Aplus Architecture Pty Ltd v Georges River Council

Statutory Setting

1. The site is zoned R3 Medium Density Residential under Kogarah Local Environmental Plan 2012 (KLEP). The zone objectives 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.
2. Boarding houses are a permissible use in the R3 zone.
3. Allawah Hotel is a locally listed heritage item under Schedule 5 of KLEP.
4. The proposal also relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
5. Kogarah Development Control Plan 2013 (KDCP) also applies.
6. Further particulars on the statutory setting are provided when I turn to the issues in contention.

The proposal

1. The proposal involves a seven-storey boarding house comprising: 24 self-contained boarding rooms, 1 self-contained boarding house manager's room, a communal living room, basement parking for 13 motor vehicles and 5 bicycles and 5 motorbikes.

Introductory remarks

1. It is reasonable to note at the outset that the proposal provides for a seven-storey building in a location where there are no other buildings of this height.
2. After amendments to the application, the remaining contentions, as pressed by Council, principally involved two highly related concerns: "compatibility with the character of the local area" and "bulk and scale" (otherwise put as "apparent bulk"). There were a number of objecting submissions from lay persons, relating to these, what I am calling, "principal" issues. There were also lay objections in relation to other matters which are considered later at [53]. Suffice to say here the experts engaged to give expert evidence in the hearing were satisfied that the proposal reasonably addressed the other submissions raised by objectors.
3. It is useful to spend a little time contextualising things to assist in consideration of these principal issues. First, I outline further relevant statutory and policy background. Then I provide some preliminary considerations to contextualise the scope of the primary issues.
4. I will also note here that two experienced experts gave town planning evidence in the proceedings: D Ryan for Council and D Haskew for the Applicant.

Further relevant particulars of SEPP ARH

1. Clause 29 of SEPP ARH includes certain "deemed to satisfy provisions" with which the proposal complies. Relevantly here these relate to "density and scale" and "building height".
2. Clause 29(1)(c) of SEPP ARH relevantly provides that: (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 - … (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 …
3. Residential flat buildings are permissible on the site. The existing maximum applicable floor space ratio (FSR) for residential accommodation is 2:1 under KLEP. Therefore, a consent authority must not refuse consent to development on the grounds of density or scale if the FSR of the development does not exceed 2.5:1. The proposed FSR is agreed at 2.45:1. Therefore the proposal cannot be refused on the grounds of density or scale.
4. Clause 29(2)(a) of SEPP ARH relevantly provides that: (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,
5. It is agreed among the parties that the proposal does not exceed the applicable 21m maximum building height permitted under KLEP. Therefore, the proposal cannot be refused on the grounds of building height.

Council policy process leading to current height and FSR controls

1. The Kogarah Council Business Paper to its Extraordinary Meeting 4 April 2016 provides an explanation of the development standards (FSR and building height) applying to the site. The former Kogarah Council had in and around 2016 taken steps to accommodate increased housing supply in the then local government area. According to the business paper report, included in Council's bundle of documents tendered into evidence (Ex 2 Tab 2), the intended housing supply increase was associated with meeting future needs (ibid p 52): "Regardless of a State imposed housing target, Council has a responsibility to plan for the future needs of its community. The initiatives incorporated into the new City Plan to increase housing supply are not considered to be excessive and they do not make provision for a target. Rather, they are focused on the provision of housing choice, diversity and improving affordability by increasing supply of housing, all of which meet the strategic objectives of our Community Strategic Plan."
2. The steps taken by the then Council included initiating amendments to KLEP to increase development potential in selected locations. The site's triangular street block was in its entirety selected as part of the lands for FSR and height control uplift.
3. The fact that the site and its triangular street block have greater FSR and maximum building height controls than do the R3 Medium Density zoned lands on the other side of Mona Street and Illawarra Road, and beyond to the west, south and east (which together I will forthwith call the "rest of the R3 lands"), can be seen as related to delivering on the intended housing supply increase.
4. That is to say, this policy decision, implemented through the mechanism of KLEP can be reasonably seen as distinguishing the site's triangular street block from the rest of the R3 lands. This is best understood from three diagrams included in Ex 1 which are reproduced below. They are extracts from KLEP's maps and relate to zoning, FSR and building height respectively. In each instance, the site is highlighted in red. Figure 1 - This extract from KLEP mapping shows the site's street block as including B2 lands along Railway Parade and the R3 lands across Mona and Illawarra Streets and beyond (Source: Exhibit 1 p 5) Figure 2 - This extract from KLEP mapping shows a maximum FSR of 2:1 applying to the site, the B2 lands have a maximum FSR of 2:1 and the rest of the R3 lands have a maximum FSR of 1.5:1 (Source Ex 1, p 6) Figure 3 - This extract from KLEP mapping shows a maximum building height of 21m applying to the site's street block and 15m applying to the rest of the R3 lands (Source: Ex 1, p 7)

Contextualising the evidence relating to the "character" and "apparent bulk" contentions

1. While there was no dispute that this well-located site is an appropriate location for a boarding house, housing reasonably thought of as more affordable than the norm (eg Ex 3 par 104), there was also some considerable disagreement between the parties. While the applicant and its expert were, of course, in support of the proposal, Council believed the proposed design of the building is not compatible with the local area, and as such its approval would not be in the public interest. Clause 30A of SEPP ARH has something direct to say on this matter: 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.
2. It follows for me that two questions need consideration when considering the principal issues before the Court here: 1. Where the emphasis might go when considering "the character of the local area", especially in regard to what might be observed today, and then mindful of the desired future character. 2. How "compatibility" should be understood and what weight should go to it in this particular instance.

Character of the local area

1. The planning experts had quite different opinions on what constituted "the local area" for the purposes of cl 30A of SEPP ARH.
2. In Appendix C to Ex 3, Mr Ryan identified the local area as certain land along Illawarra Street to the north-west up to Railway Parade and extending about 200m to the south-west. To the south-west two blocks extending past the lands fronting Noble Street to Woids Avenue (again about 200m) were included. I agree with Mr Ryan that these lands are "overwhelmingly" 3-4 storey apartment buildings, and that there is a certain "proportionality" to the development or height to width ratio. Mr Ryan seeks to align the site with this "local area" while distinguishing it from the rest of the site's triangular street block, seeing this block as a "secondary character" element (Ex 3 par 55): "The secondary character applies only to the block within which the development site is situated. This comprises the B2 Local Centre zoned land that contains the retail buildings fronting Railway Avenue and the rear or sides of those buildings fronting Illawarra and Mona Streets. The frontages of these buildings are not in the same visual catchment as the subject site and their sides/rears have more visual relevance to the subject site. These elements are residential or back of house facilities within buildings between 1 and 5 storeys."
3. Mr Haskew placed much more weight on the character of the site's triangular street block, and the land otherwise along the railway corridor than did Mr Ryan. Mr Haskew also placed importance on the desired future character mindful of the current controls, and the apparently strategic and purposive approach to their adoption by Council. That is, Mr Haskew directly referred to the particulars referenced at [23], above in his evidence (Ex 3, pars 22-31).
4. Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) is useful here where Senior Commissioner Roseth found at [23]: "… There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing …"
5. Mr Ryan did not contest Project Venture's findings but believed that the particular circumstances of this setting meant that there were significant constraints on development potential. Most relevant to me, he saw all of the sites within the site's street block as subject to constraints that are likely to limit their potential to "actually achieve the maximum height standard" (Ex 3 par 72): "I acknowledge that current development on the subject street block has notionally more development potential given the additional height and FSR available under the current controls. This is reinforced in this case by the fact that the consent authority cannot refuse this development on the basis of height if it complies with this maximum standard. However, I say notionally, because following more detailed analysis, I consider that all of the sites adjoining the subject site are subject to constraints that are likely to limit their potential to actually achieve the maximum height standard."
6. Both parties referenced design studies of the street block. Mr Ryan's work suggesting more constraint on development potential, Mr Haskew seeing less constraint.

Consideration

1. Although going too far afield with his local area definition (certainly, the perimeter of the area defined by him is entirely outside the visual catchment of the site), Mr Ryan is correct in his definition of the form of buildings in the site's visual catchment that are not within the site's triangular street block. This is in regard to building height and side setbacks and to a considerable extent landscaping.
2. However, I disagree with Mr Ryan that the site's triangular street block should be understood as a secondary character element. It is true that the site's frontage is towards the R3 medium density land, but the presentation of the site's block along Illawarra Street (ie the north-eastern side) is very different from that on the other side of the street (ie south-western side). It is more utilitarian (mainly comprising the service area of other buildings), and less "proportional". If the site is the origin point from which the "local area" might be defined for the purposes of this evaluation, these factors warrant considerable attention.
3. Turning to the question of whether it is future character that should be the basis of the compatibility test, it is clear that the height and FSR controls applying to the site, at least, "envisage" a different character. This is the literal test in Project Venture introduced above at [31]. It seems to me reasonable that in the current setting, it would be for the Council to prove up that the "envisaged character" would be thwarted by practicalities. Mr Ryan's evidence went some way on this path, but there was at least as convincing evidence from Mr Haskew, including in cross-examination, that there were redevelopment prospects to the immediate north-west (the line of retail premises backing onto Illawarra Road) and in the environs of the Allawah Hotel, albeit the process of change was more likely to be slow than fast. I agree with Mr Haskew that the site is within an immediate and broader locality which is "in a slow a transition towards additional height and density" (Ex 3 par 30), and that considerable weight can go to the desired future character when considering the compatibility question.

Scope and limits to "compatibility" question

1. The concern here is how the cl 30A consideration should be understood and what weight should go to the comparative test in this instance. There seem to be two points which warrant attention.
2. The first point concerns the relationship between cll 29 (deemed to comply standards) and 30A (comparative test) of SEPP ARH. Considerable attention was given by experts and parties to the findings of then Commissioner Dixon in Kevin Gregory and Patricia Gregory v Central Coast Council [2017] NSWLEC 1400 (Gregory) at [24] in regard to the relationship between cll 29 and 30A of SEPP ARH. Pars 17-20 and 24 were among those of relevance, but for my purpose I can summarise things with the following quote from [19]: "…it does not follow that compliance with the standards referred to in cl 29 requires density, floor space and height to be disregarded for the purposes of a consideration of the 'design of the development' required under cl30A."
3. I think it entirely in accordance with a plain reading of these provisions to agree with Gregory. That is, that (notwithstanding compliance with the relevant deemed to satisfy provisions of cl 29 relating to height and FSR) considering "the design of the development" for the comparative exercise under cl 30A, would not in this instance disregard matters relating to building height or building density and scale.
4. The second point goes to how the cl 30A test might fit into an overall evaluation. Council's position is that it is "pivotal to the operation of (SEPPARH)" (oral closing submissions). The circumstances here, where the proposal is at or near the maxima in regard to both height and FSR controls would, according to Council warrant particularly scrutiny, with cl 30A "tempering" (oral closing submissions) any otherwise attempt to have numerical controls dictate design towards an optimisation of yield.
5. The applicant, on the other hand, emphasises that any comparative test in cl 30A is only "a consideration", also using Gregory at [24] to support its argument that a consent authority may approve a development even if the design is not compatible with the character of the local area.

Consideration

1. I am not convinced by Council's argument on cl 30A, that it be seen as having a special weight or that it be seen as "pivotal". There was no evidence presented on any prioritisation of the controls in SEPPARH. The provision sits as a consideration in the balancing out of an evaluation of the proposal under s 4.15(1) of the EPA Act. A plain reading suggests cl 30A sits in SEPP ARH to ensure there is consideration of compatibility with the character of the local area in this evaluation.

Evaluating the proposal including consideration of whether the design of the development is compatible with the character of the local area and the apparent bulk of the building

1. The first point is to refine the point of attention in regard to the comparative test in cl 30A ("whether the design of the development is compatible with the character of the local area"). The two aspects of compatibility identified for separate attention in Project Venture at [24] are well known. These are (1) physical impacts on surrounding development and (2) visual impact. It was agreed that the proposal had addressed physical impacts relating to noise, overlooking, overshadowing and the like (explained at [64]). So the point of attention relates to visual appearance compatibility.
2. Project Venture also assists with the interpretation of the term compatible at [22]: "22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve."
3. Mr Haskew argued the proposal provides for a positive response in regard to the cl 30A test. As outlined above, he argues future character is a more appropriate consideration than existing character acknowledging his expectations of slow transition of the locality. He believes the proposal is "perfectly aligned with the desired future character of the locality" (Ex 3 par 40). His reference point was as follows: "I am mindful that the Council has made a strategic planning decision, in the relatively recent past, to increase height and FSR development standards with the specific purpose of encouraging new development in order to increase housing supply and affordability."
4. Mr Haskew also believed the proposal was compatible with the existing character. He placed weight on the fact of the corner site, which meant extended boundaries and a distance-based (ie road reservation-based) cushioning of physical and visual impacts. He also referred to the Local Character Study accompanying the development application. That is, the architectural expression in response to context, or the "design and materiality" of the proposal. In oral evidence, Mr Haskew spoke to the proposal's architectural presentation and its response to findings of the character study accompanying the development application (Ex D). The building was "slender" (to Mona Street) with "strong verticality", "segmented building proportions" (ie middle, lower, upper with different definitional features different on either street façade). It involved appropriate levels of fenestration, balconies and a setback (reduction in massing) at the top level on the Illawarra Street (ie wider) frontage.
5. Mr Ryan believed the building would stand out visually for the foreseeable future. He emphasised that this first development under the new planning regime should be a good example, something relatively small of scale and narrow would be preferred, rather than the extended massing proposed to Illawarra Street, especially. Mr Ryan acknowledged that the design had improved since the original lodgement ("monolithic, dark and commercial") and that amendments meant the proposal presented as a more residential building, with the balconies as positive feature, although some were not useable and thus presented a degree of artificiality. The proposal remained "top heavy" and would stand out in the local area, in a negative sense, and potentially for a long period of time.
6. Council suggested visual compatibility and the perceived bulk of the building would be partially addressed at least by removing one storey from the development. Mr Haskew believed this would be a negative step, as it would, especially if it were to set new standards into the future, unreasonably prejudice the ambitions of Council's housing supply objectives, for no justifiable reason.

Consideration

1. There is certainly agreement between the parties that the proposal would be visually different from the visual presence embodied in the R3 lands across Mona and Illawarra Streets. For Mr Ryan this is what matters. If the test were simply whether the building would be in visual harmony with the buildings across Illawarra Street (in particular) the proposal would be on rocky grounds. However, for the reasons explained above (at [34]-[36] and [42]) this is not the test for this application.
2. This site sits within a block which, in a physical and planned sense, is part of the (somewhat jagged) corridor along the rail line planned for more intense development. Mr Haskew is correct to give emphasis to the current controls and their documented purpose. That is to say, the planning intentions are clear. They relate to the important task of provision of more housing for people, including more affordable housing in locations such as this (ie near services and transport). The relevant planning instrument (KLEP) has delivered upon that intention through the uplift in FSR and building height controls applicable to the site. KLEP's provisions do not, in this instance, provide for a kind of "blending in" via some transitional heights and FSR provisions, which has some relevance to me when I consider the question of congruence with the rest of the R3 land, which arose in the evidence. While the application relies on the 0.5:1 FSR bonus embodied in SEPP ARH, it meets KLEP's height controls and most of the rest of the site's triangular street block already enjoys a 2.5:1 FSR.
3. There is some natural and obvious differentiation of the site from the rest of the R3 land, already, that has weight here and has been identified in the planning which led to the current controls. Important is the planning logic concerned with providing more housing to meet need, and the desirability that this occur in locations with physical proximity to the station and shops, which this site enjoys moreso than the wider R3 lands. For everyday people experiencing the visual incongruence, most particularly perhaps persons viewing from the Illawarra Road and beyond, the building would be seen when looking up the hill towards the station and shops, that is, the area already identified as the local centre of activity. It follows, for me, that there is considerably greater acceptability of difference in this block when compared to the rest of the R3 lands. While a considerably taller building (such as that proposed here) might not meet a test of visual congruence, the siting of the building here can be seen as having a rationale, which for me has considerable weight when I consider the question of design compatibility.
4. I accept Mr Haskew's evidence in regard to the building's design and materiality. Possibly in large part due to the efforts of Council, the architectural presentation of the building appears to me as of reasonable quality.

Other issues

1. Objecting submissions raised a number of concerns apart from those addressed above. Council referenced these objections in a contention referenced as "public interest". I interrogated the experts in regard to the following additional matters raised in objecting submissions: overshadowing, visual and acoustic privacy, parking and concerns relating to antisocial or harmful behaviour. In each instance, and mindful of New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61]-[64] (per Lloyd J), I was satisfied with the responses provided by the experts that these issues had been adequately addressed or were not pertinent to the application's evaluation.

Conclusion

1. For the reasons outlined above it is appropriate to grant consent to the application. The orders which follow include granting leave for further amendments to the application mindful of some detailed changes agreed during the course of the hearing.

Orders

1. The orders of the Court are: 1. Leave is granted to amend the application to accord with the plans referenced at Condition 1 of Annexure A. 2. The appeal is upheld. 3. Development Application No. DA2019/0608 for demolition works and construction of a boarding house development at 5 and 5A Mona Street Allawah, is approved, subject to the conditions of consent at Annexure A. 4. The exhibits are returned with the exceptions of Exhibits 1 and B-D.

Commissioner of the Court Annexure A (432077, pdf) Architectural Plans (6733192, pdf) Landscape Plans (5752907, 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: 21 May 2021