Consideration
21The Council's position is that the matters identified in its contentions have been addressed by the amendments to the plans or in the proposed conditions.
22Considering first, compliance with the numerical standards applicable to the proposed development under the AH SEPP and the Council's planning controls. The proposed development complies with the height and FSR requirements imposed by the LEP, and thus cl 29(1) and (2)(a). I accept the agreed evidence of the planners that it satisfies cl 29(2)(c) and (d). Clause 29(2)(e)(i) would require 2 car parking spaces; the proposed development following the amendment to the plans provides 5 car parking spaces. I accept the agreed evidence that units 1, 2 and 10 have a gross floor area of less than 16sqm, and under cl 29(2)(f) could not be occupied by more than one lodger; the parties have agreed on a condition (condition 9) limiting use of units 1, 2 and 10 to no more than one adult lodger; units 4, 5, 6,7, 8 and 9 to no more than two adult lodgers; and the manager's unit to no more than two persons. The total number of potential residents consistent with that condition is 17. The proposed development provides a communal living room at the rear of the ground floor and complies with cl 30(1)(a); the proposed development complies with cl 30(1)(b), (c) (as required by condition 9), and (d). The amended plans now provide for bicycle and motorcycle parking in compliance with cl 30(1)(h). Clause 2.9 of the DCP would require 10 spaces, however that provision is inconsistent with cl 29(2)(e) of the AH SEPP and does not apply to the proposed development: s 74C(5) of the Act.
23The proposed building is set back 6m from the front boundary which is less than the 9m specified at section 2.2 of the DCP. Point 2 notes:
Notwithstanding requirement 1, developments may be setback less than 9 metres where the predominant setback in the street block is less than 9 metres or the setback would not conflict with the existing streetscape.
24The front setback for the proposed building is consistent with that of the neighbouring dwelling at 14 Hillcrest Avenue and with the substation on the adjoining northern property. I accept the agreed evidence of the planners that in that context, and with the provision of landscaping as proposed in the plans, that point 2 is satisfied and it is appropriate not to require compliance with the numerical provision. The proposed conditions include a deferred commencement condition requiring provision, within six months, of a detailed landscape plan to be approved by the Council.
25In considering the character of the area as required by cl 30A of the AH SEPP, and by section 2.5 of the DCP, I accept the agreed evidence of the planners that the site is located in an area in transition. While the existing dwelling on the site, and those along the eastern side of Hillcrest Avenue to the south, are single storey detached dwellings, there are two storey new dwellings under construction to the north at the intersection with Hill Street, and a new two storey dwelling under construction and the large two storey townhouse development on the opposite side of the street. The proposed development is similar in scale and nature to those newer developments and is consistent with the anticipated FSR for the zone of 0.65:1 for a block of its size. Applying the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, and considering whether the proposed development is "capable of existing together in harmony" with both existing development in the area and that contemplated under the LEP, I am satisfied that the proposed development is not inconsistent with the character of the area.
26The Council initially contended that the proposed development is an overdevelopment of the site in terms of residential density. I accept the agreed evidence of the planners that having regard to the FSR of the development as now proposed and its compliance with the rear setback requirements in the DCP, that it is appropriate in terms of residential density.
27The Council initially contended that the proposed development would have an adverse impact on the amenity of residents of adjoining and neighbouring properties in terms of overshadowing, noise, and privacy impacts. The planning experts agreed that the applicable control for overshadowing is section 2.4.2 of the DCP which requires that solar access to the windows of habitable rooms and to the majority of open space of adjoining properties be substantially maintained or achieved for a minimum of 3 hours between 9am and 3pm at the winter solstice. The adjoining property to the south, No 14 Hillcrest Avenue, has a door and two windows on its northern elevation. Based on the plans and the shadow diagrams provided in exhibit A, I accept the agreed planning evidence that the rear yard of No 14 maintains solar access until mid morning and is affected by new shadow throughout the afternoon, and that from noon there would be solar access for the front room of that dwelling. While that is a reduction in solar access, I accept the agreed evidence of the planners that given the orientation of the subject site and its neighbours, which is a matter identified in section 2.4.2 (requirement 1), it is inevitable that the property to the south would be affected by a degree of shadow for a new two storey dwelling on the subject site. In circumstances where the proposed building complies with the applicable side and rear setback, height and FSR controls, I accept their evidence that the degree of shadow is reasonable.
28In terms of privacy and noise, the plans provide for privacy screens on the southern sides of both the ground and first floor, and landscaping along the southern side boundary. Proposed condition 11 requires that the privacy screens be angled so as to eliminate the potential for overlooking of the adjoining property to the south. The rear setback complies with the 6m required under the DCP, and landscaping is proposed for the common open space area. Proposed condition 12 provides that the outdoor communal open space is not to be used between the hours of 10pm and 8am and is to be limited to use by a maximum of either persons at any one time. No restriction is proposed for the communal living room, the planners agreeing that the size of that room would limit the number of persons using it any one time. The primary access from that room to the outdoor area is from doors at the rear. The planners agreed that the orientation of all units to the northern aspect, including provision of private open space for the ground floor units on the northern side of the building, would reduce potential privacy and noise impacts to the property to the south. I accept the agreed expert evidence and I am satisfied that the proposed development in the form now reflected in the amended plans does not have an unacceptable impact on the amenity of the adjoining properties.
29The planners agreed that access from the building to the communal open space is appropriate, with access from both sides of the building and requiring three or four steps on the northern side.
30The Council initially contended that the proposed development would be likely to increase traffic congestion in Hillcrest Avenue and the local area. Concerns for traffic congestion and parking issues were identified in many of the objections made to the Council and at the site view. I accept the expert evidence of Mr Corbett as to the likely increase in vehicle movements attributable to the proposed development, which is based on his expertise and on RMS guidelines. I accept his evidence that the difference in timing of traffic for school drop off and pick up, activities at the Shree Shirdi Sai Mandir temple, and likely vehicle movements generated by the proposed development, mean that a significant adverse impact on the capacity of the local street network is not likely.
31The issue of safety and amenity of residents given the proximity to the Ausgrid electricity substation was raised in the contentions. The Council's bundle includes correspondence from Ausgrid (exhibit 4, tab 5) providing its requirements for noise assessment and exposure to electric and magnetic fields; those requirements have been incorporated in the proposed conditions (conditions 13-18).
32I am satisfied that the matters identified in the Council's contentions have been addressed. The matters raised in the objections included in addition a concern for impact on amenity and safety of existing residents arising from the nature of the development, as a boarding house, and its potential residents. As was the case in Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167, I accept that these concerns may be genuinely held. However, in the absence of substantive, objective evidence that such fears are likely to be realised, I accept the approach agreed by the Council that it is not appropriate to give them weight in the assessment process. I note that the proposed development as a boarding house is permissible with consent both under the AH SEPP as a matter of State policy, and also under the recently adopted Council planning controls in the LEP. I also note that the proposed conditions require, as a deferred commencement condition, provision of a Plan of Management for the ongoing operation of the boarding house to be approved by the Council, and in condition 7 a requirement that the use of the land be carried out at all times in accordance with that Plan of Management.