Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council

Approach to the proceedings

1. It is relevant to record at the outset that, in accordance with its usual practice at the time, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 November 2019 and at which I presided.
2. Prior to the commencement of the conciliation conference, I attended the onsite view at which a number of public submissions were heard. In the company of the parties and the experts, I was also taken to the rear of the site where my attention was drawn to the proximity of adjoining properties, including a number of openings in Nos 1A and 3 Ernest Street North that are the subject of contentions, and to the residential flat building at 246-248 Lakemba Street.
3. Following the onsite view, the parties continued conciliation discussions. However, as resolution was not reached, the conciliation conference was terminated, and the matter was subsequently listed for hearing and the parties consented to me hearing the matter.
4. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court's website. Consistent with the Pandemic Policy, the Court arranged for a one-day hearing with the parties to be conducted via MS Teams.
5. During the preliminary stages of the proceedings, the parties agreed that reports on which the Applicant relies as to compliance with the National Construction Code (NCC) (Exhibit D), and an accessible path in the event of emergency escape (Exhibit H) contain, on the face of it, information that is not consistent with the amended plans. In particular: 1. Firstly the area of habitable space on Level 2 of the proposed development said to achieve a minimum of 2400mm ceiling height on Drawing No. 1601 (Exhibit L) in 'Double Room 2-04' illustrates an area that is not applicable to single boarding rooms on Level 2, and when applied to the habitable space in those single rooms, may not achieve the minimum area of two-thirds as required by Provision 3.8.2.2(e)(i)(A) of the NCC. 2. Secondly, the Respondent maintains that the application does not identify an accessible path of travel in case of emergency for occupants with a disability.
6. As the matters above were not able to be addressed by Mr Robinson, I granted a short adjournment to permit the Applicant time to clarify the issues with relevant experts.
7. However, the Applicant was unable to do so and Mr Seymour accepted that the issues were relevant and necessary to the Court's determination of the matter and the Applicant sought a further adjournment of the proceedings to another day, noting that the Applicant may lose the benefit of the savings provision if an opportunity was not provided to clarify the issues raised at [8(1)] and [8(2)].
8. In considering the application for an adjournment, I noted the issues requiring clarification had been set out in Exhibit 1, filed on 15 May 2020, however as the application was unopposed by the Respondent and I considered the issues capable of being resolved, I granted the adjournment and listed the matter for short submissions and closing arguments on 17 June 2020.
9. When the hearing re-convened on 17 June 2020, the Applicant sought leave to rely upon amended plans that were not accompanied by a schedule of amendments, and appeared to contain amendment clouds that were somewhat similar to the plans at Exhibit A.
10. A schedule of amendments was then received from the Applicant's instructing solicitor by email and I granted a short adjournment to allow the Respondent an opportunity to review the scope of amendments set out in the schedule of amendments.
11. Following the adjournment, the Respondent noted that while the amendments appeared to reach beyond the purpose for which the first day of the hearing had been adjourned, there was no formal objection to the plans being amended as set out in the schedule of amendments, and I granted leave to enter the further amended plans as Exhibit Q.
12. A statement prepared by Design Right Consulting dated 16 June 2020 forms part of Exhibit Q and is in respect of the issue identified at [8(1)] to the effect that the amended plans show boarding rooms that comply with a ceiling height of 2400mm for at least 2/3rds of the area of the habitable rooms on the second floor.
13. Additionally, the following plans and other documents were tendered, without objection, and in substitution of documents already marked as identified below:

• A revised Fire Safety Report, in substitution for Exhibit E
• A revised Access Report, in substitution for Exhibit H
• A revised Survey, in substitution for Exhibit K
• A Fire Egress Path of Travel plan marked Exhibit N
• Application to Ausgrid, marked Exhibit O
• Updated BASIX Certificate, marked Exhibit P

The site and its context

1. The site is located on the south western side of Ernest Street North and is currently occupied by a single storey brick and tile residential dwelling with a carport, garage and detached shed at the rear.
2. The site is legally described as Lot 4 in DP 7294 and, relevantly, the site presents a frontage of 14.935m to Ernest Street North, with a total site area of 691.05m2.
3. The surrounding properties are typically single dwelling houses, dual occupancies and semi-detached dwellings. A residential flat building is located adjacent to the rear of the site. A shop with residence over is located on the corner of Ernest Street and Lakemba Street, and a place of public worship is located on the corner of Ernest Street and Railway Parade.

The issues

1. The background facts and contentions in this matter are identified by the Respondent in the Amended Statement of Facts and Contentions, filed with the Court on 15 May 2020 and marked Exhibit 1.
2. It is commonly held between the parties that the plans for which leave was granted at [(3)] resolve a number of the issues in contention. The remaining contentions may be summarised as follows:

• Contention 1 - The application is not supported by sufficient information to properly undertake the assessment required by s 4.15 of the EPA Act. I note here that the plans and other documents at [16] substantially resolve the matters set out in the particulars of Contention 1.
• Contention 2 - The proposed development is not compatible with the character of the local area.
• Contention 3 - The proposed development does not meet the lot size requirements and would isolate the adjoining property.
• Contention 4 - The proposed development has inadequate setbacks and will not comply with the minimum requirements proposed in an amended Development Control Plan.
• Contention 5 - The proposed development will have an unacceptable impact on the adjoining property in terms of solar access, and the communal living room.
• Contention 6 - Inadequate facilities and outlook have been allowed for the amenity of future lodgers.
• Contention 7 - The proposed development is not in the public interest as it will result in a building that provides poor amenity to future occupants, has an unacceptable impact on adjoining properties and does not contribute positively to the streetscape or character of the local area.

1. As the contentions relate to planning matters, the Court was assisted by Mr Andrew Robinson, town planner for the Applicant, and Ms Haroula Michael for the Respondent. The experts conferred in order to prepare a joint expert filed with the Court on 10 June 2020, marked Exhibit 2.

Public submissions

1. Public submissions in response to the original development application are contained in Exhibit 4, folio 447-472, including two petitions with 77 signatures.
2. The issues raised in the submissions may be summarised as follows:

• Scale, height and density of the development, including the number of occupants intended.
• Character of the development in the context of the street.
• Congestion and conflict arising from on-street car parking.
• Adverse amenity impacts for existing residents arising from the development, including privacy, noise and solar access.

1. A further eight (8) public submissions were received following notification of the plans for which leave was granted at [(2)], including a petition containing 50 signatures contained in Exhibit 4, folio 484-498.

The planning framework

1. The site is located within the R4 High Density Residential zone as set out in the relevant Canterbury Local Environmental Plan 2012, in which boarding house development is permitted with consent and wherein the objectives of the zone are in the following terms: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. The proposal is subject to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and it is common ground between the parties that the proposal complies with the following standards at cl 29 that cannot be used to refuse consent: • Floor space ratio • Building height • Private open space • Parking • Accommodation size
3. Subclauses 29 (1) and (2) of the SEPP ARH is in the following terms: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area) - (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if - (i) in the case of development 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. …
4. However, the Respondent submits that notwithstanding some aspects of compliance with cl 29 of the SEPP ARH, the proposal is an overdevelopment that is out of character with the local area of Ernest Street North as it offends the objectives and requirements of the relevant instrument and the amended DCP and so fails to meet the 'character test' set out in cl 30A of the SEPP ARH, and consent must not be granted.
5. Furthermore, the Respondent disputes compliance with subcl 29(2)(c) of the SEPP ARH. In particular, the solar access diagrams at pp 22-24 of Exhibit 2 are said by the Respondent to demonstrate a lack of direct sunlight in the communal open space during the hours stipulated by the provision.
6. Clause 30A of the SEPP ARH is in the following terms: 30A 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 Canterbury Local Environmental Plan is amended

1. It is commonly held by the parties that an amendment to the Canterbury Local Environmental Plan 2012, being Amendment No. 16 (amended CLEP) came into effect on 20 September 2019, as did the Canterbury Development Control Plan 2012, Amendment No. 5 (amended DCP).
2. However, as the application was lodged on 27 August 2018, the savings provision contained at subcl 1.8A(2) of the amended CLEP applies and provides, relevantly: "A development application made (but not finally determined) before the commencement of Canterbury Local Environmental Plan 2012 (Amendment No 16) for development on land to which that Plan applies is to be determined and have effect as if that Plan had not been made."
3. The Applicant submits that the proper application of the savings provision at cl 1.8A sets aside the provisions of the amended CLEP or, in the alternative that some weight is afforded to the controls therein, it should not be a weight that is determinative.
4. However, according to the Respondent in Exhibit 1, the amended CLEP was exhibited (11 December 2018 - 1 February 2019), resolved to be adopted (26 March 2019) and came into effect (20 September 2019), the result of which are provisions directly relevant to the development application.
5. Of particular relevance to this application is cl 4.1C of the amended CLEP which is in the following terms: 4.1C Minimum lot sizes for boarding houses (1) The objectives of this clause are as follows - (a) to ensure that lots for boarding houses are of sufficient size to accommodate boarding houses, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to minimise any likely adverse impact of the development on the amenity of the area, (c) to require the consolidation of 2 or more lots, where an existing lot is inadequate in terms of its area or width. (2) Despite any other provision of this Plan, development consent must not be granted to development for the purpose of a boarding house on a lot in a zone specified in Column 1 of the table to this subclause unless - (a) the area of the lot is equal to or greater than the area specified for that zone in Column 2, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that zone in Column 3. Column 1 Column 2 Column 3 … … … Zone R4 High Density Residential 1,000 square metres 20 metres

…

1. According to the Respondent, as the savings provision in the amended CLEP is not dissimilar to that in Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 (Terrace Towers), I should be guided by the Court of Appeal and find that, as the amended CLEP is now in force, it is appropriate to give it significant weight.
2. In further support of its argument, the Respondent relies on Council minutes from 27 November 2018 resolving that Council write to applicants of current applications advising of proposed changes (Exhibit 4, folio 420), and correspondence (Exhibit 4, folio 378) in which it asserts that the Applicant is advised by the Respondent of the Gateway determination in respect of the amended CLEP.
3. Relevantly, the amended CDCP introduces objectives and controls relating to the built form of boarding house development contained in amendments to Chapter C7 Boarding Houses.
4. The provisions of Chapter C7 that applied prior to the amended CDCP are contained in Exhibit 5, folio 47 and are in the following terms: "Boarding house is defined under LEP. Boarding houses can be carried out under State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordability SEPP) and the LEP. Where a development application is required, an assessment of the relevant provisions of the Affordability SEPP and LEP will be undertaken."
5. The amended CDCP also contains a savings provision, at Part A1.9, to the effect that a development application lodged, but not finally determined, before the commencement of the amended CDCP must be determined as if the amended CDCP had not commenced.
6. The parties essentially agree that the amended CDCP should be given some weight which Mr Seymour, counsel for the Applicant, describes as having no more of a role than to inform, at a high level, of the Council's strategic intent and submits that the effect of the savings provision prevents the application of the controls which are provisions that were not in force at the time the DA was lodged.
7. Authorities such as Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 (Alamdo); Wang v Canterbury City Council [2013] NSWLEC 1098 and Omid Mohebati-Arani v Kuringai Council [2017] NSWLEC 143 are said to support the Applicant's position, as does the planning principle in Veloshin v Randwick City Council [2007] NSWLEC 428 (Veloshin), to the extent that the R4 zone envisages a radical change in the future character of the area.
8. To that end, the Applicant encourages me to give weight to the intention of the R4 zone for high density residential development and to consider the compatibility of the proposal in that light.
9. I am also advised by Mr Robinson that I should consider the proposal's physical impacts on surrounding development when assessing the compatibility of the proposed development in respect of the local character.
10. For the reasons that follow, I consider the provisions of the amended CLEP and amended CDCP to be relevant to my consideration of the desired future character of the local area as, for obvious reasons, the future character is shaped by the controls found within the amended CLEP that is in force today.
11. The savings provision directs me to determine the application as if the amended CLEP had not been made. I accept, as noted by Dixon SC in Alamdo, that the text of the savings provisions in this matter is different to that in Terrace Towers, which required the Court to consider the application "as if this plan had been exhibited but had not been made."
12. The stream of case law put to me as being most relevant to the application of the savings provision reveals subtle but important distinctions in its form of words as to whether a Plan had been 'exhibited', 'made', or 'commenced'.
13. The import of Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, applied here, and as I understand it, is that the savings provision fictitiously sets back the amended CLEP to a point in time immediately before its making, not before its commencement.
14. The amended CLEP received Gateway approval from the Department of Planning and Environment on 2 May 2018, and the Application was lodged on 27 August 2018.
15. The Council did not endorse the amended CLEP for public exhibition until 27 November 2018.
16. While the application was lodged by the Applicant at a time before the public exhibition of the proposed amended CLEP, an exchange of correspondence between the parties between 8 February 2019 and 26 March 2019 shows the application was amended.
17. A letter prepared by Ms Michael on behalf of the Council (Exhibit 4, folios 378-386) and dated 8 February 2019 is, in my view, extensive. It runs to nine pages in length and deals with the amended CLEP, and provisions in what was to become the amended DCP, including Chapter C4 and Chapter C7.
18. I should record here that the Respondent submits the Applicant was informed by the Council at the time of the Gateway approval, and cites the letter prepared by Ms Michael as evidence of the same. However, a careful read of the letter provides no direct evidence to this effect. It is my view that this can only be inferred and is not certain. Either way, I consider the actions of the parties following Ms Michael's letter to be more directly relevant to the weight to be applied to the amended CLEP.
19. In an email prepared by Mr Ihab Shams on behalf of the Applicant on 20 February 2019, the Applicant seeks an extension of 5 weeks "to cover all council comments and concerns." (Exhibit 4, folios 376-377).
20. The extension was granted, and a date of 27 March 2019 was set by Council for the amended plans and documentation to be submitted by the Applicant. (Exhibit 4, folio 376)
21. In an email prepared by Mr Ihab Shams on behalf of the Applicant on 8 March 2019 (Exhibit 4, folios 375-376) in response to Ms Michael's letter, the Applicant engages with Council's advice in express terms: "Following council letter in relation to the above mentioned application, we have amended our architectural drawings in response to the issues raised by Council. The amendments are as below: • Increasing the side setbacks to 4m wherever there is a habitable Windows/Openings. • Increasing the rear setbacks to 6m. • Increasing the front setbacks to 6m. • Redesigning the floor plans to be single loaded self contained units instead of the previous double loaded scheme. • Deletion of the partially 4/3 storey in order to reduce the building bulk, height and scale. • Fully complying with the height limit. • Redesigning the façade. • Relocating the communal room to the rear of the site where it opens up to the rear landscape area. • Providing adequate deep soil/landscape at the front boundary in order to maintain street character. • Providing elevational shadow diagrams demonstrating that the property at 5 Ernest Street will receive a minimum of 2 hours of solar access. Please find attached: • The amended architectural drawings. • 2 valuation reports. • Amended survey. • New letter of offer to the neighbours. …"
22. On 26 March 2019, Ms Michael provided a response by email to the Applicant said to be in response to a conversation held the same day, and in reply to the amended plans provided to the Council by the Applicant on 8 March 2019. (Exhibit 4, folio 373)
23. In my view, the exchange between the parties at [52]-[58] demonstrates the Applicant engaged with the provisions of the amended CLEP and the amended CDCP, and sought additional time from the Council prior to the assessment of the application so as to ensure the amendments set out in the exchange between the parties formed part of the assessment.
24. Furthermore, the amending of the application occurred after the period in which the amended CLEP was publicly exhibited when it might properly be considered the 'proposed instrument' in accordance with subs 4.15 (1)(a)(ii) of the EPA Act.
25. The savings provision at cl 1.8A of the amended CLEP constrains its application in this case as the development application was lodged and amended, but not finally determined, prior to the commencement of the amended CLEP. For this reason, I accept that the provisions of the amended CLEP cannot be determinative of themselves.
26. However, in my view this is balanced by the evidence that the Applicant amended the development application in light of the provisions of the then proposed amended CLEP, following its public exhibition.
27. Consequently, I consider it appropriate to give some weight to the amended CLEP for two reasons: 1. Firstly, the application was amended following the public exhibition of the proposed amended CLEP and so is properly considered a proposed instrument that is or has been the subject of public consultation under subs 4.15 (1)(a)(ii) of the EPA Act. 2. Secondly, the amended CLEP is now in force. It will shape future development in the local area which is likely to be a radical departure from the predominantly single storey character in Ernest Street North. That character, and particularly, the desired future character is something with which the proposed development should be consistent in accordance with cl 30A of the SEPP ARH.
28. The most relevant provision of the amended CLEP in this case, at cl 4.1C, is the requirement for a minimum site frontage of 20m and site area controls for boarding houses of 1000m2 in an R4 zone.
29. Related provisions in the amended CDCP apply controls in relation to side setbacks, visual privacy and deep soil provisions.
30. I propose to consider the contentions in respect of character (Contention 2), site isolation (Contention 3) and side setbacks and the like (Contention 4) together as these contentions invoke consideration of the future character of the local area.
31. In embarking on this exercise, I also note that the wording of cl 30A of the SEPP ARH requires the consent authority, or in this case the Court exercising the functions of the Council as the consent authority on appeal, to take into consideration whether the design of the development is compatible with the local area (my emphasis).
32. It is not worded as a prohibition on the grant of consent, and so I accept that even if I conclude that the design of the development is not compatible with the character of the local area, consent is not precluded by that fact alone.

Whether the design of the development is compatible with the character of the local area

1. The Respondent contends that the proposed development is incompatible with the existing character of the local area, and inconsistent with the desired future character for the following reasons: 1. Front and side setbacks are insufficient to comply with Parts C7.3.2 and C4.3.2.3 of the amended CDCP, 2. The degree of landscaping in the front setback and to the balance of the site is not in keeping with the character of the street, 3. Area of deep soil to the northern side setback is inadequate to comply with Part C7.3.2 of the amended CDCP, 4. The proposed wall height is greater than that allowed by Part C4.2.2.2 of the CDCP being 10m.
2. Ms Michael's oral evidence is that, prior to the adoption of the amended CDCP, the Respondent applied the objectives and controls in Part C4 of the CDCP to developments of a like built form and scale to residential flat buildings such as boarding houses, as is evident from Council's advice to the Applicant contained in correspondence dated 8 February 2019 (Exhibit 4, folios 378-386), and subsequent email dated 26 March 2019 (Exhibit 4, folio 373).
3. In response, the Applicant submits that as the proposed development is consistent with the objectives of the R4 zone, and complies with controls in respect of height and floor space ratio (FSR) applicable to the site, it follows that the application is an orderly and economic development of the land.
4. Furthermore, while the character of Ernest Street North may be currently typified by single storey residential dwellings, the visual catchment includes residential flat buildings in a zone in which the desired future character is for high density residential development.
5. As the planning controls envisage a built form of up to 11.5m in height, and a FSR of 0.9:1 with bonus FSR under the SEPP ARH with which the proposal complies, I should consider the compatibility of the proposal with the desired future character, as in the planning principle set out in Veloshin.
6. According to Mr Robinson, the proposal is respectful of the existing character of the area as it does not seek the benefit of the FSR bonus that is available under the SEPP ARH, uses a pitched tiled roof and a variety of materials and finishes that are elements common in the street.
7. Additionally, variations in appearance to the north and south façade addresses Part C4.2.3.1, Objective O6 of the amended CDCP that encourages articulation in the interests of reducing the appearance of scale, and to enhance visual interest and the diversity of built form.
8. In commencing his oral evidence, Mr Robinson amended his evidence given in the joint report at par 1.18 (Exhibit 2, p 19) to correct the relative levels of the external terraces to rooms G.01 and G.02 located along the side boundary shared with 1A Ernest Street North, with the result being agreement that the terrace at G.01 is 1.45m above the natural ground level on the survey (Exhibit K).
9. To the extent that the level would then result in overlooking to No 1A Ernest Street North, Mr Robinson advises that plant selections currently shown on the landscape plans (Exhibit J) as being 2m in height, should be revised to a species expected to grow to 3m in height. Furthermore, while the Court does not generally consider landscaping as a safeguard against overlooking, in a boarding house development, the presence of a manager would ensure continued maintenance.
10. While not trammelling with Mr Robinson's opinion at [75], the Applicant submits that the sole provisions relevant to boarding houses in the area are those set out at [40], and the effect of the savings provision at Part A1.9A is that Part C7 applies as it is found in Exhibit 5, and for that reason I should not give determinative weight to provisions contained in Part C4 - either before or after the amending of the CDCP, or Part C7 in the amended CDCP.
11. That said, the Applicant submits that the amended plans at Exhibit Q demonstrate numeric conformity with setbacks set out in Part C4.3.6 at the front, rear and southern boundary.
12. While I accept the setbacks comply at the front and rear, I consider the waste room in the southern setback, positioned close to the street frontage, to substantially encroach on what the Applicant considers to be an otherwise complying distance.
13. To the extent that the Respondent submits the awning encroaches in the front setback, I consider the projection to be minor and within the terms of Part C4.3.2.3 of the amended CDCP (Control 12(a)) which tolerates projections of up to 1m. Additionally, in my reading of the drawings, the awning approximates the front setback of 1A Ernest Street North.
14. However, for reasons I will set out later, I consider the southern and northern setback to not only depart from the controls guiding future character, but in the case of the northern setback, to do so in a manner that imposes adverse environmental impacts on its neighbour at 1A Ernest Street North which is likely, for the reasons that follow, to be isolated by the proposed development.

The proposed development does not meet the lot size requirements and would isolate the adjoining property

1. Mr Robinson is of the view that I should be guided by the planning principle in Veloshin and give greater weight to the desired future character of the area than the existing low density residential character that is evident in Ernest Street North today. I agree.
2. For the reasons stated earlier, I consider the amended CLEP relevant when considering the desired future character of the area given the effect of the planning controls on future development.
3. In considering the lot size requirements and the question of whether 1A Ernest Street North may be isolated by the subject development, it is helpful to first describe the allotment layout at the intersection of Ernest Street North and Lakemba Street.
4. The subject site and 1A Ernest Street North are oriented perpendicular to Ernest Street North, while 240-244 Lakemba Street run parallel to Ernest Street North.
5. The Applicant has extended offers on 3 occasions to the owner of 1A Ernest Street, on 1 June 2018, 1 August 2018 and 5 March 2019 (Exhibit 4, folio 387-389) but has received no response.
6. The Applicant submits that it is open to the owner of 244 Lakemba Street and 1A Ernest St, having a familial relationship, to consolidate those sites, however the result would be an 'L' shaped allotment unsuited to development. In the alternative, the properties at 240-244 Lakemba Street could be consolidated and join with 1A Ernest Street North to form a development site that is consistent with the residential flat building at 246-248 Lakemba Street and with the intent of the R4 zone for high density residential development.
7. A development concept plan is contained in Annexure B of the joint expert report which shows the consolidation of properties at 240-244 Lakemba Street, and 1A Ernest Street North.
8. However, according to Ms Michael, as Lakemba Street is defined as a major road, the table at Part C4.3.6 of the amended CDCP requires a 27m frontage which could be achieved by the amalgamation of 240-244 Lakemba Street, and to which 1A Ernest Street North adds nothing.
9. For this reason, Ms Michael is of the view that the most likely course for future development on Lakemba Street would result in the exclusion of 1A Ernest Street. Acquiring individual properties for consolidation can be an arduous task and I accept that it is not done without time and cost implications for the acquiring party. For this reason, I prefer Ms Michael's evidence that the property at 1A Ernest Street North, if not consolidated with the subject site, is not required for the development of the sites at 240-244 Lakemba Street and so is likely to be isolated by the development surrounding it.

Findings

1. There is no question that development in the R4 zone, of which Ernest Street North is a part, will result in buildings that are significantly taller than those present today. Taller buildings, by virtue of their scale, can be expected to impose greater impacts on adjoining properties, particularly those properties that do not, or are yet to, take up the increased height and FSR that are a feature of the zone.
2. The amended CLEP makes clear that the R4 zone permits boarding house development, residential flat buildings and shop top housing with consent. All of these forms of development are likely to result in taller buildings in the area, including in Ernest Street North.
3. With this in mind, I accept Mr Robinson's view that the planning controls are aimed at creating a new character.
4. The future character of boarding house development in the R4 zone is the subject of objectives and controls applicable to boarding house development which includes, but is not limited to;

• Building envelope controls (Part C4.3.2)
• Building design (Part C4.2.3, by reference to by Part C7.4.1)
• Side setbacks (see Part C7.3.2, and Table C7.11)
• Visual privacy (Part C7.6.2)

1. While the proposed development generally complies with building setbacks applicable to the future development in the area at the front and rear setback, it does so under evident duress on both the northern and southern boundary.
2. The drawings show that the basement carpark is set back just 919mm from the northern boundary adjoining 1A Ernest Street North. However the basement is not wholly concealed below ground.
3. Mr Robinson tells me that the retaining wall bounding the basement carpark at boarding room G.01 protrudes around 1.45m above the existing ground line, at a relative level of either 36.35, or 36.25 (both levels are suggested on the drawings). Atop this retaining wall is a paved terrace and lawn providing private open space to boarding room G.01, and is similar at the adjacent boarding room G.02.
4. The survey (Exhibit K) records three windows on 1A Ernest Street in close proximity with a sill height between 37.00 and 37.48, and top of window between 38.01 and 38.1. Adopting an eye height of 1.5m suggests a direct line of sight from the G.01 terrace to the windows would result and for which landscape screening is proposed.
5. Clearly, an occupant of the G.01 and G.02 private open space would overlook 1A Ernest Street North until the landscaping reaches the expected maturity, and only in the event it does not fail altogether, despite the best intentions of a boarding house manager, who is unlikely to be trained in horticulture.
6. Overlooking is an explicit concern of the submission made by Mr Katsaros, the owner of 244 Lakemba Street and said to be also made on behalf of his mother, the owner of 1A Ernest Street North (Exhibit 4, folio 490).
7. The combination of height and proximity to the northern boundary of the private open space to boarding rooms G.01 and G.02 places occupants of those rooms in direct conflict with the windows into rooms at 1A Ernest Street North.
8. The Applicant proposes landscaped screening as a solution. However, the long standing position of the Court is that where landscaping is proposed as the main safeguard against overlooking, it should be given minor weight. As the overlooking in this case is a direct sightline that is perpendicular to the boundary, from a north-facing private open space in which an occupant of the boarding house can be expected to spend time, I see no reason depart from the Court's long standing position, and accordingly I give little weight to the reliance placed on landscape screening by the Applicant.
9. I also note that the controls of the amended CDCP seek a future character with adequate building separation through side setbacks (Part C7.6.2, Control C2(a)) and where private open space should be oriented to the street or rear of the lot to avoid direct overlooking between neighbouring residential properties (Part 7.6.2, Control C2(b)).
10. The northern setback is shown on the ground floor plan (Exhibit Q, drawing 1201) to be 4m from the northern boundary of the site when measured to the external wall of the boarding rooms facing 1A Ernest Street North. This is consistent with the amended application as summarised by Mr Shams at [57].
11. However, this dimension is encroached upon by blade walls at the ground floor of the proposed development that appear to provide separation and lateral screening between the private open space of boarding rooms that rely upon the northern setback for their private open space.
12. The elevations show these blade walls to be in the order of 3200mm high above the terraces of boarding rooms G.01 and G.02. If the detailed section drawing on drawing No. 1501 is correct, a concrete upstand to the canopy over the blade walls rises further.
13. Adopting Mr Robinson's evidence at [76], the height of the blade walls and concrete canopy over would be in the order of 4650mm-4750mm above the natural ground line at the boundary.
14. A careful reading of the north and east elevation drawings suggests that, given the scale and location of these blade walls and the concrete canopy over, they would be visible in the side setback to the north when viewed from Ernest Street North.
15. Such an encroachment would be, in my view, out of character with the setback and landscape treatment desired in future development that results from the provisions of the amended CLEP, and the controls found in the amended CDCP.
16. In addition to the encroachment to the northern boundary, the waste room clearly encroaches to the southern side setback despite the Control C4, at Part C4.3.2.3 of the amended CDCP which states: "External walls that enclose rooms, storage areas and/or garages are not to encroach beyond the specified setbacks."
17. Part C7.3.2 of the amended CDCP requires a minimum side setback of 4m (Control C1). The blade walls and concrete canopy encroach, at height, into this setback, imposing solid built form into the side setback that seemingly seeks a landscaped void or gap between built form when viewed from the street.
18. Table C7.11 of the amended CDCP requires a minimum setback of deep soil to side boundaries of 2m. Due to the encroachment of the car park basement into this zone, there is less than half the width of deep soil desired by the control.
19. At this point I note that Part C4.3.2.3, at Control C3, applicable by reference contained in Part C7.3.1, appears to contain a typographical omission in the text that would ensure consistency with the summary table at Part C7.11. The text as it appears in Exhibit 4, folio 337 is: "A minimum width of deep soil alongside boundaries and minimum of 5m wide along front/rear boundaries."
20. An almost identical provision appears at Part C4.2.2.3 of the amended CDCP, at Control C3 (applicable to residential apartment development) which is in the following terms: "A minimum width of deep soil along side boundaries of 2m and minimum of 5m wide along front/rear boundaries."
21. As the provision at Part C4.3.2.3, Control C3 is replicated in summary at Table C7.11, I am satisfied that a numeric control of 2m applies notwithstanding what appears to be an editor's oversight.
22. The proposed development demonstrates neither a 4m setback to the northern boundary, nor a 2m width of deep soil on the northern side setback.
23. Likewise, the waste room to the southern side setback encroaches 2800mm into the setback preferred by the Control at Part C7.3.2 of the amended CDCP.
24. The combined effect of the encroachments in the northern and southern setbacks is a wide frontage of built form on the ground floor without the relief expected by the provision of setbacks and landscaping set in deep soil. The resulting effect, depicted on the East elevation is an almost boundary-to-boundary built form that I consider to be incompatible with the desired future character intended by the controls.
25. Add to this the effect of cl 4.1C of the amended CLEP on future boarding house development and the result is likely to be a future streetscape with a subdivision pattern formed by consolidation, resulting in wider lot frontages and larger allotment sizes.
26. However, consolidation is not proposed in this application. The Applicant submits that it has extended offers to the owner of 1A Ernest Street North, and received no response. I consider the manner in which these offers were made to be deficient in two ways.
27. Firstly it appears, on the basis of the advice provided to the Applicant by Ms Michael on 8 February 2019, and uncontested by the Applicant, that the Applicant's letters of offer to the owner of 1A Ernest Street North dated 1 June 2018 and 1 August 2018 were founded on a valuation of another property located at 4 Ernest Street North.
28. It is not suggested that the incorrect valuation(s) was provided to the owner, but that the two offers made prior to the lodging of the application with the Council, appear, from the evidence before me, to have been made on the basis of a valuation of a property unrelated to 1A Ernest Street and so cannot be considered to be reasonable offers.
29. Secondly, I note that evidence of a property valuation was only provided to the owner of 1A Ernest Street North with the final offer dated 5 March 2019, more than six months after the development was first lodged with the Council. It was provided at the time the application was amended, with a period of 2 weeks for a response.
30. I consider an offer made after the lodging of an application, and at the point the application was amended to be unreasonable by virtue of the statement of commitment already made, twice, by the Applicant to the constraints of the site as it appears in the application already lodged, and subsequently amended.
31. Additionally, I note that the valuation was only provided after advice from Council on 8 February 2019 that the original valuation had been prepared in respect of an unrelated property (Ex 4, folio 381).
32. The Applicant has not provided a development concept plan for 1A Ernest Street North in any other configuration but for its consolidation with 240-244 Lakemba Street.
33. Without consolidation, the dimensions of the site would appear to significantly constrain the development potential of the site. Without a development concept plan for the site at 1A Ernest Street North, absent consolidation with 240-244 Lakemba Street, I do not have evidence that the site is capable of being reasonably developed under the controls set out in the amended CLEP.
34. While I accept that the site could be amalgamated with adjoining properties on Lakemba Street, I also accept Ms Michael's evidence that 1A Ernest Street is, in effect, superfluous to those requirements.
35. As Lakemba Street is classified as a major road, a frontage of 27m is required by Table C4.3.6 of the amended CDCP on Lakemba Street for development to which SEPP 65 does not apply. The combined lot frontage of 240-244 Lakemba Street is, according to Ms Michael, 31.04m.
36. The property at 1A Ernest Street North is unlikely to make the difference in either lot size, or required frontage. In my view, this lends weight to the likelihood that the property will be isolated.

Conclusion

1. As stated at [61]-[63], while I consider the amended CLEP deserves weight, it cannot be, of itself, determinative.
2. In concluding that the appeal should be dismissed, I do not rely upon the provisions of the amended CLEP to be determinative. Instead, I conclude that consent should be refused for the following reasons: 1. Firstly, for the reasons set out at [96]-[102], I conclude that the proposed development would impose adverse environmental impacts on 1A Ernest Street North through overlooking along its northern boundary. 2. Secondly, for the reasons set out at [104]-[119], I conclude that it will impose upon the Ernest Street North streetscape a character unlikely to be evident in future development in the R4 zone. For this reason, I conclude that the proposed development is not compatible with the character, being the desired future character, of the local area as required by cl 30A of the SEPP ARH. 3. Thirdly and finally, for the reasons set out at [121]-[131], I consider it highly probable that the property at 1A Ernest Street North will be isolated by both the proposed development on the subject site, and the possible future development on Lakemba Street that can achieve the lot frontage width and site area required by the controls to develop in a manner that is consistent with the R4 zone without acquiring 1A Ernest Street North. Such a result is not consistent with the object at s 1.3(c) of the EPA Act to promote the orderly and economic use and development of land.
3. In arriving at my determination, I note that a common constraining factor appears to be the lot width fronting Ernest Street North. While it may not be determinative in itself, a greater lot width would seem to allow a more generous setback to the northern boundary for landscape screening, alternative arrangements for waste storage, and the potential for an alternative arrangement of private open space to boarding rooms that would avoid substantial structure in close proximity to, and overlooking of, its neighbour.

Orders

1. The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon the amended plans marked Exhibit A and other documents listed at [3] subject to the Applicant paying the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is dismissed. 3. Development consent for Development Application No. 376/2018 seeking consent for the demolition of existing structures and the construction of a three storey boarding house over basement car park on land at 1 Ernest Street North, Lakemba is refused. 4. All Exhibits are returned except for Exhibits A, Q and 6.

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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: 31 August 2020