Arxidia Pty Ltd v Randwick City Council; Arthur Wong Pty Ltd v Randwick City Council

The site and its context

1. Harbourne Road is located within close proximity to the Kingsford Commercial Centre and the University of NSW. The immediate neighbourhood comprises a mix of land uses including commercial and residential.
2. To the north of the subject sites are similar allotments with 1 and 2 storey buildings. The subject sites are adjoined to the south by a three storey town house development and a residential flat building.
3. To the west of the site are a mixture of single detached dwellings and older style brick four storey flat buildings. The density of development increases further west towards Anzac Parade.
4. The subject sites are in close proximity to public transport. There are regular bus services along Anzac Parade, and the sites will be within walking distance of the future Light Rail service that is currently under construction.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The application is lodged utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). This policy commenced in July 2009 with the "local character test" included at cl 30A via amendments on the 20 May 2011. This clause states: 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. Council contends that the development applications are not compatible with the character of the local area.
3. The experts agree the proposal complies with the mandatory standards is set out in clause 30 (1) of the SEPP, which are a precondition to consent, with the exception of the provision of motorcycle parking which is discussed at paragraphs [39 to 43].
4. Randwick Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)): … (a) to foster a liveable city that is accessible, safe and healthy with quality public spaces and attractive neighbourhoods and centres, … (c) to support efficient use of land, vibrant centres, integration of land use and transport, and an appropriate mix of uses, (d) to achieve a high standard of design in the private and public domain that enhances the quality of life of the community, (e) to promote sustainable transport, public transport use, walking and cycling, (f) to facilitate sustainable population and housing growth, (g) to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick, (h) to promote the importance of ecological sustainability in the planning and development process, (i) to protect, enhance and promote the environmental qualities of Randwick, (j) to ensure the conservation of the environmental heritage, aesthetic and coastal character of Randwick, .. (l) to promote an equitable and inclusive social environment, …
5. Pursuant to LEP 2012 the site is zoned R3 - Medium Density Residential. The objectives of the R3 zone are as follows: •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 recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. •To protect the amenity of residents. •To encourage housing affordability. …
6. The proposal is defined as a boarding house and is permissible, with consent, in the zone.
7. The consent authority must have regard to the objectives for development in the zone when determining a development application (cl. 2.3(2) LEP 2012).
8. Part 4 of LEP 2012 contains principal development standards with clause 4.4 Floor Space Ratio (FSR) prescribing a maximum FSR of 0.75:1 for the site, and at clause 4.5 a maximum building height of 9.5 m. SEPPARH provides an additional floor space bonus of 0.5:1 which has the effect of increasing the FSR control, applicable for a boarding house use, to 12.5:1. The development complies with the development standards.
9. The Randwick Development Control Plan 2013, (DCP 2013) applies to the proposal. The clauses of DCP 2013 relevant to the appeal are: B 7 Transport Traffic, Parking and Access Objectives: •To promote sustainable transport options for development, particularly along transport corridors, in commercial centres and strategic /key sites; •To manage the provision of parking within the broader transport network; •To support fully integrated transport and land use options which can demonstrate shared and effective car parking provision with car share facilities, motorbike/scooters, bikes and links to public transport; •To ensure car parking facilities, service and delivery areas and access are designed to enhance streetscape character and protect pedestrian amenity and safety. C.1 Low Density Development Introduction: This section applies to all new development and alterations and additions for low density forms of housing in Randwick City, being: •Dwelling houses •Semi-detached dwellings •Dual occupancies (attached) •Dual occupancies (detached) •Secondary dwellings. 6.3 Setbacks of Parking facilities Controls … ii) Entry to garages and carports off the rear lane must be setback a minimum of 1m from the lane boundary. … 8.1 Development in Laneways Objectives: •To ensure any building fronting a rear lane has a scale and mass secondary to the main dwelling on the site, and is appropriate for the width of the site; •To promote casual surveillance and improve safety and security of laneways Controls (i) All ancillary buildings fronting laneways must have a maximum height of no more than 6m. The maximum external wall height is limited to 4.5m. Ancillary buildings on laneways must have a mass and scale secondary to the primary dwelling on the allotment. … C4 Boarding Houses Objectives: •To encourage housing choice and affordability through the provision of high quality boarding houses in Randwick City; •To achieve high standards of amenity for boarding house residents and surrounding neighbours through effective design and management controls. Building design Objectives: •Ensure boarding rooms and communal spaces are appropriately sized, located and equipped with suitable facilities; •… •Protect the acoustic and visual privacy and living amenity for both boarding house residents and neighbours. Controls: 2.1 Boarding Rooms i) Orientate to receive the maximum amount of sunlight; ii) Provide a balcony, terrace or window opening to outdoor areas for natural light and ventilation; and … 2.2 Outdoor Communal Open Space i) Provide for all boarding houses, with a minimum total area of 20 square metres and a minimum dimension of 3 metres; ii) Provide at ground or podium level in the form of a courtyard or terrace area, accessible to all residents; iii) Locate and orientate to maximise solar access; iv) Incorporate both hard and soft landscaped areas; v) Provide shared facilities such as fixed outdoor seating benches, barbecues and the like to allow social interaction; and vi) Provide partial cover for weather protection, such as pergola, canopy or the like, where it does not cause unreasonable overshadowing on adjoining properties. 2.3 Indoor Communal Living Areas i) Provide with a minimum dimension of 3 metres and a minimum total area of 20 square metres or 1.2 square metres/resident, whichever is greater; and ii) Orientate to maximise solar access and have a northerly aspect where possible 2.4 Communal kitchen, bathroom and laundry facilities i) For all boarding houses, provide communal kitchen, bathroom and laundry facilities where they are easily accessible for all residents, unless these facilities are provided within each boarding room; … iii) Locate and design any communal laundry room to minimise noise impact on boarding rooms and neighbouring properties; and … 2.6 Visual and acoustic amenity and privacy … vi) Locate communal open space, balconies and windows to bedrooms or communal areas, to minimise overlooking, privacy and acoustic impacts on adjoining properties; vii) An acoustic report prepared by a suitably qualified acoustic consultant must be submitted for new development or conversions/intensifications with an increase in resident numbers. The report must: a) establish the existing background noise levels; b) identify all potential noise sources from the operation of the premises, including any mechanical plant and equipment; c) estimate the level of potential noise emission; d) establish desirable acoustics performance criteria; and e) recommend any mitigation measures (such as sound proofing construction and/or management practices) required to achieve relevant noise criteria.
10. The DCP provisions are a mandatory consideration, and a focal point, of the assessment of the application (see Zhang v Canterbury City Council [2001] NSWCA 167). However Section 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).

Expert Evidence

1. In line with the issues in dispute in the proceedings the parties engaged experts in town planning, and Building Code of Australia (BCA) compliance / Fire Engineering. The experts for the applicant were: 1. Mr Anthony Betros - town planning; 2. Mr Sean O'Brien - (BCA) compliance / Fire Engineering. The experts for the Council were: 1. Mr Stuart Harding - town planning; 2. Mr Stuart Boyce - (BCA) compliance / Fire Engineering;
2. Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.

Evidence of Experts

1. The Council previously contended that the buildings were non-compliant with the BCA. As a result of the joint conferencing process, and the production of amended plans (Exhibit A and Exhibit B) the experts agree that, subject to imposition of agreed conditions, no BCA or fire engineering issues remain in contention between the parties.

Is the development compliant with the mandatory standards in SEPPARH?

1. It is agreed between the parties, and their experts, that the Clause 29 provisions of SEPPARH in relation to compliance with building height (cl 29(2)(a), provision of landscaped area (cl 29(2)(b), solar access to communal space (cl 29(2)(c); private open space (cl 29(2)(d); and accommodation size (cl 29(2)(f) are achieved, and therefore must not be used by the consent authority as grounds to refuse consent.

Vehicular Parking

1. It is agreed between the experts that the development is in an accessible area in accordance with the relevant definition in the instrument. SEPPARH at cl 29(2) (e) details the following requirements for the provision of parking: if: (i) in the case of development in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and .. (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, [emphasis added]
2. The planning experts agree the parking requirement is calculated as follows: 1. 23 Harbourne Road: Vehicular requirement: 17 rooms x 0.2 parking spaces: 3.4 spaces [Vehicular provision: 4 spaces] 1. 21 Harbourne Road: Vehicular: 16 rooms x 0.2 parking spaces: 3.2 spaces [Vehicular provision: 3 Spaces]
3. The experts disagree as to whether a manager's vehicular space is required by the development, and how the parking requirement is required to be rounded where a part space is generated by the calculation.(refer paragraph [25]).
4. Mr Betros argues that the subject site is in close proximity to numerous and frequent bus services along Anzac Parade, and when complete the site will be within 400m of a Light Rail stop. In addition he argues that Council has, on merit, varied the parking requirement for other boarding house approvals in vicinity of the site (Exhibit 10). It is his evidence that, on merit the application warrants a variation due to the proximity to public transport. He argues that SEEPARH does not require the provision of a managers parking space.
5. Mr Harding's evidence is that it is inappropriate not to provide parking for the rear Manager's dwelling. He reasons that given the size of the accommodation and the demands for delivery's that will arise from the scale of the development it is required. Whilst accepting that the site is proximate to public transport, Mr Harding's evidence is that on-street parking is highly competitive within streets surrounding the sites and that a variation to the parking requirement is unacceptable given this existing high demand.
6. Mr Harding also argues that the lack of accessible parking provided is at odds with the provision of accessible rooms within the development. He argues given the particularity of poor access from the street immediately in front of the property due to the slope of the verge, and the lack of parking in Meeks Lane accessible access is not provided to the development, despite the provision of the platform lift in the frontage of 21 Harbourne Road.
7. In contrast it is the evidence of Mr Betros that there is no requirement for the applicant to provide accessible parking and that access can be provided from on street parking within Harbourne Road, albeit not directly in front of the developments, through the use of the public footpath.
8. Mr Eastman submits that a manager's space is not mandated due to the construction of the clause as "not more than one" [refer paragraph 24]. The applicant has chosen not to provide a space, which is compliant with this provision.
9. Further Mr Eastman's submits that, consistent with the decision of Fakes, C in Lam v Ashfield Council [2015] NSWLEC1195, the provision of parking under cl 29(2)(e)(i) of 3.4 and 3.2 spaces [refer 25] is subject to merit assessment. In particular he refers to paragraph [67] of the judgement as follows: … I agree with Ms Gordon that cl. 29(2)(e)(i) SEPPARH requires 0.2 car spaces per room, as does cl. 2.6 Car Parking in Part C18 - Boarding Houses, AIDAP 2013. As there are 12 rooms, 2.4 spaces are required and usually this would equate to 3 spaces as there cannot be part of a space. While Mr North's comments, and AIDAP Part C11 - Parking, appear to suggest that calculated parking rates resulting in a number less than X.5 should be rounded down, cl. 8 SEPPARH gives primacy to the SEPP over other instruments and controls. However, that said, cl. 29(4) SEPPARH does not prevent a consent authority granting consent if a proposal does not comply with one of the standards in subclauses (1) or (2). Given the proximity of the site to public transport, and the provision of one space suitable for someone with a disability, I consider the provision of two parking spaces is reasonable in the circumstances.
10. On the evidence Mr Eastman submits the Court should reach a similar conclusion in this case and find that the parking provision is acceptable due to the proximity of the site to the university, NIDA and the hospital as well as public transport.
11. It is Mr Hudson's submission is that given the proximity of the site to other boarding house approvals (Exhibit 15), the evidence of Mr Harding and the residents in relation to the competition for on street parking and the lack of parking available in Meeks Lane the Court should apply the requirements of the SEPP by rounding up the requirements for vehicular parking. As such it is his conclusion that the parking requirements are not met and a variation is not warranted.
12. Further Mr Hudson submits that the development will generate the demand for deliveries, as is evidenced in the submissions from the public, and that this demand should be accommodated on the subject sites.
13. Mr Hudson submits that when all parking spaces are occupied at 23 Harbourne Road it is necessary to utilise the provision of the right of way proposed over 21 Harbourne Street to gain access to the buildings rear entry. It is Mr Hudson's submission that the lack of parking provision and the poor access arrangements provide evidence that the proposal is an over development of the land.
14. Mr Hudson argues that the Court should give weight to the evidence of Mr Harding in relation to the need for accessible parking and his evidence in relation to parking demand. On this basis he argues a variation to cl. 29(2)(e)(i) is not warranted.

Motorcycle Parking

1. Clause 30 of SEPPARH includes the following mandatory requirements for the provision of motorcycle and bicycle spaces: (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: … (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. [Emphasis added]
2. The experts disagree whether the provision of spaces in the current plans [Exhibit A &B] are compliant with this provision, and whether the spaces provide appropriate manoeuvrability.
3. It is Mr Harding's evidence that the provision of bicycle spaces with in the central common area (23 Harbourne Road) makes them inaccessible other than by using the stairs from the Harbourne Road frontage, or transporting the bicycle through the rear dwelling. This impractical location discourages the use of bicycles and further exacerbates vehicular parking issues by not providing a viable alternative (Exhibit 3).
4. In oral evidence Mr Harding also argued that the motorcycle parking provided at the rear of 23 Harbourne is difficult to access and there is insufficient space adjacent to allow for manoeuvrability out of the spaces, and in particular turning.
5. In oral evidence it was Mr Harding's conclusion that the provision of motorcycle spaces in both developments was unsatisfactory.
6. Mr Betros' evidence was that the motorbike spaces shown in both developments exceed the dimensional requirements, and importantly provide a 1200mm width. Mr Betros concludes that the provision of bicycle and motorcycle spaces is satisfactory.
7. In relation to the provision of spaces it is Mr Eastman's submission that the wording of this subclause within SEPPARH is different to the clause relating to car parking. The wording of cl30(1)(h), which details the motorcycle spaces required, provides a threshold at which the requirement for a space is mandated. On his submission, the threshold for the next bicycle or motorcycle would be at 20 rooms for each of the developments. He argues this is consistent with the reasoning of Fakes C in Lam v Ashfield Council at [68]. As such he submits the developments are compliant with the provision.
8. In the alternative Mr Hudson takes a more strict interpretation of the provision and argues that the applicant fails to meet the mandatory provisions at cl 30 of SEPPARH. He argues that the Court should not be satisfied that the required motorcycle provision has been met by the development (cl 30(1)(h) of SEPPARH).

Compatibility with Character

1. Finally the Court is required to consider whether the design of the development is compatible with the character of the local area (SEPPARH cl 30A).
2. Mr Betros' evidence is the proposals are the change of use of two existing two storey dwellings, which were approved via complying development certificates. It is his view that the built forms are compatible with the scale of houses in the locality and are subservient to the scale of flat buildings in the vicinity of the site (Exhibit 3, 10). As the development applications seek a change of use and minor alterations and additions it is his evidence that the built forms at 21 and 23 Harbourne Road remain compatible with the streetscape.
3. In terms of the future character of the locality it is Mr Betros' evidence that the development is below that which is allowed for by the controls and will not appear out of character in the streetscape in the future: 23 Harbourne Road … the proposal is well below the permitted FSR of 1.25:1, as it has an approximate FSR of 0.79:1. The 2-storey form is also below the wall height limit of 8m and overall height of 9.5m (maximum height of 7.5-8m), as shown on the side elevations. The length of buildings are also significantly less than potentially permitted by flat buildings and town houses in the locality which ensures that the built form will not appear out of character in the streetscape (Exhibit 3) 21 Harbourne Road …the proposal is well below the permitted FSR of 1.25:1, as it has an approximate FSR of 0.79:1. The 2-storey form is also below the wall height limit of 8m and overall height of 9.5m (maximum height of 7.5-8m), as shown on the side elevations. The length of buildings are also significantly less than potentially permitted by flat buildings and town houses in the locality which ensures that the built form will not appear out of character in the streetscape. (Exhibit 10)
4. In relation to 21 Harbourne Road, Mr Harding argues that the scale and bulk of the rear dwelling is a large and dominating structure which is out of context with the existing development in Meeks Lane. The non-compliant building form of the rear dwelling would set an undesirable precedent for rear laneway development and the character of Meeks Lane. In particular, there is not ability to be landscaped (sic) around the structure to provide a dwelling in a landscaped setting which is a desirable future character element of the area (Exhibit 10).
5. Mr Harding's evidence in relation to the main building at 21 Harbourne Road is that: 53. SH says the proposed development is poorly designed and is inconsistent with the design and form of adjoining development in the street and immediate locality. The side setbacks are not consistent with a building with the bulk and scale of the proposal and result in a building form that is not compatible with the character of the surrounding area. 54. SH says that the scale and intensity of the proposal, coupled with the inability to comply with parking and built form requirements, demonstrates an overdevelopment of the Site. (Exhibit 10)
6. In relation to 23 Harbourne Road, Mr Harding's evidence in relation to the rear lane presentation, and the main building, is consistent with that given at paragraph [49 and 50].
7. Mr Eastman submits that the test is not that the Court is required to be positively satisfied that the development is compatible with the character of the local area. The requirement is for the Court to consider the developments compatibility with character as part of its merit assessment of the application. Mr Eastman's submission is that this approach is consistent with the reasoning of Smithson, C in Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095 who stated at [32]: Under clause 30A of the ARH SEPP, the consent authority cannot consent to the development of a boarding house under the SEPP "unless it has taken into consideration whether the design of the development is compatible with the character of the local area". This does not mean that development cannot be granted even if design is incompatible with the character of the local area but requires the consent authority, in this case the Court, to first consider the compatibility issue.
8. In the alternative it is Mr Hudson's submission that, based on the evidence of Mr Harding, the Court should conclude that the change of use to boarding houses is not compatible. This is because the application an intensity of use that is uncharacteristic in the locality, and fails to provide the setbacks and breaks in the building form that allow for landscaping, attributes that are characteristic of the locality.
9. On the basis of this incompatibility with the character of the area, the impacts on the adjoining neighbours, and the poor internal amenity of the boarding houses Mr Hudson concludes that the developments warrants refusal.

Does the development appropriately mitigate its impacts on adjoining neighbours?

1. Mr Harding argues that the density of the use proposed is incongruent with the existing built form on the subject sites and their relationship with habitable spaces, fenestration and open spaces on the adjoining sites. His evidence is that the existing forms, and their relationship to these attributes within adjoining properties, fails to provide sufficient space to allow for the mitigation of the impacts that will arise from the density of the boarding house use. As an example he identifies that the 900mm setback will provide insufficient visual and acoustic buffer between the boarding house and the adjoining residential properties. He argues that as a result the applicant relies on mitigation measures such as frosted glazing that whilst ameliorating the privacy impacts, has a detrimental impact on the internal amenity of the boarding rooms.
2. In summary it is Mr Harding's position that the "retro fitting" of the boarding house use into the existing built forms result in a level of compromise in terms of internal amenity, and the interface with the neighbours that is unacceptable and warrants the refusal of the applications. His reasoning is outlined in the following.
3. In relation to 23 Harbourne Road Mr Harding concludes: … the proposed 0-1.8m side setbacks will not provide adequate physical separation between the development and adjoining properties. The siting so close to the side boundaries will encourage overlooking and adverse acoustic amenity impacts. The proposal being two storeys in height and accommodating 17 boarding rooms exacerbates the visual and acoustic privacy issues. The rear dwelling also proposes 5 rooms and is sited close to side boundaries, resulting in the potential for similar adverse impacts. The development will adversely increase overlooking of adjoining properties due to the location of both rear balconies on the main building and the balcony on the rear dwelling. (Exhibit 3)
4. In relation to 21 Harbourne Road Mr Harding concludes: 33. SH considers the proposed 0.9m side setbacks will not provide adequate physical separation between the development and adjoining properties. The siting so close to the side boundaries will encourage overlooking and adverse acoustic amenity impacts. The proposal being two storeys in height and accommodating 16 boarding rooms exacerbates the visual and acoustic privacy issues. The rear dwelling also proposes 2 rooms and is sited close to side boundaries, resulting in the potential for similar adverse impacts. 34. The development will adversely increase overlooking of adjoining properties, particularly bedrooms from the rear of the First Floor Level (Bedroom No's 10 and 12). (Exhibit 10)
5. In oral evidence Mr Harding also identified that there are instances of unacceptable visual privacy impacts between the subject sites. For example from the common stairs at the front of the building at 23 Harbourne Road, to the bedroom windows of boarding rooms within 21 Harbourne Road.
6. The remaining impact on adjoining properties identified by Mr Harding is the potential reduction in development potential of adjoining sites. He argues that given the subject sites, and the adjoining lands, are zoned R3 High Density Residential there is potential for the adjoining properties to be redeveloped for residential flats. If this is the case Mr Harding argues the fact that the subject sites fail to provide an equitable contribution to the building separation (sought by the planning controls for this form of development) and provides habitable windows fronting the boundary, will impede the future redevelopment of the adjoining sites.
7. In the alternative it is Mr Betros' evidence that, as the proposal relates to an existing building which has been approved by a Complying Development Certificate, it would be unreasonable and unnecessary to insist upon greater side setbacks (Exhibit 3,10). Secondly that increased setbacks are not warranted in the context of the adjoining town house development, and finally that proposed windows at ground and 1st floor can be suitably treated to address any visual privacy concerns (Exhibit 3, 10).
8. In response to Mr Harding's evidence, Mr Betros argues that the use of the boarding rooms will be predominately for sleeping and study, and that with the layout of the proposed boarding houses ameliorate any impacts through the careful location of the common rooms. His reasoning is as follows: The passive nature of the side facing rooms are therefore unlikely to generate any adverse visual or acoustic impacts, noting that, unlike surrounding dwellings and flat buildings, that the proposal will be subject to the Plan of Management. It is also noted that there are numerous untreated upper level windows and balconies on nearby allotments which have no privacy screening. The proposed response is therefore considered to be acceptable in this context. (Exhibit 3, 10).
9. Further Mr Betros argues that the Plan of Management proposes measures to mitigate any detrimental acoustic impacts on adjoining properties. In oral evidence Mr Harding agreed that if the developments operate in accordance with the relevant plans of management there should be no acoustic impact on adjoining neighbours.
10. Mr Eastman submits that the application is a change of use, and as such the built form and the possibility of an improved design is only relevant in the context of the proposed boarding house use. He submits that any adverse impacts that arise have been ameliorated by the plan of management, alterations to the built form, and through changes to the existing building fabric such as retrofitting opaque windows to address privacy impacts.
11. Mr Hudson submits that the Court should, in the determination of the application, give weight to the objections of the neighbours who have experienced the impacts that arise from the proposed use.

Do the subject properties provide appropriate facilities and amenity for the boarding house residents?

1. In contention between the experts is whether: 1. the amenity provided by the communal rooms within the 21 Harbourne Road and 23 Harbourne Road is appropriate; 2. appropriate laundry facilities have been provided within the developments; and 3. the pedestrian access into, and through components of the development within the site is appropriate. 4. Whether the approach to the management of waste is appropriate.

Communal Rooms

1. The rear ground floor kitchen of 21 Harbourne Road has a window that overlooks the communal open space in the centre of the site. A deck and fire stair is located on the first floor, directly above the window. It is the evidence of Mr Harding that this will cause the solar access to the kitchen to be substantially reduced.
2. It is the evidence of Mr Betros that the individual boarding houses at 21 & 23 Harbourne Road will operate such that residents can access either of the communal living spaces within their specific site. As such, and given their different orientation, residents will be able to "follow the sun" throughout the day if they wish. It is his evidence that given this diversity, the amenity of the communal facilities is high.
3. As detailed at paragraph [73] it is Mr Harding's evidence that the reliance on the communal kitchen/ living/ dining room in the rear building of 23 Harbourne Road as a thoroughfare makes it functionality questionable, and on his evidence the living area is unsatisfactory.

Laundry Facilities

1. It was Mr Harding's oral evidence that the stand alone communal laundry provided in 21 Harbourne Road is inadequate in its size, and makes no provision for electric dryers. It his view that a larger laundry and alternative drying facilities are warranted given the size of the boarding house.
2. It is Mr Betros' view that the existing washing machines indicated in the plans could be substituted for washer/dryers that would facilitate the additional functionality sought by Mr Harding. This could be achieved by the imposition of a condition of consent to this effect.
3. The suitability of the provision of the remaining laundry facilities within the communal kitchens was also contended by Mr Harding. It was his evidence that the laundry facilities should be separately located to improve their functionality, and limit the impact of the noise of the machines on the communal living areas.

Pedestrian Access through the site

1. As noted at paragraph [35] pedestrian access from Meeks Lane to the proposed boarding house at 23 Harbourne Road is via a right of way across 21 Harbourne Road. For boarder's wishing to access the boarding rooms or facilities within the main building at 23 Harbourne Road they are required to walk through the communal kitchen, dining and living rooms provided for the residents of the rear building.
2. It is the evidence of Mr Harding that this through access impacts the functionality of these communal spaces and renders them unacceptable. He also argues that the site should have a separate pedestrian entry from Meeks Lane where the vehicular parking is located.
3. In the alternative Mr Betros' oral evidence was that whilst part of the space will function as a corridor, sufficient space remained for the spaces to be functional.

Approach to Waste Management

1. In contention between the experts is whether the location of the waste bins within the subject sites is appropriate, and whether the movement of the bins to the street is practical.
2. It is Mr Betros' evidence that the Plan of Management and revised waste storage areas provide for adequate waste management as the manager can suitably collect and dispose of waste from the private areas to the communal areas and for on-street collection as required. The waste storage areas are not adjacent to any bedrooms as they are on the southern side of the blank wall of the manager's residence and to the rear of the communal living area.
3. In the alternative Mr Harding does not consider the number of bins or design of the waste storage area to be adequate for the proposal. The proposed location of the waste storage area is difficult to access and transport bins to and from the front of the site due to changes of levels in the land. It is Mr Harding's evidence that waste storage area is not appropriately screened and results in adverse amenity impacts to residents. In particular he argues that the location of refuse bins outside the communal kitchen/ dining area at 21 Harbourne Road is unacceptable.

SEPPARH

1. I accept the agreement of the experts that the development is in an area of high accessibility for public transport and that the provisions of s29(e)(i) apply to the subject sites.
2. Following a review of the wording of the instrument I concur with the submission of Mr Eastman that SEPPARH at 29(2)(e)(ii) does not require the provision of a managers vehicular parking space for the developments due to the use of the phrase "not more than one".
3. I accept that, following a review of the wording of the instrument, and that it is appropriate to round up the vehicular parking requirements generated by the development. This approach is consistent with the observations of Fakes, C in Lam v Ashfield. It is my view that this is the intent of the wording "at least 0.2 spaces" at s29(2)(e)(i) of SEPPARH.
4. On merit I find that it is acceptable to support a variation to the parking requirements on the basis of the proximity of the site to uses that will generate a demand for residential accommodation and on the basis that the sites are well serviced by public transport.
5. Following a review of the wording of the instrument I concur with Mr Eastman's submission on the application of cl 30(1)(b) in relation to the provision of motorcycle spaces. In my view the wording of this clause is specifically different to the clause relating to car parking, and an additional motorcycle space is only required when the relevant threshold is met (Lam v Ashfield, paragraph [68]). In the case of these applications that threshold would be 20 rooms. I am satisfied that the applications meet this requirement of SEPPARH.
6. In relation to the character of the development, and its compatibility with the local area, I accept the evidence of Mr Betros (at paragraph [47]) given the description of the development sought, and I am satisfied that the compatibility of the changes sought to the building form through alterations and additions are not sufficient to create incompatibility enough to warrant the refusal of the applications.
7. However, I accept the evidence of Mr Harding and my own observations during the onsite view in relation to the streetscape impacts of the rear lane presentation of the developments and discuss the merit of these later in the judgement at paragraph [92].

Impacts on adjoining properties

1. The evidence of the residents [refer paragraph 5] indicate that the developments, as they currently operate, have an unacceptable impacts in terms of privacy and acoustics. The Council's planning report that supported the determination of the applications includes the following description of the use of the sites at that time: A site visit on 19 January 2016 confirmed occupation of the boarding house, including bicycles in the front yard, open windows, interior lighting, washing hanging in the rear yard and a larges waste bin in the rear lane. (Exhibit 3) A site visit on 24 November 2015 confirmed current occupation of the boarding house, including bicycles in the front yard, open windows, interior lighting, washing hanging in the rear yard and a larges waste bin in the rear lane. (Exhibit 9)
2. Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) LGERA 408 discusses the relevance of an unlawful past use. At [35-38] His Honour states: Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. ...... The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant. For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant.
3. Consistent with the decision of Preston CJ in Jonah , the actions of past, present and future owners/operators are an irrelevant enquiry in the consideration of the merits of the application. It must be assumed that an owner/operator will comply with any consent and its conditions.
4. The past use of the sites, as boarding houses, however, is a relevant consideration to assist in the assessment of the likely impacts of the proposal and how these can be mitigated. I acknowledge the concerns of the residents in this regard [refer paragraph 5]. I have given these impacts consideration in my assessment of the application, and in assessing the suitability of the mitigation measures proposed by the applicant.
5. The relevant planning principle for the assessing amenity impact on neighbouring properties is found in Davies v Penrith City Council [2013] NSWLEC 1141, extracted below: Criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: •How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? •How reasonable is the proposal causing the impact? •How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? •Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? •Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?
6. Applying these principles in relation to the potential impacts of the proposals, and reviewing the analysis of the experts, leads to the following conclusions: 1. I accept the evidence of Mr Harding that the change of use requested to the existing residential dwellings at 21 & 23 Harbourne Road to a boarding house use will intensify the impacts of noise, privacy intrusion, waste generation and general traffic and parking demands over that of two residential dwellings; 2. It is clear from a review of DCP 2013 that for more dense forms of development, where the intensity of occupation of the site increases, greater controls apply to the built form to "design out" any impacts and conflicts between the density of the development and the adjoining properties. I accept the evidence of Mr Harding that the provision of a deeper setback would provide a "breathing space" between the proposed boarding houses and the adjoining neighbours. But that is not within the scope of the appeal. The relevant question is whether, after consideration of the amelioration measures contained within the application the impacts that arise from the proximity of the boarding house use to the adjoining properties is reasonable;
7. For the following reasons I find that the likely impacts of the development on the locality (s79C(1)(b) of the Act) are not reasonable and warrant the refusal of the applications. 1. The alterations and additions proposed to the rear of 21 and 23 Harbourne Road have a poor address to Meeks Lane, and along with the dominance of vehicular access and parking on both properties, will contribute negatively to the streetscape of Meeks Lane; 2. The applicant has utilised extensive obscure glazing to minimise overlooking both between the subject properties and to the neighbours. On the basis of the site inspection and a review of the plans I accept the evidence of Mr Harding [at paragraph 59] that some instances remain and I find that these will impact the visual privacy of residents. I accept the oral evidence of the adjoining residents that the intensity of this impact is higher in a boarding house, over that from the existing residential dwellings, as the frequency of occupation of the bedrooms is greater. 3. The applicant has not provided any acoustic evidence (raised in the Councils Statement of Facts and Contentions at B2) to address the potential for noise impacts from the development. Whilst the plan of management for the developments (Exhibit 3, 10) identifies the following house rules there is no certainty that the development will operate in a manner that will mitigate any acoustic impacts on neighbours or between the proposed boarding house uses: 27. No live or amplified music is permitted in the communal open space area nor is music to be audible beyond individual rooms. 28. The common area is not to be used between 9pm and 7am the following day. 1. In the absence of an acoustic report it is not possible to assess the potential impacts of noise generated from the internal communal spaces. 2. I note that at C4 cl 2.4(vii) of DCP 2013 an acoustic report is required for any development application seeking conversion or intensification of a boarding house. The report is required to: a) establish the existing background noise levels; b) identify all potential noise sources from the operation of the premises, including any mechanical plant and equipment; c) estimate the level of potential noise emission; d) establish desirable acoustics performance criteria; and e) recommend any mitigation measures (such as sound proofing construction and/or management practices) required to achieve relevant noise criteria.
8. In the absence of any acoustic modelling for the use sought I have insufficient evidence to conclude that the mitigation measures proposed in the plan of management are sufficient, or will be effective to ameliorate the impacts on adjoining neighbours, or how those impacts compare with the impacts they have experienced from the use to date. Alternatively I have not means of concluding that the impacts that will arise from the change of use are reasonable in the circumstances.
9. This is consistent with the Courts approach to consideration of whether a management plan is appropriate for a particular use. The reasoning is outlined in the form of the questions posed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54], as revised in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72]. In this case in the absence of any background noise levels or acoustic modelling it is not possible to determine whether the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome (test four).
10. The aims of the LEP 2013 include in cl 1.2(2)((g) to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick. The objectives of the R3 zone include an objective to protect the amenity of residents and to encourage housing affordability. Consistent with BGP Properties Pty Ltd v Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237 per McClellan CJ at [117] "where the zoning of land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of the site". In this case I find that giving weight to the objective to encourage affordable housing does not outweigh the inherent flaws in the application.
11. For the reasons outlined in the preceding paragraphs, I am satisfied that the change of use sought by the applications will likely have an unacceptable impact on the built environment in the locality (s79C(1)(b)), such that the application warrants refusal.

Internal Amenity of the Proposal

1. For completeness in relation to the question of whether the proposal provides appropriate amenity to future boarding house residents I find that the application fails to meet the following requirements of DCP 2013: 2.1 Boarding Rooms i) Orientate to receive the maximum amount of sunlight; ii) Provide a balcony, terrace or window opening to outdoor areas for natural light and ventilation; and …
2. I accept and prefer the evidence of Mr Harding [at paragraph 74] that the development provides poor pedestrian access to 23 Harbourne Road from Meeks Lane and in requiring entry through the ground floor living area renders that space unsuitable for its use.
3. Finally I find that the reliance on obscure glazing to obviate the privacy impacts that arise from windows in close proximity to the boundary has the effect of diminishing the internal amenity of the boarding rooms to an unsatisfactory level.
4. Due to poor internal site planning the positioning of waste collection will have a likely detrimental impact on the enjoyment of the communal kitchen and living space at the ground floor of 21 Harbourne Road due to odour.
5. These impacts result in the developments failing to meet the objectives of the boarding house controls in DCP 2013 at C4.1.1, namely "to achieve high standards of amenity for boarding house residents and surrounding neighbours through effective design and management controls" (Exhibit 2, 9). There is no reason why affordable housing should not provide a high level of amenity and in this case I do not consider that it would be in the public interest to approve a development that has an inferior level of internal amenity.

Amber Light

1. During the course of the proceedings the applicant sought to tender further amended plans that were responsive to the evidence of the planning experts. Council's initial review of the plans was that they were not dispositive of the issues in the proceedings.
2. The intent of the applicant in tendering this alternative was for the Court to consider whether directions, seeking the applicant to amend the design consistent with this proposal, were an appropriate outcome in this matter. This approach has been referred to by the Court as an "Amber Light" and is described in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [66] as follows: 66. It has been a consistent approach of the Court, over recent years in development appeal proceedings to assess proposal on what has been described as an "amber light" basis. This approach means that the Court not only considered the question of whether the proposal should be approved in the form that is before the Court but also asking whether the proposal is capable of approval, with specified modifications imposed by the Court, within the scope of the present proceedings. It is in that fashion that I approach the present appeal. 67. Indeed, consistent with this approach, during the course of the expert evidence in all three disciplines - planning, heritage and arboriculture - that I tested a number of "what if?" propositions on those experts. Such propositions were put not on the basis that I had reached even any tentative conclusions concerning any aspect of the proposal but in order to explore whether there were any modifications to the proposal that would cause the council to indicate that an acceptable design had been achieved if such modifications were to be adopted by the Society.
3. In the current proceedings the amended plans were produced following, and the applicant argues in response to, the concurrent evidence of the planning experts.
4. In his decision in Luxe Manly Pty Ltd v Northern Beaches Council [2016] NSWLEC 156 Sheahan J identifies [at 33] that the "amber light" approach either arises from the bench or from a party who requests the opportunity, usually as a backup position, secondary to its primary claim that its proposal should be accepted . At [35] Sheahan J, by reference to previous cases, summarises the characteristics of the scope of changes sought in an amber light approach as follows: the suggested amendments must not significantly alter that proposal, they must have merit, be identifiable and have a scope that is easy to address (Ali v Liverpool City Council [2009] NSWLEC 1327 at [120]). Relevantly Sheanan J concludes at [36]: They may, but not necessarily should, render the proposal before the Court acceptable to the respondent consent authority (Benevolent, at [67], Ali, at [286]).
5. In contrast to the approach outlined by Moore, SC in Benevolent Society v Waverley Council the amended plans were tabled with the Court following the completion of the concurrent evidence of the planning experts.
6. Whilst the plans produced do respond to some detailed assessment undertaken by the planners of the proposal, and make potentially positive amendments, I am not satisfied in the absence of an acoustic assessment I can be sufficiently certain of the impacts of the development to identify the scope of changes that would render the development satisfactory.
7. On the basis of the above I have made no orders in relation to these plans.

Findings

1. I find that the likely impacts of the development on the locality (s79C(1)(b) of the Act) are not reasonable and warrant the refusal of the applications.
2. I am satisfied that the change of use sought by the applications will have an unacceptable impact on the built environment in the locality (s79C(1)(b)), such that the application warrants refusal.

Costs

1. As noted in paragraph [3] the applicant sought and was granted leave to rely on amended plans. The Council accepted the amendments were minor and sought no order in relation to costs. I am satisfied that the amended plans to not meet the tests outlined in Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 at [3] and as such no costs order follows.

Appeal 2016/00343150 1. The applicant is granted leave to rely on the amended plans prepared by ES Engineering and Design, dated 10 August 2017, Issue F; 2. No order as to costs; 3. The appeal is dismissed 4. Development Application number DA/404/2015 for the change of use of a dwelling house at 23 Harbourne Road to a boarding house is refused; 5. Exhibits are returned with the exception of Exhibit 1, A and E.

Appeal 2016/00343191 1. The applicant is granted leave to rely on the amended plans prepared by ES Engineering and Design, dated 10 August 2017, Issue F; 2. No order as to costs; 3. The appeal is dismissed 4. Development Application number DA/736/2014for the change of use of a dwelling house at 21 Harbourne Road to a boarding house is refused; 5. Exhibits are returned with the exception of Exhibit 8, B and F. ……………. D M Dickson Commissioner of the Court

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