacy, amenity and solar access is maintained. • To provide reasonable sharing of views to and from public and private properties. Requirements Development on land shown coloured on the DCP Map Side Boundary Setbacks is to maintain a minimum setback from side boundaries as shown on the map. Side boundary setback areas are to be landscaped and free of any above or below ground structures, car parking or site facilities other than driveways and fences. On land within the R3 Medium Density Residential zone, above and below ground structures and private open space, basement car parking, vehicle access ramps, balconies, terraces, and the like shall not encroach the side setback except as provided for under Exceptions below."
In Contention 1 of the ASOFC Council maintains that the proposal is incompatible with the predominant scale of development in the local area by virtue of its size, scale, density and massing. This contention was the subject of considerable written and oral evidence as to compatibility with local character.
In determining what the character of the local area is, it is relevant to note the agreement reached between the expert urban designers regarding the character of the area, namely at [13] of the Joint Expert Report Mr Johannsen and Mr Chung agree that "the area has a character that is defined by some dwellings that are single or two (2) storey, and a range or residential flat buildings of three (3) and four (4) storeys." Similarly, the expert town planners, Mr Haynes and Ms Ezzy agree that there are a range of 2, 3 and 4 storey buildings within the local area, that the predominant development type is residential flat buildings and at [19] "when viewed from directly in front of the site, the building's height, bulk and scale is assessed as appropriate." During the proceedings Mr Haynes and Ms Ezzy further agreed that the local area is defined by the visual catchment and does not go to the extent depicted in figure 1 on page 8 of the Joint Export Report.
The area of disagreement between the town planning and urban design experts focuses on the Proposed Development's non-compliance with the Side Boundary Envelope and whether the Proposed Development is consistent with cl 30A of the SEPP ARH. I have also considered the Applicant's written submission that: "there is no specific locality statement that would define the desired future character of the area in the WLEP or the Warringah Development Control Plan 2011 (WDCP) and it is common ground that the proposed development is compliant with the following principal built form controls that shape the desired development outcome for the location: a. Building height controls (SEPP ARH and WLEP); b. All above ground setbacks controls - front, rear and side setbacks (except for imperceptible basement intrusions) (WDCP); c. Landscape area controls (WDCP); and d. Car parking controls (WDCP)."
The Respondent submits that the failure of the Proposed Development to comply with the side boundary envelope control results in a development that is not compatible with the character of the local area and which exhibits unacceptable bulk and scale.
Clause 30A of SEPP ARH provides as follows: Character of local area A consent authority must not consent to development to which this division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
The Respondent made submissions regarding what the phrase "take into consideration" means in the context of cl 30A of SEPP ARH and relevantly submits as follows: "8. Clause 30A requires the Court to "take into consideration" whether the design of the development is compatible with the character of the local area. In Zhang v Canterbury City Council (2001) 51 NSWLR 589 Spigelman CJ at [71] to [75] made the following comments as to what is required by the words "take into consideration" "[71] The statutory power in s80 of the Act to "determine a development application" by granting or refusing consent does not confer an unfettered discretion. It is subject to the obligation to "take into consideration" the matters identified in s79C(1). This obligation is of a similar character to that which has been found to be imposed by a statutory obligation to "have regard to" identified matters. [72] In one such statutory context Mason J said: "When subs(7) directs the Permanent Head to 'have regard to' the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination". (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 323 at 329 emphasis added). 4 [73] In the case of a statute which empowered the court to make such order "as to it seems just and equitable having regard to: (a) ... and (b) ...", Gleeson CJ and McLelland CJ in Eq said: "... para(a) and para(b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations." (Evans v Marmont (1997) 42 NSWLR 70 at 79-80 emphasis added)."
The Applicant's case is that the SEPP ARH is a "facultative and beneficial" state environmental planning policy and refers the Court to the decisions of Justice Moore in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 (193 Liverpool Road) at [19] and in Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 at [7]. The Applicant submits that the SEPP ARH provides for specific "beneficial" provisions or the provision of affordable rental housing, with the particular "facultative" provisions that apply depending on the nature of the affordable rental housing proposed to be developed (193 Liverpool Road at [20] per Moore J). In this instance, as the proposal is for a boarding house, the provision of Pt 2 Div 3 Boarding Houses apply. Relevantly, cll 29(2)(a) and 29(4) provide as follows: 29 Standards that cannot be used to refuse consent (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)-(f) … (3) … (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).
The Applicant relies on the observation of Moore J in 193 Liverpool Road at [21]: "this "facultative mandatory and permissive provision" does, or can, permit a boarding house to receive the benefit of additional, otherwise nonconforming, height for its development envelope and there is no such provision in the SEPP ARH that applies to residential flat buildings or shop top housing."
The Respondent states in written submissions that "[n]either the need for or the incentivised approach of SEPP ARH to the delivery of affordable rental housing is in dispute."
The R3 Medium Density Residential zoning of the Proposed Development is relied on by the Applicant to support the following submission: "it should be observed that the Site is within the R3 - Medium Density Residential zone pursuant to the Warringah Local Environmental Plan 2011 (WLEP). Development for the purposes of a boarding house is permissible with consent within this zone. It is common ground that the proposed development complies with the height of buildings development standard under clause 4.3 of the WLEP and that there is no applicable storey or floor space ratio control in the WLEP, or indeed the SEPP ARH."
Both parties referred the Court to the character compatibility tests in the planning principle established by the decision of Roseth SC in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture).
There are two limbs to the compatibility. The first limb or the first test is to consider whether the physical impacts of the Proposed Development are acceptable. The Applicant submits that the Court would be satisfied on the evidence that the Proposed Development does not result in unreasonable physical impacts.
For the purposes of character compatibility, the Respondent submits that the following physical impacts are not acceptable: 1. Visual bulk view from surrounding private dwellings and from the identified locations in Westminster Avenue and Holburn Avenue, and 2. Constraint on the development potential of the adjoining property to the south at 18 Westminster Avenue.
The second limb or test to compatibility is whether the visual appearance of the Proposed Development is in harmony with existing buildings around it. This relationship is created by building height, setbacks and landscaping (Project Venture at [26]).
The likely future character of the local area is also a relevant consideration and the Respondent submits that the likely future character of the local area is guided by the controls set out in any applicable SEPP, WLEP and WDCP. At [22] of the Respondent's written submissions, the Respondent submits that "both the proposed number of storeys control and the side boundary envelope control are primary indicators of the desired future character of the area. The building envelopment provided by the combined operation of the overall height permitted by cl 29(2)(a) of SEPP ARH and the side boundary control in WDCP is an important consideration for the Court when assessing this matter […]"
I accept that these are important considerations for the Court however I note that it is within the context of my consideration of whether the design of the Proposed Development is compatible with the character of the local area as required by cl 30A of the SEPP ARH.

Are the physical impacts of the Proposed Development acceptable for the purpose of assessing compatibility of character?

The first physical impact of the Proposed Development, relied on by the Respondent, is the visual bulk view from surrounding private dwellings and from identified locations in Westminster Avenue and Holburn Avenue.
The Respondent submits that the Proposed Development "does not achieve the objectives of the side boundary envelopment control in that it is visually dominant and the excessive bulk of the top floor building elements is visible from surrounding properties and from the public domain." (at [23] Respondent's written submissions).
The experts agree that when viewed directly in front of the Site the result of setting back the fourth storey results in an appropriate character to Westminster Ave in terms of the building's height, bulk and scale (at [19] of the Joint Expert Report).
Other viewing opportunities were considered during the on-site inspection and these were agreed between the experts that "they are only limited viewing opportunities of the setback fourth storey of the proposal - described as "oblique views" along the side setbacks or 'three viewing corridors - southern boundary setback, northern boundary setback and a corridor to the northwest." (oral agreement in hearing and at [38] of the Joint Expert Report).
I have considered the submissions and evidence of the expert witnesses and agree that there will be only limited opportunities to see the setback fourth storey of the Proposed Development and am satisfied that these 'oblique views' will remain in harmony with the character of the local area.
The second physical impact of the Proposed Development, relied on by the Respondent, is the unreasonable constraint on the development potential of the adjoining land at 18 Westminster Ave insofar as it is impacted by overshadowing created by the non-compliance with the side boundary envelope.
The Respondent submits that Project Venture recognises that the physical impacts include unreasonable constraints on the development potential of adjoining land. The Respondent refers the Court to the shadow diagrams prepared by the Applicant (marked Exhibit 7) which depict a possible new development at 18 Westminster Ave and at [35] of the Respondent's written submissions submits that these shadow diagrams "demonstrates that the leading edge of the southern side of the top floor of the proposal has the potential to limit solar access to north facing windows."
The Applicant submits that the Court would reject the oral evidence of Mr Chung during cross examination that "any increase" in overshadowing to 18 Westminster Ave is unacceptable, in circumstances where he agrees that the solar access control for the Site and a hypothetical redevelopment scheme for 18 Westminster Ave both comply with Part D6 of the WDCP, as this would set a more onerous standard as to solar access than in Part D6 of WDCP in breach of s 4.15(3A)(a) of the EPA Act.
Mr Johannsen, urban designer, considers what a side boundary envelope compliant built form would look like and states at [57] of the Joint Expert Report that: "A reconfiguration of the fourth floor within a mansard roof form to meet the side setback plane would result in a built envelopment less in character with the surrounding buildings"
In relation to the overshadowing impact of the non-compliant side boundary envelope, Mr Johannsen explains further at [58] of the Joint Expert Report that: "While the additional fourth floor will result in some minor additional overshadowing for the neighbouring house and open space to the south (and likely future development envelope) at the winter solstice, this would not create significant impacts at that time of the year and would be inconsequential for most of the year."
At [48] of the Joint Export Report, the urban designers agree that "the non-compliance with the Side Boundary Envelopes will increase the number of boarding rooms on the top floor and will cast additional shadow to the neighbouring site on the southern side."
During cross examination Mr Johannsen explained that the amount of increased overshadowing was very minor, and he emphasised the point of it being a very minor increase when comparing a compliant side boundary envelope with the Proposed Development. Mr Johannsen confirmed in crossed examination that there was still capacity for a future development at number 18 Westminster Ave to comply with the Australian Design Standards which would be applicable to a residential flat building in that he was confident that more than 70% of the (hypothetical) units would receive more than 2 hours of sunlight per day.
I am satisfied that the physical impact on the adjoining property at 18 Westminster Ave, regarding any overshadowing as a result of non-compliance with the side boundary envelope, has been demonstrated to be very minor and does not result in unreasonable constraints on the development potential of this adjoining land and I accept the evidence of the urban design experts that there remains capacity and scope to comply with the Australian Design Guidelines for residential flat buildings regarding solar access and that the solar access control for the Site and a hypothetical redevelopment scheme for 18 Westminster Ave both comply with Part D6 of the WDCP.
I find that the design of the Proposed Development will not exhibit unacceptable bulk and scale for the reason that it complies with the WLEP height limit and is consistent with the SEPP ARH in respect to storey control, and satisfies the development standards under cl 29 and cl 30 of the SEPP ARH. I have also taken into consideration the agreements reached between the experts.
I have taken into consideration whether the design of the Proposed Development is compatible with the character of the local area and having looked at the local area during the site inspection and having taken into account the agreements between the experts, the evidence and submissions, I am satisfied that cl 30A of the SEPP ARH is complied with and that I am able to favourably determine the development application for the Proposed Development.

Does the Proposed Development have unacceptable privacy impacts on neighbouring amenity?

I am now required to deal with the only other dispute between the parties which is, if the Proposed Development is approved, whether a condition of consent should be imposed requiring screening of a portion of the northern side of the communal open space on the top floor towards the front of the development with respect to the privacy impact on the adjoining property to the north of the Proposed Development.
Contention 5(d) of the ASOFAC particularises unacceptable impact upon the amenity of surrounding dwellings as "overlooking from the communal roof terrace". The Respondent contends that the proposed communal roof terrace is unacceptable as it will enable overlooking of the adjoining property to the north and south. In oral evidence, Ms Ezzy limited this contention to the property to the north at 22A Westminster Ave and opined that this contention would be resolved by proposed additional conditions requiring a privacy screen to be installed.
The Respondent proposes Conditions of Consent numbered 24 and 39 as follows: "24. Privacy screen to the Level 3 Terrace A 1.5m high louvre privacy screen (height measured from finished floor level) is to be installed extending for 4m from the face of the common room wall along the northern most (inner edge of the planter) of the Level 3 common terrace. Reason: To ensure adequate privacy measures are installed to discourage overlooking of the adjoining property's private open space courtyards. […] 39. Privacy screen to the Level 3 Terrace A 1.5m high louvre privacy screen (height measured from finished floor level) is to be installed extending for 4m from the face of the common room wall along the northern most (inner edge of the planter) of the Level 3 common terrace. Details demonstrating compliance are to be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate. Reason: To ensure adequate privacy measures are installed to discourage overlooking of the adjoining property's private open space courtyards."
The Applicant does not agree to these consent conditions and relies on compliance with other controls to satisfy the Court that there are sufficient means to minimise adverse environmental impacts in respect of privacy to 22A Westminster Ave. These include: 1. A compliant side boundary setback control in Part B5 of the WDCP and the 1m wide planter box to the northern edge of the communal terrace which the Applicant relies on as an additional 1m setback of the terrace from the northern boundary to that required under the WDCP. 2. Compliance with Part D8 of the WDCP - the location of the communal terrace with respect to windows and balconies of 22A Westminster Ave is consistent with design requirement (3) of Part D8 of the WDCP which the Applicant submits is expressly in the control to be in preference to the use of screening devices.
It is the Applicant's case that as the Proposed Development complies with Parts B5 and D8 of the WDCP with respect to side setback and privacy, the disputed conditions seek to impose a more onerous requirement in breach of s 4.15(3A) of the EPA Act.
The experts agree in relation to a number of aspects of 22A Westminster Ave such as the type of windows and whether they have high sills and opaque glass, and it is common ground that the two ground floor units of 22A Westminster Ave have southern terraces as well as northern terraces, both of which have outdoor furniture.
The focus here is these southern terraces of the two ground floor units of 22A Westminster Ave being private open space of adjoining property to the Proposed Development.
Photos of the courtyards were shown during the hearing sourced from a real estate sales site. Mr Haynes opined in oral evidence that the northern terraces for these ground floor units are the 'principle' open space for the purposes of this control as they obtain northern sunlight.
The Applicant submits in written closing submissions at [52] and [53] as follows: "52. Mr Haynes is of the opinion that any views of the southern ground floor terraces from the communal terrace will be limited by the combination of privacy measures proposed by the Applicant: terrace design and location, separation, planter boxes, dense planting, location of the Manager's Residence and the Operational Plan of Management. In areas of higher density (such as the subject R3 medium density residential zone) privacy is more difficult to protect and the Applicant submits that the Court would find that the combination of these privacy measures are sufficient and consistent with the planning principle for privacy identified in Meriton v Sydney City Council [2004] NSWLEC 313 at [46] 53. Further, the Court would accept the evidence of Mr Haynes, who opined during cross examination that the disputed privacy screen may result in undesirable outcomes by unnecessary bulk and an unnecessary restriction to the northern sunlight access to the communal terrace."
I accept that in high density zones the impacts on neighbouring properties is perhaps more challenging to protect however I do not agree in relation to the Proposed Development that the privacy of the northern adjoining property is unable to be protected because the solution has been identified and proposed by Mr Ezzy and is detailed in the terms of the draft Conditions of Consent at 24 and 39. The Respondent has not identified the louvre privacy screen as increasing bulk and the access to sun to the communal terrace of the Proposed Development will be minimally impacted, if at all, as a result of the privacy screen proposed being in the form of a louvre.
The Respondent submits that "the introduction of a raised common open area for the benefit of the future occupants of the boarding house gives rise to potential privacy impacts on the dwellings on the southern side" of the adjoining property. The Respondent notes the reliance by the Applicant on proposed landscaping in the planter boxes to provide adequate privacy and, after noting that Ms Ezzy does not agree that the proposed landscaping will provide adequate privacy, refers the Court to the planning principle relating to the use of landscaping to safeguard against overlooking as set out in Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 quoting the following extract: "6. The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climate conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens."
While I note the general design features of the communal terrace in accordance with Part D8 of the WDCP I do not accept that the planter boxes are sufficient to wholly satisfy this control and I find that a privacy screen, being a relatively simple solution, as proposed by the Respondent and detailed in the proposed Conditions of Consent 24 and 39, is required to safeguard the privacy of the private open spaces of the adjoining property.
I accept that the southern terraces of the ground floor units of 22A Westminster Ave are furnished with outdoor furniture and are used as private open space and therefore the conditions of consent should be imposed as proposed by the Respondent at 24 and 39 quoted above at [46] in this judgment.

Public Interest

The ASOFAC indicates that the Proposed Development was notified and advertised for a period of 21 days from 22 February 2020 to 14 March 2020 in accordance with the Northern Beaches Community Participation Plan. Council received twenty-one (21) submissions as a result of this notification. The issues raised in the submissions include the following: (a) Amenity impacts in terms of noise and privacy; (b) Traffic and parking; (c) Location and character; (d) Solar access; (e) Safety concerns; (f) Density; (g) Height; (h) Community Benefit; (i) Permissibility; (j) Consistency with SEPP ARH; (k) Tree Removal; (l) Evidence of Affordable Housing and future on-selling as one bedroom flats; and (m) Mental Health Impacts - consistency with Section 1.3 of the EPA Act.
The Respondent contends that the proposal should be refused having regard to the matters that have been raised in the resident's submissions to the extent that these submissions are consistent with the contentions set out in the ASOFAC.
The Applicant notes that the town planning and urban design experts agree that there were limited public objections to the Proposed Development and the particulars of this contention repeat earlier contentions and warrant no further consideration (Joint Expert Report at [93]-[95]).
Finally, the Applicant relies on Council Policy regarding Boarding Houses and meeting demand for affordable rental housing in the Northern Beaches Local Government Area in support of the submission that the Proposed Development is in the public interest. At tabs 21 to 23 in Exhibit B, the Applicant's Bundle of Documents filed 16 September 2020 there are the following documents: 1. Northern Beaches Affordable Housing Needs Analysis dated December 2016; 2. Northern Beaches Council Policy Affordable Housing dated 28 August 2018; and 3. Northern Beaches Council Affordable Housing Policy Action Plan.
I have read these documents and note that one of the principles adopted by the Respondent is embedding affordable housing in Council's strategies, plans and policies and action 8 recognises that affordable rental housing is essential social and economic infrastructure for the Northern Beaches in Council's land-use planning strategies, plans and policies.
I have considered the public interest and I accept the opinion of the experts that the particulars of this contention have already been addressed in the Joint Export Report and that the public interest contention warrants no further consideration in the determination of the Proposed Development.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application No. DA2020/0090 seeking development consent for the Demolition of the existing structures at 20 Westminster Avenue, Dee Why (the Site) and construction of a three (3) and four (4) storey split level boarding house containing twenty-two (22) double rooms and basement parking, Earthworks and excavation, Associated civil infrastructure, including on-site stormwater detention and a new driveway centrally located at 20 Westminster Avenue, Dee Why NSW, legally identified as Lot 15 DP 9125 (676m2) and Lot A DP 392346 (105m2) is approved subject to conditions of consent filed 29 January 2021 and Annexed marked 'A'. 3. The exhibits marked 2 and B are to be returned.

Commissioner of the Court Annexure A (275772, pdf) Plans (6406875, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2021

(2004) 133 LGERA 363

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