COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 238/19 for the demolition of all structures, removal and pruning of trees, and construction of a four storey boarding house comprising 12 rooms and capable of accommodating a maximum of 17 lodgers including a manager (the proposal) at 21 Christie Street, Wollstonecraft (the site) by North Sydney Council (the Council).
The appeal was subject to conciliation on 10 June 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 8 July 2020 for the applicant to amend the application by relying on amended drawings subject to an order that the applicant pay the costs of the Council thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act.
[2]
Issues
The Council's contentions can be summarised as:
The application fails to satisfy the requirements of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) with regard to landscaped area, solar access, private open space, parking and compatibility with character of the local area.
The application fails to satisfy Part B Section 4 of the North Sydney Development Control Plan 2013 (DCP 2013) with regard to communal living areas, shared facilities and private open space.
The proposal has a 300mm setback from the southern boundary at Level 1 and a section of building A at levels 2 and 3, a section of Building B at levels 2, 3 and 4. This is uncharacteristic of the area and inconsistent with the planning principle in Galea v Marrickville Council [2005] NSWLEC 113.
SEPP ARH requires 6 parking spaces and none are proposed. Street parking in the street is restricted.
The bulk and scale of the proposal is unsatisfactory with regard to what is permissible on the adjoining and surrounding sites in the R4 High Density Residential zone and the proposal is not in keeping with the existing or desired future character of the locality. The adjacent residential flat building at 17 Christie Street is not characteristic of the street as it was built prior to the current controls and therefore not considered a precedent to allow unacceptable bulk and scale. The proposed site coverage and landscaping is uncharacteristic, resulting in a large building on a small site that is inconsistent with development permissible on surrounding sites.
The proposed building is inconsistent with permissible surrounding development in terms of side and rear setbacks, and is a severe restriction on the amount of landscaped area necessary to provide amenity to the surrounding area.
The proposal would have adverse impacts on the neighbours with regard to privacy, noise, overshadowing and excavation.
Approval of the proposal would be contrary to the public interest.
[3]
The site and its context
The site is on the eastern side of Christie Street, to the south of Oxley Street.
The site has an area of 300sqm and a frontage to Christie Street of 6.095m (Ex F, tab 6 and Ex A dwg A002 Rev F). The site contains a dwelling and a shed. The site falls over 4m from the rear boundary to the street front.
The government owned public housing residential flat building at 17-19 Christie Street is nine storeys and the northern face of the balconies of the residential flat building is setback 4.57m from the shared boundary (Ex A dwg A003 Rev F).
The residential flat building at 23-25 Christie Street is two storeys over a basement carpark and is divided into a front and rear building. The southern façade of the residential flat building is 2.57m from the shared boundary (Ex A dwg A003 Rev F).
The lot sizes on the eastern side of Christie Street are varied.
[4]
The proposal
The proposal includes the following accommodation:
2 motorcycle parking spaces in the front setback;
Ground Floor: Building A - entry, waste storage and bike storage; lift to Level 1 and stair;
Level 1: Building A - accessible single boarding room and managers double room; Building B - accessible single boarding room and communal living area opening onto an area of communal open space;
Level 2: Building A - double boarding room and single boarding room; Building B - double boarding room and single boarding room;
Level 3: Building A - rooftop communal open space and single boarding room; Building B - double boarding room and single boarding room;
Level 4: Building B - double boarding room and single boarding room.
All boarding rooms and the manager's room have an en suite bathroom and kitchenette. All but one room have a private balcony and the manager's room has an area of private open space.
The circulation corridor connecting Building A and Building B on Level 1, and part of Room 1 and the communal living area, are setback 156mm and 300mm from the southern side boundary and a section of the corridor is located on the shared boundary. The southern elevation of the corridor is constructed from glass bricks. On the upper levels, a section of both Buildings A and B, for the stair landing and entries to rooms, are setback 300mm from the southern side boundary. The remainder of the southern elevation is setback either 1m or 1.2m from the southern side boundary.
The side setback on the northern side of the proposal is 1m. The rear setback is 4.346m.
[5]
Planning framework
The application is made pursuant to Pt 2, Div 3 of SEPP ARH. Division 3 applies to the site at cl 26(d).
Clause 29(2) of SEPP ARH is in the following terms:
29 Standards that cannot be used to refuse consent
…
(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds -
(a) building height
if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,
(b) landscaped area
if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,
(c) solar access
where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,
(d) private open space
if at least the following private open space areas are provided (other than the front setback area) -
(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,
(ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,
(e) parking
if -
(i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and
(ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and
(iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and
(iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,
(f) accommodation size
if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least -
(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or
(ii) 16 square metres in any other case.
(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.
(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
Clause 30 of SEPP ARH is in the following terms:
30 Standards for boarding houses
(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following -
(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,
(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,
(c) no boarding room will be occupied by more than 2 adult lodgers,
(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,
(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,
(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,
(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.
Clause 30A of 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 site is zoned R4 High Density Residential pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the R4 zone, to which regard must be had, are:
• 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.
• To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.
• To ensure that a reasonably high level of residential amenity is achieved and maintained.
The height of buildings development standard for the site is 12m (Height of Buildings Map Sheet HOB_001 of LEP 2013). There is no floor space ratio (FSR) development standard for the site (Floor Space Ratio Map - Sheet FSR_001 of LEP 2013). The parties agreed that the proposal complies with the height of buildings development standard.
The adjoining government owned property to the south of the site, at 17-19 Christie Street, has a unique height of buildings development standard of 30m and contains a nine storey residential flat building comprising public housing apartments. The properties between 17-19 Christie Street and River Lane have a height of buildings development standard of 12m.
The properties on the opposite side of Christie Street are zoned R3 Medium Density Residential and have a height of buildings development standard of 8.5m.
DCP 2013 applies to the site at Part A Section 1.2.
The objective for solar access, at Part B Section 1.3.7, is to ensure that all dwelling have reasonable access to sunlight and daylight. P1 of Section 1.3.7 states that developments should be designed and sited such that solar access at the winter solstice provides a minimum of 3 hours between the hours of 9am and 3pm to the windows of main internal living areas, principal private open space areas and communal open space areas located on the subject property and any adjoining residential properties. P1 is further qualified in relation to residential flat buildings at P2, which states that despite P1, living rooms and private open spaces for at least 70% of dwellings within a residential flat building should receive a minimum of 2 hours of solar access between the hours of 9am and 3pm on the winter solstice.
The objective for visual privacy, at Part B Section 1.3.10, is to ensure that existing and future residents are provided with a reasonable level of visual privacy. The provisions of Section 1.3.10 do not specifically address a boarding house use.
The objectives for setbacks, at Part B Section 1.4.6 are:
"O1 To reinforce the characteristic pattern of setbacks and building orientation within the street.
O2 To control the bulk and scale of buildings.
O3 To provide separation between buildings.
O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access."
The provisions for setbacks for the R4 zone are categorised for use in Table B-1.5, which is referred to under P2. A boarding house, on land with a height limit of 12m or less, is to have a minimum setback of 3m and includes a height plane commencing at 3.5m above existing ground level from side boundaries and projecting internally to the site at 45 degrees (Figure B-1.3). The parties agreed that the proposal cannot comply with the 3m side setback control for boarding houses in DCP 2013, because the site is 6.095m wide.
The Court's planning principle for building on the boundary in residential areas in Galea v Marrickville Council [2005] NSWLEC 113 at [17] is incorporated into DCP 2013 at Section 1.4.6. Despite purporting to be a summary of the Court's planning principle, the wording of the planning principle has been altered to change the meaning of the questions.
The site coverage provisions at Part B Section 1.5.5 do not apply to boarding houses.
The relevant objectives for landscaped area, at Part B Section 1.5.6, are as follows:
"(a) promote the character of the neighbourhood;
(b) provide useable private open space for the enjoyment of residents;
(c) provide a landscaped buffer between adjoining properties;
(d) maximise retention and absorption of surface drainage water on site;
(f) promote substantial landscaping, that includes the planting of trees that when mature will have significant canopy cover;
(g) control site density;
(h) minimise site disturbance;
(i) contributes to streetscape and amenity;
(j) allows light to penetrate between buildings;
…"
There are no provisions under Section 1.5.6 that apply to boarding houses.
P2 of Part B Section 1.5.7 for landscaping states that existing trees are to be retained wherever practical.
Part B Section 4 of DCP 2013 addresses objectives and provisions for boarding houses. The general objectives for boarding houses, at Section 4.1.1, include the following:
"…
O2 differ from self contained accommodation by the provision of shared facilities,
O3 are appropriately designed in terms of bulk and scale, and residential amenity including internal layout
…"
Provision 4 of Section 4.2.2 states that indoor common living rooms should be located so that at least one communal living room is capable of receiving more than three hours sunlight between 9am and 3pm at midwinter.
The provisions for landscaped area, at Part B Section 4.3.2, include the following:
"P1 Use fencing, screen planting and structures to define the landscaped area.
P2 Set aside an area of the site, immediately adjacent to the main circulation route, rear entry or ground floor common living or activity areas, as landscaped area for the lodgers of the boarding house.
P3 Use screen planting and trees to block views of the landscaped area from public places and views to and from nearby properties."
Part B Section 10 of DCP 2013 addresses objectives and provisions for parking. The maximum parking rate for boarding houses, at P1 and Table B-10.1, is one space per 12 beds. The on-site car parking is not to exceed the maximum rate, at P1.
The desired future character for the Waverton/Wollstonecraft Planning Area, at Part C Section 10.2.2 includes the following under 'Diversity':
P1 Predominantly residential accommodation, comprising
(a) Residential flat buildings on garden lots, according to zone.
(b) Attached dwellings and multi dwelling housing, according to zone.
(c) Dwelling houses and dual occupancies, particularly in the Balfour and Carlyle Street area.
(d) Rows of semi-detached housing in Sinclair Street.
P2 Supporting community facilities such as educational establishments and health care facilities.
P3 Provide a range of high quality, purpose-built student accommodation in and around the Education Precinct, within 400m to a tertiary institution, 800m to a railway station, and 400m to a bus stop used by a regular bus service.
[6]
Public submissions
The Council provided the written submissions objecting to the proposal in the Council's bundle of documents (Ex 5).
One objector gave evidence at the commencement of the hearing via Microsoft Teams. The objector gave evidence on behalf of his son who resides in the residential flat building at 27 Christie Street. His concerns can be summarised as:
The proposal does not provide any car parking spaces and the applicant cannot rely on the provision of Go-Get cars because they are not always available. Residents of the proposal may have cars provided by their employer. The two accessible rooms within the proposal should be provided with accessible car parking spaces.
Emergency vehicles cannot access the site.
The side setbacks of the proposal are inadequate and will result in the future residents overlooking the residents of the residential flat building at 17-19 Christie Street.
The proposal would result in significant negative impacts with no off-setting benefits.
[7]
Expert evidence
The applicant relied on the expert evidence of Ross Jackson (arboriculture), Bernard Moroz (planning) and Paul Corbett (traffic engineer).
The Council relied on the expert evidence of Justin Daly (arboriculture) and Geoff Mossemenear (planning and parking).
[8]
Landscaping
The arboricultural experts disagreed on whether the landscape treatment of the front setback of the proposal would be compatible with the streetscape. According to Mr Daly, the streetscape is predominantly characterised by one and two storey residences with generous front setbacks, which include landscaping that softens the appearance of the buildings In his view, the proposed front setback is inadequate for the bulk and scale of the proposal and a large proportion of the landscaped area in the front setback is located under the cantilevered form of the building above and is paved. According to Mr Jackson, the streetscape is varied, some properties have significant landscaping, and some have less. He noted that the proposed landscaping covers approximately 50% of the front setback.
The arboricultural experts disagreed on the effects of the proposal on a tree identified as Tree 4 (Triadica sebiferum). Tree 4 is located on the adjoining property to the north, 23-25 Christie Street, 800mm from the shared boundary and 10.6m from the street boundary (Ex E, Annexure 3). The southern branches of Tree 4 overhang the site. The proposal is to prune branches of the tree which, according to Mr Jackson, comprise 25% of the tree canopy and to tie branches back to avoid unnecessary pruning (Ex F, tab 5, p 7). According to Mr Daly, the corresponding northern branches to the branches proposed to be removed will also need to be removed to balance the canopy of Tree 4 and this will amount to a greater proportion of the tree being pruned than estimated by Mr Jackson, leaving a compromised tree that will not provide any meaningful amenity.
Trees 5 and 6 (Ficus benjamina) are proposed to be removed because they are located centrally in the rear portion of the site and, according to the applicant, sterilise the development potential of the rear half of the site (Ex F, tab 5, p 7).
The arboricultural experts disagreed on the effect of the proposal to plant dwarf Lilly Pillys along the 1m northern side setback. In Mr Daly's view, the setbacks of the proposal are inadequate for landscaping, replacement canopy trees and useable private open space.
[9]
Planning
Mr Mossemenear preferred the motorcycle path be moved to the northern side of the front setback, to preserve on-street parking (Ex 3, Appendix 14). The applicant agreed a condition of consent could be imposed to achieve this outcome.
The planning experts agreed that the site has been isolated by the consolidation and development of adjoining lots and that the site is not likely to be consolidated with an adjoining lot. Mr Mossemenear noted that the eastern side of Christie Street has been redeveloped and the character is now set and is characterised by residential flat buildings of varying scales.
The planning experts agreed that the site has excellent access to multiple forms of public transport, including St Leonards Railway Station within 400m of the site, the future Crows Nest Metro Station within 200m of the site and nearby bus stops. The planning experts agreed there is a "disconnect" between the provision in DCP 2013 for a maximum of one car parking space for the proposal and the non-refusal standard of six car parking spaces under SEPP ARH.
According to Mr Mossemenear, the insufficient southern side setback of the proposal results in unacceptable overshadowing of the adjoining property. Mr Mossemenear noted that there are no buildings nearby with a wall on or near a shared boundary to the extent proposed by this application. In his view, the proposal fails the planning principle test in Part B Section 1.4.6 of DCP 2013.
[10]
Consideration
This site is significantly constrained by the narrow width of the site and its small area for a site zoned R4 High Density Residential. I accept and agree with the evidence of the planning experts that this site is a remnant single dwelling small lot from an early subdivision that has been isolated by the consolidation and development of adjoining and nearby lots.
The Council submitted that a boarding house on the site is acceptable. The fundamental issue between the parties is the scale of the development on this constrained site. The Council submitted that the proposal is an overdevelopment of the site, as demonstrated by the insufficient southern side setback and the consequent overshadowing of the lower levels of the adjoining residential flat building's northern façade. The applicant submitted that the proposal is of a reasonable scale for a boarding house on a small site zoned for high density residential development.
[11]
Landscaping
I am satisfied that the proposed landscape treatment of the front setback area is compatible with the streetscape and that the landscaped area of the front setback and satisfies the non-refusal standard under cl 29(2)(b) of SEPP ARH. The depth of the front setback is consistent with the front setback of the residential flat building to the north and the front setback is appropriately landscaped with a path for pedestrians and motorbikes. The building over the ground level is not cantilevered, it is supported on columns. The soft landscaping extends into the undercroft area on the ground level. The landscaping of front setbacks in the streetscape is varied. The scale, density and depth of front setbacks of the surrounding development is that of a medium to high density residential area. In the R3 zone on the opposite side of the street, development is close to the street front boundary, with modest and contained areas of landscaping. The proposed front setback landscaping is consistent with the setback depth and character of the landscaping on the adjoining sites to the north and south.
The proposed pruning of Tree 4 is acceptable. The retention of the full canopy of Tree 4 would unduly compromise the development potential of the front of the site and require any building on the site to be setback significantly behind the front building line established by adjoining developments. It is appropriate in my view to prioritise a fairly consistent front setback on the eastern side of this portion of Christie Street over the retention of the full canopy of Tree 4.
I accept the applicant's position that the retention of Trees 5 and 6 would compromise the development potential of the site. The canopies of Trees 5 and 6 occupy the full width of the site and a large portion of the rear half of the site. The retention of Trees 5 and 6 would require the deletion of Building B. The rear building of the residential flat building to the north of the site, at 23-25 Christie Street, extends to the rear of the site, with a narrow rear setback. The amenity afforded by Trees 5 and 6 to the rear building on the adjoining property is borrowed amenity over the site. I am satisfied that it is not practical to retain Trees 5 and 6 because the retention of those trees would unduly compromise any development on the site achieving the objectives of the high density residential zone.
I am satisfied that the proposed landscaping of the northern side setback is appropriate because it provides a generous strip of deep soil for the full length of the site, when compared to the overall width of the site, and the soft landscaping will provide some screening of the lower levels of the proposal when viewed from the adjoining property to the north.
I am satisfied that the proposed landscaping (Ex B) achieves the objectives for landscaped areas under Part B Section 4.3.1 of DCP 2013. The access to communal open space has been designed to meet the needs of the lodgers, because there are two areas of communal open space, one is accessible, and both provide good amenity; the communal open space areas are sufficiently private from adjoining development as a result of the proposed planting; and the communal open space is clearly separated from any private open space.
[12]
Planning
I accept the agreement of the parties that the front setback layout shown in the amended plan Ex 3, Appendix 14 is preferable so that the crossover for motorcycle access to the site preserves an on-street parking space. This amendment has been made to the plans A002 Issue G dated 21 December 2020, listed under condition 1 of the conditions at Annexure A and the amended plan is at Annexure B.
There is no conflict between the non-refusal standard for six car parking spaces under cl 29(2)(e)(iia) of SEPP ARH and the maximum parking rate of one car parking space under Table B-10.1 of DCP 2013. The two provisions deal with different matters. The non-refusal standards under cl 29(2) of SEPP ARH do not mandate compliance, they are qualitative and quantitative criteria that merely set thresholds that when met, remove a discretionary basis for refusal of consent. There is no standard under cl 29(2)(e)(iia) requiring the proposal to provide six car parking spaces. The provision under P1 of Part B Section 10.2.1 of DCP 2013 sets a maximum rate for on-site car parking, based on use. The maximum rate for a boarding house is one car parking space per 12 boarding rooms. If a proposal exceeds the maximum on-site car parking rate stated in Table B-10.1, the maximum rate is to be flexibly applied and reasonable alternative solutions that achieve the objects of the standard are to be allowed, pursuant to s 4.15(3A) of the EPA Act. The proposal, with no on-site car parking, complies with the maximum rate permitted for this use under Part B Section 10.2.1 of DCP 2013.
I accept the agreement of the planning experts that the site has excellent access to public transport. The on-street parking is restricted, and I accept the agreed evidence of the planning experts that the proposal will be entitled to two resident parking permits. I accept the applicant's observation that DCP 2013 has a deliberate, locally targeted approach to constraining car parking for the purpose of minimising car use. I accept the applicant's submission that the future residents of this development will self-select and those potential residents who require car parking will choose other accommodation. On-site parking on this narrow site would dominate the front elevation of any development and would require a significant proportion of the front setback to be a hard surface. On the basis of all of the evidence before me regarding parking, I am satisfied that it is appropriate for this boarding house on a constrained narrow site in a high density residential zone with excellent access to multiple modes of public transport not to include on-site car parking.
Mr Mossemenear tested the proposal against the site coverage and landscaped area numerical controls for residential flat buildings under DCP 2013 and concluded that the proposal cannot satisfy the controls that generally apply to development in the area. This is an inappropriate test to apply to the proposal. The aims of SEPP ARH include to facilitate the delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, FSR bonuses and non-discretionary development standards. Although the site does not have a FSR development standard and therefore the proposal cannot be availed of the FSR bonus under cl 29(1), SEPP ARH is intended to promote affordable rental housing and I do not accept that a proposal for a boarding house under SEPP ARH should be constrained to a building envelope specified for a residential flat building.
Ex A dwg A011 Issue F demonstrates that the communal living room receives a minimum of 3 hours direct sunlight during the morning on the winter solstice.
I accept the Council's, and Mr Mossemenear's, criticism of the minimal southern side setback of the proposal, because it does preclude an opportunity for building separation and planting to be accommodated on the site and the proposal therefore relies on the adjoining large property to provide some physical separation between the proposed building envelope and the existing residential flat building. On balance, however, I accept that locating the building envelope of the proposal very close to the southern side boundary allows for the reasonable development of this isolated and constrained site in a manner that is consistent with its zoning. I am satisfied that the Level 1 southern side setback, which is nil for a portion of Building B on Level 1, does not cause any amenity impacts on the residential flat building at 17-19 Christie Street, because there are no privacy impacts, noise impacts or overshadowing impacts caused by the portion of the building envelope that is the corridor link between the two buildings located on and close to the southern, side boundary. The overshadowing impacts on the lower levels of the residential flat building at 17-19 Christie Street on the winter solstice are not caused by the Level 1 corridor which extends to the side boundary (as demonstrated by the analysis in Ex A dwgs A009 and 10 Issue F).
The overshadowing impacts on the lower levels of the residential flat building at 17-19 Christie Street on the winter solstice are fundamentally a result of the height of the proposal, which complies with the height of buildings development standard in LEP 2013, but not the height plane control under Part B Section 1.4.6 of DCP 2013. The majority of the uppermost southern parapets of Buildings A and B are setback 1.2m from the southern side boundary, with only a short length of each building's parapet setback 300mm from the southern side boundary. I am satisfied that the 1.2m setback of the southern parapets of the rear of Building A and the length of Building B, with a short length of each building's parapet setback 300mm from the southern side boundary, is reasonable to achieve a high density residential development for affordable housing on this narrow site. The southern side setback of the proposal achieves the objectives for setbacks at Part B Section 1.4.6 of DCP 2013, because the proposed building envelope fits neatly into the varied scale of development in the R4 zone, there is sufficient separation between the proposal and the residential flat building at 17-19 Christie Street and the proposal preserves the existing amenity of the residential flat building at 17-19 Christie Street. The solar access afforded to the existing residential flat building to the south of the site meets the requirement for 70% of dwellings in a residential flat building to receive a minimum of 2 hours of sunlight between 9am and 3pm on the winter solstice, under P2 of Part B Section 1.3.7 of DCP 2013, because the overshadowing is confined to the lower levels of a nine storey building. The 5m separation between Buildings A and B on the site will provide some relief to the overshadowing of the northern façade of the lower levels of the residential flat building to the south of the site as the sun moves across the sky on the winter solstice. In addition, the agreed evidence is that each unit in the residential flat building at 17-19 Christie Street has dual aspects, which increases the opportunity for solar access to those affected units. Finally, given the 12m height of buildings development standard for the narrow site, which is to the north of a large residential flat building with a 4.57 side setback to its northern boundary, it is evident that the strategic planning exercise that informed LEP 2013 must have envisaged some overshadowing of the lower levels of the existing residential flat building at 17-19 Christie Street by the future development of the site.
I do not accept the Council's submission that the Court's planning principle in Galea v Marrickville Council [2003] NSWLEC 113, or the rewritten version of the Court's planning principle adopted by DCP 2013, is a relevant consideration in the assessment of this proposal. The site and the proposal are a unique circumstance generated by a small and narrow isolated site in the R4 zone. The portion of the proposal that has a nil setback to the southern, side boundary is limited to provide circulation between the two buildings of the proposal and the building envelope on the upper levels is further setback from the southern side boundary. As the adjoining affected site is government owned, it is likely that some arrangement can be negotiated for access over the adjoining site as necessary.
[13]
Deferred commencement condition requiring compliance with the Building Code of Australia
The Council proposed a deferred commencement condition requiring the applicant to prepare a Building Code of Australia (BCA) assessment report for the boarding house to detail all relevant deemed to satisfy provisions of the National Construction Code and to make recommendations to ensure compliance with these provisions. The Council submitted that this requirement should be imposed as a deferred commencement condition because it may require the future modification of the development consent.
The applicant opposed the deferred commencement condition. The applicant submitted that the condition was proposed because the original BCA report was based on the proposal that was the subject of the application, prior to the amendment of the application on 8 July 2020. A revised BCA report, addressing the proposal, was admitted into evidence as Ex G. The applicant submitted that the BCA Report (Ex G) details the various deemed-to-satisfy and/or performance based solutions to comply with the BCA requirements. As such, an operational condition requiring submission of certification of compliance at the construction certificate stage is reasonable and appropriate.
I do not accept the Council's submission that this requirement must necessarily be imposed as a deferred commencement condition. The Council's version of the condition is imposed as an operational condition at B1 of the conditions at Annexure A. Should the BCA report require the development consent be modified, the modification application can be lodged and determined prior to the lodgement of an application for a construction certificate.
[14]
Conclusion
I am satisfied, on the basis of all of the evidence before me, that the proposal complies with the height of buildings development standard under cl 4.3 of LEP 2013; that the landscape treatment of the front setback area is compatible with the streetscape of Christie Street; that the communal living room receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter; that one area of at least 20sqm with a minimum dimension of 3m is provided for the use of the lodgers, and the manager's room has an adjacent open space area of at least 8sqm with a minimum dimension of 2.5m; and that the boarding rooms have an area of at least 12sqm for single rooms and 16sqm for double rooms; pursuant to the non-refusal standards under cl 29(2) of SEPP ARH.
The proposal complies with the standards for boarding houses at cl 30 of SEPP ARH.
I am satisfied that the design of the proposal is compatible with the character of the local area, because it is consistent with the objectives of the R4 zone. The existing local character of the area is diverse, because the subdivision pattern is now so varied in lot sizes and the development, particularly on the eastern side of Christie Street, is commensurate to its lot size. This is further exacerbated by the significant bulk and height of the government owned nine storey residential flat building adjoining this much smaller site. The proposal is a well designed slot building that fits comfortably into the scale of development on the eastern side of Christie Street and maintains the high and medium density residential character of the local area.
[15]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 238/19 for the demolition of all structures, removal and pruning of trees and construction of a four storey boarding house comprising 12 rooms and capable of accommodating a maximum of 17 lodgers including a manager, at 21 Christie Street, Wollstonecraft, is approved, subject to the conditions of consent at Annexure A.
3. The exhibits, other than exhibits 1, 2, A, B and F, are returned.
[16]
Commissioner of the Court
Annexure A (353249, pdf)
Annexure B (1151019, pdf)
[17]
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Decision last updated: 27 January 2021