ACN 603 361 940 Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2018-11-16

Judgment

COMMISSIONER: ACN 603 361 940 Pty Ltd (the Applicant) has appealed the deemed refusal of the Northern Beaches Council (the Respondent) of its development application DA2017/1022 for the demolition of existing structures and the construction of a 2-storey boarding house with basement car parking (the proposed development) at 130 Frenchs Forest Road, Frenchs Forest (the Subject Site).
The proposed development includes: 1. removal of all vegetation on the Subject Site; 2. excavation of the site to a depth of approximately 3m for a basement car park with 10 car parking spaces, 4 bicycle parking spaces, and 5 motorcycle spaces, a storage room, service room, garbage room, bulky goods waste room, lift core, and a WC; 3. construction of the boarding house containing 18 rooms (17 boarding rooms and one manager's room), one communal living room, a paved outdoor area, service areas, access stairs and a lift core.
The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Environmental Planning and Assessment Act 1979

The objects of the 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.
Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. .

State Environmental Planning Policy (Affordable Rental Housing) 2009

The application is subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), the aim of which 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.
The following provisions relating to boarding houses within SEPP ARH are of particular relevance in this appeal: 1. Clause 29, which provides: 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 carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 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). (5) In this clause: social housing provider does not include a registered community housing provider unless the registered community housing provider is a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth. 1. Clause 30, which provides: Standards for boarding houses (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. 1. Clause 30A, which concerns the character of the local area and which provides: 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.

Warringah Local Environment Plan 2011

Development on the Subject Site is subject to the provisions of WLEP, and under which the Subject Site is zoned R2 Low Density Residential.
The objectives of the R2 zone are to: • provide for the housing needs of the community within a low density residential environment. • enable other land uses that provide facilities or services to meet the day to day needs of residents. • ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
Within this R3 zone, a boarding house, such as is proposed by the Applicant, is a permissible development.
The following further provisions of WLEP are also of relevance in this appeal: 1. Clause 4.3, which concerns the height of buildings, and the objectives of which are: (a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development; (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access; (c) to minimise any adverse impact of development on the scenic quality of Warringah's coastal and bush environments; (d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities. 1. The Subject Site has a maximum height of building control of 8.5m and the proposed development is compliant with this control.
There is no floor space ratio (FSR) control applicable to the Subject Site under WLEP. The FSR of the proposed development is 0.79:1.

Warringah Development Control Plan 2011

Development on the Subject Site is subject to the provisions of WDCP, the purpose of which is to provide more detailed provisions than the WLEP for development in Warringah.
The following provisions of WDCP are of particular relevance in this appeal: 1. Control B1, concerning wall heights, which requires that wall heights are not to exceed 7.2m from ground level (existing) to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas wholly located within a roof space). 1. The proposed development complies with this control. 1. Control B2, concerning the number of storeys, and which permits developments of up to 2 storeys on the Subject Site. 1. The proposed development complies with this control. 1. Control B3, concerning side boundary envelopes, and which requires that any building on the Subject Site must be sited within a building envelope determined by projecting planes at 45 degrees from a height above ground level (existing) at the side boundaries of 4m. 1. The proposed development complies with this control. 1. Control B5, concerning side setbacks, and which requires that development on the Subject Site is to maintain a minimum setback from side boundaries of 0.9m, and that 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. 1. The proposed development complies with this control. 1. Control B7, concerning front boundary setbacks, which provides that development on the Subject Site is to maintain a minimum setback to road frontages of 6.5m. The front boundary setback area must also be landscaped and generally free of any structures, basements, car parking or site facilities other than driveways, letter boxes, garbage storage areas and fences. 1. The proposed development complies with this control. 1. Control B9, concerning rear boundary setbacks, and which requires that development on the Subject Site is to maintain a minimum setback to rear boundaries of 6m, and that the rear setback area is to be landscaped and free of any above or below ground structures. 1. The proposed development complies with this control. 1. Control D1, concerning landscaped open space which requires a minimum 40% area of landscaped open space on the Subject Site as per the calculation method provided within the control. 1. The proposed development complies with this control.

Contentions

At the commencement of the hearing, the Parties agreed that the proposed development was compliant with: 1. the provisions of WLEP with respect to height, noting that there is no control relating to FSR applicable to the Subject Site; 2. the provisions and controls of WDCP in relation to wall heights, setback controls (front, rear and side), side boundary envelopes, landscaped open space.
The Respondent said that, as a consequence of the agreed submission at [25], it did not press certain contentions in relation to setbacks, privacy and compliance with the provisions of WDCP.
During opening submissions, the Parties said the proposed development complied with the provisions of cl 29(2) of SEPP ARH in relation to landscape area, solar access, private open space, parking, and accommodation size, and that none of these could form a basis for refusal of the Applicant's development application.
The Parties also agreed that the proposed development was compliant with the standards for boarding houses set out in cl 30(1) of SEPP ARH, which are preconditions in relation to which I must be satisfied before consent can be granted to the proposed development.
As noted above at [17(3)], under the provisions of cl 30A of SEPP ARH, a consent authority must not consent to boarding house development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
The Parties submitted that they did not agree as to whether the character of proposed development was compatible with the character of the local area. This is a jurisdictional matter under cl 30A of the SEPP ARH in relation to which I must be satisfied, before the power to grant consent can be enlivened.
Of particular relevance to the Court's consideration of the compatibility of the proposed development with the character of the local area is the tension discussed above at [11], between the existing and potential future characters of the area.
The Parties further confirmed that there remained a contention in relation to the side elevations of the proposed development and whether these were compatible with the character of the local area.
Consequently, the principal question requiring resolution in this appeal is: 1. is the proposed development compatible with the character of the local area?
There are two subsidiary questions to be resolved in relation to this principal question, as follows: 1. what weight that the Court should afford the NBHPSP in its considerations concerning the compatibility of the proposed development with the character of the local area; 2. are the side elevations of the proposed development compatible with the character of the local area?

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

The Parties agreed that this principal question would be resolved through the consideration of two subsidiary questions identified above at [34], and I will consider each of these in turn.
The Court was assisted in its consideration of these questions by the submissions of the Parties together with the evidence of the following expert planners: 1. Mr Michael Haynes (for the Applicant); 2. Mr Daniel Milliken (for the Respondent); 3. Mr Phil Jemison (for the Respondent).
These expert witnesses provided a joint expert report, which was tendered as evidence during the hearing, complemented by testimony provided during the hearing.

What weight that the Court should afford the NBHPSP in its considerations concerning the compatibility of the proposed development with the character of the local area?

The background and status of the NBHPSP in relation to the Subject Site is provided above (at [6] to [9]).
The expert planners confirmed in their testimony that they agreed that the Applicant's proposed development complied with all controls under the statutory regime currently applicable to the Subject Site and contained within SEPP ARH, WLEP, and WDCP.
The Respondent had contended that, notwithstanding its compliance with these controls, the proposed development: 1. would compromise the ability to achieve the vision of the NBHPSP; 2. would not achieve the desired future character for the Northern Beaches Hospital Precinct; 3. would have negative implications on local development contributions funding, and special infrastructure contributions funding, proposed for the Northern Beaches Hospital Precinct; 4. would undermine the delivery of long-term affordable rental housing managed by a registered community housing provider.
In response, the Applicant said that: 1. the NBHPSP was not a draft environmental planning instrument (EPI). As a consequence, the Applicant submitted that the NBHPSP was not a matter for consideration in evaluating the proposed development in relation to the provisions of s 4.15 of the EP&A Act 2. exhibition of a draft EPI to give effect to the NBHPSP had not yet occurred and implementation of any such EPI was not, in any case, certain nor imminent; 3. even if the Court afforded weight to the NBHPSP in its evaluation of the proposed development, the proposed boarding house was consistent with the intent of the plan and was compatible with the desired future character of the area.
In the joint report of the expert planners, Mr Jemison had said that the NSW State Government had prepared relevant technical studies to inform the preparation of a precinct plan for the Frenchs Forest area, 'in accordance with' the NBHPSP endorsed by Council, and that the exhibition of a precinct plan and accompanying statutory planning documents (including an amending SEPP, a DCP and a contributions plan) was imminent.
In response to questions from Mr Nash, for the Applicant, Mr Jemison confirmed that: 1. the planning process for the Northern Beaches Hospital precinct was a six stage process, and that this process had recently moved from Stage 2 to Stage 3; 2. the completion of Stage 2 of that process had required a six-month period; 3. while exhibition of the precinct plan and accompanying statutory planning documents may be imminent, the adoption of development controls for the precinct that may be contained in those documents was not certain nor imminent, as these would be subject to submissions received during exhibition, and other factors; 4. notwithstanding the endorsement of the NBHPSP by the Northern Beaches Council, the plan had not yet been used in the assessment of any other development applications by Council; 5. boarding houses were likely to be a permissible use under a proposed future R3+ zoning proposed for the Subject Site; 6. given that any future controls to flow from the precinct plan would provide maximum controls for the area, the proposed development was likely to satisfy any height, FSR or permissibility controls within a future precinct plan; 7. his principal concern was that approval of the proposed development would not facilitate achievement of the following elements of the future streetscape along Frenchs Forest Road proposed within the NBHPSP: 1. the provision of an activated ground floor; 2. the likely front setback controls on the Subject Site; 3. the provision of a footpath within the future town centre environment; 1. while the structure plan set out a twenty year vision for the Northern Beaches Hospital precinct, the Subject Site fell within Stage I of the envisaged NBHPSP development timeframe, and, as a consequence, the anticipated delivery timeframe for the NHBPSP on the Subject Site was shorter than for other areas within the precinct; 2. in his opinion, the NBHPSP merited weight in the evaluation of the proposed development, although he said that this should not override the controls in WLEP; 3. the Applicant's proposed development was not compatible with the desired future character of the local area.
In response to questions from Mr Gough, for the Respondent, Mr Jemison added that, should the proposed development be approved, it would, in his opinion, constrain the achievement of the vision within the NBHPSP as it would limit opportunities for the consolidation of lots within the area that might be required to facilitate delivery of the outcome envisaged by the plan. He said that this was based on his assessment that the proposed development in this appeal would have a likely useful life of between 10 and 15 years.
In response to the above points, Mr Haynes said that, in his opinion: 1. there was a high demand for boarding house accommodation in the area around the Northern Beaches Hospital, and the proposed development would assist in responding to that demand; 2. the Subject Site had an area of more than 1000m2, and as such, would not frustrate the delivery of outcomes in the NBHPSP, and would not require consolidation with another lot or lots to facilitate development under the Structure Plan; 3. the desired future character of the local area had yet to be defined, and was not easily discernible from the NBHPSP; 4. market forces would drive changes in land use on the Subject Site, and in the surrounding area within the Northern Beaches Hospital Precinct, whether under the current zonings or future zonings applicable within the precinct; 5. the form of future development within the precinct would be influenced by numerous factors, including the controls applicable to land from time to time. He said that these would be considered by developers as they took decisions with respect to development proposals within the Northern Beaches Hospital precinct over time; 6. the Applicant's proposed development was compatible with the desired future character of the local area.
The experts also said during the hearing that, other than in relation to the matters addressed separately by the second subsidiary questions below at [61] to [72], the proposed development was compatible with the existing character of the local area.
This testimony confirmed the evidence of the expert planners within their joint report that the presentation of the proposed development at its frontage to Frenchs Forest Road was compatible with the existing character of the local area and did not have an unreasonable visual impact on the southern (opposite) side of Frenchs Forest Road.
In addition to the testimony of the expert witnesses, I have also considered the submissions of the Parties in relation to what weight the Court should afford the NBHPSP in relation to the compatibility of the proposed development with the character of the local area. This has included consideration of the findings with certain cases that the Parties drew to the Court's attention.
I have reflected on relevant principles established by the Court as concerns the weight to be afforded planning policies adopted by councils in determining appeals, notably: 1. the comments of Mason P in the decision of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 (referred to hereafter as Terrace Holdings), in which His Honour said (at [81]): "In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters." 1. the principles identified by McClennan CJ in Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472, in which His Honour, seeking to provide further guidance to applying the observation of Mason P identified above (at [(1)]), said: "To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it."
Based on these considerations, I have concluded that: 1. the NBHPSP, while representing a matter for consideration in this appeal as it is of relevance under sections 4.15(b), (c) and (e) of the EP&A Act, should not be afforded significant weight in my determination of this appeal because: 1. although the NBHPSP has been endorsed as a policy by Council, and has been created on the basis of research and public consultation, thus reflecting the first of the matters of relevance identified by McLennan CJ, it nevertheless does not reflect the others matters identified by the former Chief Justice, specifically: 1. it has only been adopted recently by Council, in August 2018; 2. it has not been the subject of any review as to its effectiveness; 3. it has not been used by Council in relation to its decision making concerning the determination of other development applications; 4. it is not yet compatible with the objectives and provisions of any environmental planning instruments and development control plans; 1. finalisation of the plan, and the controls that would give effect to it, is not imminent nor certain, because the precinct plan and associated statutory controls have yet to be exhibited, and their final form will only be confirmed following their exhibition, consideration of submissions, and further consideration by the DPE and Minister, all of which actions are not imminent;
The Respondent drew to the Court's attention the case of Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253 (referred to hereafter as Aldi Foods) concerning conflict between a proposed development and a masterplan. The Applicant said that the NBHPSP should be regarded as a masterplan and in that situation it merited consideration in this appeal, consistent with the findings of the Talbot J in Aldi Foods.
In response, the Applicant submitted during the hearing that the circumstances of Aldi Foods differed from those in this appeal as the master plan that was the subject of that case had formed part of a draft DCP which had been exhibited. As noted above at [42], the NBHPSP, while endorsed by Council, has yet to be given effect through the drafting an environmental planning instrument and a draft DCP. Additionally, the timing for production, exhibition and adoption of that documentation is neither certain nor imminent.
Having considered the submissions of the Parties on this point, I agree with the submission of the Applicant that the circumstances considered by His Honour in Aldi Foods differ from those in this case, and do not support the NBHPSP being afforded significant weight in my considerations in this appeal, including in the evaluation of the Applicant's development application.
The Respondent also drew to the Court's attention the case of Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 in which a former Senior Commissioner of the Court, Roseth SC, considered the role of non-statutory regional planning policies in relation to statutory local plans, and in which the then Senior Commissioner had said (at [25] and [26]): "25 The role of regional planning policies is to guide the development of a region, such as the Sydney metropolitan area. One of their functions is to inform and influence statutory plans for the local areas of a region. Regional planning policies provide a sense of purpose and direction to local plans; they are, as it were, the glue that binds local plans together. The fact that they are non-statutory is not an indication of their subservience to statutory plans. Planning policies usually do not lend themselves to statutory expression because they do not relate to specific parcels of land and do not contain numerical development standards. This fact, however, does not mean that they have no relevance to individual development applications, particularly those that have impacts extending beyond the local area. 26 Where the provisions of an environmental planning instrument are clear, unequivocal and do not require value judgment (for example numerical development standards or zonings where the character of a use is not in dispute), they take precedence over non-statutory regional planning policies. However, where those provisions can be applied only on the basis of value judgments (for example, where the character of a use is in dispute, a development standard is to be varied, or where imprecise terms like "appropriate", significant", "detrimentally affect" or "ecological sustainability" need to be given meaning in the context of a development application, non-statutory regional planning policies provide the background against which those value judgments should be made…"
The Respondent said that, because the matter in consideration in this appeal was a dispute concerning character, the NBHPSP should provide the background against which the consideration of compatibility of the proposed development with the character of the local area should be undertaken.
I agree with the Respondent on this question, but consider that my assessment of the weight to be afforded the NBHPSP in this appeal (as discussed above at [48] to [50] has reflected precisely the suggestion of the former Senior Commissioner, and the NBHPSP has indeed provided the background against which my consideration of compatibility of the proposed development with the character of the local area has been be undertaken.
In summary, based on my finding above at [50(1)(a)] that the NBHPSP should not be afforded significant weight in my determination of this appeal, I have concluded that the proposed development is acceptable in relation to my consideration of its compatibility with the desired future character of the local area.
In relation to this, I have also concluded that approval of the proposed development would not constitute a greater constraint to the achievement of a revised long term vision for the Northern Beaches Hospital Precinct than any other building current located in the Precinct.
It is my assessment that all owners of land within the Northern Beaches Hospital Precinct, including the Applicant in this appeal, will be subject to the same planning regime directions and incentives to align with any desired future character for the precinct that would be implemented once the NBHPSP and supporting statutory documents are approved for implementation. As agreed by the expert planners in their evidence in this appeal, and as observed earlier in this judgment, the timing of approval for any statutory controls to give effect to the NBHPSP is neither imminent nor certain.
As noted earlier (at [46]), the expert planners had also greed that, other than in relation to the second subsidiary question concerning the compatibility of its side elevations, the proposed development was compatible with the character of the local area. This second subsidiary question is discussed below.

Are the side elevations of the proposed development compatible with the character of the local area?

The Parties drew to the Court's attention, the considerations of former Senior Commissioner Roseth in the matter of Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (referred to hereafter as Project Venture), in which the Senior Commissioner had stated that: "24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping."
The expert planners, within their joint report, had agreed that the proposed development was compliant with all relevant provisions and controls of WLEP and WDCP. As a consequence, and as noted earlier at [26], the Respondent had advised that certain contentions that had been raised in the appeal were no longer pressed. These included contentions relating to setbacks, privacy and landscaping.
Also as noted earlier at [45(2)], the Mr Haynes had agreed that it would not be necessary for the Subject Site, which has an area of more than 1000m2, to be consolidated with another lot or lots in order for it to be developed. In response to a question from Mr Nash, for the Applicant, Mr Jemison confirmed that: 1. given that the Subject Site was in a single ownership, it was not likely to lead to fragmentation issues within the Precinct; 2. he was unaware of any consolidation of lots that had taken place within the area of the Subject Site up to the date of the hearing; 3. Northern Beaches Council had not produced a consolidation plan for the precinct in response to the production of NBHPSP.
I have concluded (at [58]) that the proposed development is unlikely to give rise to constraints on the development potential of surrounding sites within the Northern beaches Hospital Precinct.
On the basis of the matters addressed at [62] to [64] I conclude that, in response to the first question posed by Roseth SC in Project Venture, the proposed development's physical impacts on surrounding development are acceptable.
In relation to the second of the questions posed by the former Senior Commissioner in Project Venture, the expert planners had also agreed in their joint report that the character of the proposed development at its front presentation to Frenchs Forest Road was compatible with the existing character of the area, and would not have an unreasonable visual impact on the southern side of Frenchs Forest Road.
However, the expert planners held differing opinions in relation to the compatibility of the side elevations of the proposed development with the character of the local area, particularly in relation to the character of adjacent residences in Bluegum Crescent.
During his testimony, Mr Milliken said that he agreed that the Applicant's proposed rear setbacks, of some 17m, was sufficient to mitigate any physical impacts arising from the proposed development. Nevertheless he said that, in his opinion, the presentation of the side elevation of the proposed development would be jarring to observers from adjacent properties, as well as to observers passing in front of the Subject Site.
Mr Milliken agreed that the proposed landscaping treatments would mitigate some of the character impacts from those side perspectives, but he said that further mitigation was required to fully address his concerns relating to the compatibility of the proposed with the character of the local area.
Mr Milliken proposed that his concerns could be addressed by combining rooms 13 and 14 within the proposed development and increasing the side setback to these rooms and so increase the articulation along the side elevation of the proposed development as viewed from the adjacent properties in Bluegum Crescent.
Mr Haynes did not agree with Mr Milliken's proposal, and said that, in his opinion, the side elevations of the proposed development: 1. were sufficiently well articulated; 2. were of a minimum of 2m width, and exceeded the applicable side setback controls in WDCP, 3. included landscaping treatments that exceeded the relevant controls for the Subject Site; and 4. did not give rise to any privacy impacts in relation to the adjacent properties.
Having considered the testimony of the expert planners, I prefer the submission of Mr Haynes in relation to the side elevation of the proposed development, and agree with him that it is compatible with the character of the local area, because: 1. as noted in the joint report of the experts, the height of the wall on the side elevations is compliant with the relevant controls in WDCP; 2. the side wall does include articulation that breaks up its presentation to adjacent properties; 3. the landscaping proposed, which is compliant with the relevant controls within WDCP, will aid in mitigating any visual impact of the proposed development along its side elevations.
Therefore, on the basis of the above considerations, together with my conclusions at [57] and [72], and the evidence of the expert planners noted at [62], I am satisfied that the requirements of cl 30A of the SEPP ARH have been addressed, and the jurisdictional pre-requisite within that provision concerning the compatibility of the proposed development with the character of the local area is satisfied.

Further considerations

Following the conclusion of the hearing, the NSW DPE placed on public exhibition an Explanation of Intended Effects (EIE) in relation to a proposed amendment to SEPP ARH which would limit the number of boarding rooms in a boarding house development in the R2 zone to a maximum of 12 boarding rooms.
As noted above at [2(3)], the Applicant's proposed development would contain a total of 18 rooms, including 17 boarding rooms and one manager's room.
In response to the exhibition of the EIE, both Parties provided supplementary submissions for my consideration, and in which: 1. the Respondent said that: 1. the proposed development would offend the numerical standard exhibited within the draft EIE; 2. the provisions of the final EIE would not be the subject of any savings or transitional provisions as the exhibited EIE document noted that "the EIE does not propose to amend any other provisions of the Affordable rental Housing SEPP". 1. the Applicant said that: 1. the proposed amendment to SEPP ARH is not imminent or certain, as referred to in the case of Terrace Holdings; 2. the proposed amendment has not been based on prior studies or consultation; 3. the exhibition of the proposed amendment closed on 19 December 2018, and the outcomes of that exhibition should not be pre-empted; 4. the final form of the amendment would be subject to the Government's consideration of submissions, which may change the proposed numerical controls within it, and may lead to the inclusion of savings or transitional provisions; 5. given the fact that the proposed amendment is not imminent or certain, primacy should be given to the provisions and controls within WLEP and WDCP in the Court's determination of the Applicant's proposed development.
I have considered the submissions of the Parties on this matter, and have decided that I prefer the Applicant's submission in relation to the proposed amendment to SEPP ARH as exhibited following the conclusion of the hearing, for the reasons contained within the Applicant's submission above at [76(2)].
I agree with the Applicant that: 1. any amendment to SEPP ARH following the conclusion of the exhibition period on 19 December 2019 is not imminent and certain, and 2. while this is a matter for consideration in the evaluation of the Applicant's development application, it does not merit significant weight in that evaluation.

Conclusions

Having considered the submissions of the Parties, and the evidence of the expert planners, I am satisfied that the proposed development: 1. is compatible with the character of the local area to the extent that this can be ascertained from current planning controls applicable to the Subject Site and surrounds; and 2. is not antithetical to the achievement of the vision of the NBHPSPS, and as a consequence, the achievement of any desired future character that may flow in time from that document.
I have also concluded that: 1. the requirements of cl 30A of SEPP ARH, which are a precondition to the grant of consent to the proposed development, are met; 2. the proposed development meets the provisions of cl 29(1) of SEPP ARH, and none of the can be used as a reason for refusal of the Applicant's development application; 3. the proposed development fulfils the requirements of cl 30(2) of SEPP ARH; 4. the Applicant's proposed development is compliant with the relevant provisions of WLEP and WDCP; 5. the proposed development is in the public interest; 6. the Applicant's development application for the demolition of existing structures and the construction of a two-storey boarding house, with basement car parking, at 130 Frenchs Forest Road, Frenchs Forest should be approved.

Orders

The orders of the Court are: 1. The Applicant is granted leave to rely on the amended plans referred to in Annexure 'A' to this judgment; 2. The appeal is upheld; 3. Development Application DA DA2017/1022, as amended, for the demolition of existing structures and the construction of a boarding house with basement car parking at 130 Frenchs Forest Road, Frenchs Forest, is determined by approval, subject to the conditions at Annexure 'A'; 4. The exhibits are returned, except for Exhibits A, C and 1. ………………………. Michael Chilcott Commissioner of the Court Annexure A

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: 18 January 2019

(2003) 129 LGERA 195

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Judgment (14 paragraphs)

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Cases Cited (5)

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