Bhuiyan v Canterbury-Bankstown Council - [2021] NSWLEC 1622 - NSWLEC 2021 case summary — Zoe

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Bhuiyan v Canterbury-Bankstown Council

[2021] NSWLEC 1622

Land and Environment Court (NSW)|2021-05-28

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-05-28

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Introduction

COMMISSIONER: This is an appeal against the refusal by Canterbury-Bankstown Council (Council), of Development Application No 454/2018 (the DA) for land at 35-37 Shadforth Street, Wiley Park (the Site). The DA as submitted to Council seeks consent for the demolition of existing structures, removal of trees and construction of a three storey boarding house development containing a total of 51 boarding rooms (10 single occupancy rooms and 41 double occupancy rooms, including one manager's room and three accessible rooms) with basement parking for 26 cars.

[2]

Background

The DA was submitted to Council on 17 October 2018 and notified to adjoining and nearby residents from 31 October 2018 to 21 November 2018. One submission was received objecting to the development, as tendered within Council's bundle of documents (Ex 5 Folio 470). On 29 March 2019 the Council requested additional information and on 30 September 2019 refused the DA on the basis of insufficient information upon which to carry out an assessment.
This Class 1 appeal was filed with the Court on 6 March 2020 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and on 1 May 2020 the Council filed its Statement of Facts and Contentions (SOFC). On 18 November 2020 the Parties participated in a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) that was held before Commissioner Gray. The s 34 conciliation conference was terminated on 21 January 2020.

[3]

The proposal

At the hearing I granted leave for the Applicant to rely on the amended plans referred to in the Joint Planning Report and additional documents, as follows 1. The Revision G Architectural Plans, which became Exhibit A in the proceedings. 2. The Issue F Landscape Plans, which became Exhibit B. 3. The BASIX Certificate number 1205069M dated 21 May 2021 (BASIX Certificate), (Ex C). 4. The Plan of Management Proposed Boarding House, prepared by Gus Fares Architects, dated 26 May 2021 (Plan of Management), (Ex D). 5. The Disability Access Report prepared by Lindsay Perry Access, dated 3 May 2021 (Disability Access Report), (Ex E). 6. Letter from HHH Consulting Pty Ltd dated 26 May 2021 and email from Ausgrid sent 26 November 2020, both relating to Ausgrid Power Connection (Ausgrid Correspondence), (Ex G). 7. Acoustic Assessment Report for DA Stage prepared by Far West Consulting Engineers dated 19 May 2021 (Acoustic Report), (Ex H). 8. A set of three plans (based on the Revision G Architectural Plans reference numbers A101, A102 and A103) with red markings showing the location of the mechanical ventilation ducts and services (Mechanical Ventilation Plans), (Ex J). 9. The Waste Management Plan Prepared by Dickens Solutions Pty Ltd dated October 2020 (Waste Management Plan), (Ex M). 10. The Survey Plan prepared by RGM revision B dated 23 October 2020, (Survey Plan), (Ex N). 11. The Traffic Impact Assessment prepared by APEX Engineers dated May 2021 (Traffic Assessment), (Ex 0).
Other documents filed with the Court as Part of the Class 1 Application that remained relevant were tendered as Exhibit L, including the Statement of Environmental Effects (SEE) at Exhibit L, Tab E.
The main changes between the Revision G Architectural Plans (Ex A) and the original DA plans that were refused by the Council and lodged with the Class 1 application can be summarised as follows: 1. The building envelope has been modified to decrease the size of the basement, step the north-western and south-eastern side walls and increase the side boundary setbacks. 2. The floor plans have been amended on all levels to fit within the revised building envelope, to include a laundry and increase the size of the Communal Living Room on the Ground Floor. The Second Floor plan has been amended to now include eight boarding rooms, with two levels including Mezzanine space in the roof. Four of the two-level boarding rooms are located at the front of the building and four at the rear. 3. The façade design, external materials and external finishes have all been amended and window openings adjusted consistent with the revised floor plans. The flat roof has been redesigned to a complex hipped and gable roof form, with dormer windows to the new Mezzanine level facing the front and rear. 4. The total number of boarding rooms, including the manager's room, has been reduced from 51 to 41, (now comprising 7 single rooms, 33 double rooms and the manager's room) resulting in a reduction in the total maximum number of lodgers from 90 to 73. 5. The floor space ratio (FSR) has reduced from 1.39:1 to 1.26:1, and the total number of parking spaces has reduced from 26 to 21 spaces, commensurate with the reduction in room numbers.

[9]

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the development, and in particular Division 3 which relates to boarding houses. Consistency of the development with the aims of the SEPP ARH (cl 3) was not in contention.
Clause 29(1)(c) of the SEPP ARH applies to the DA as the development is on land within a zone in which residential flat buildings are permitted and does not contain a heritage item, as identified in the Canterbury Local Environmental Plan 2012 (CLEP). Clause 29(1)(c) provides that a consent authority "must not refuse consent to development … on the grounds of density or scale" if the density and scale of the building, when expressed as a floor space ratio (FSR), is not more than the existing maximum FSR for any form of residential accommodation permitted on the land, plus 0.5:1 if the existing maximum FSR is 2.5:1 or less.
The maximum FSR permitted on this site is 1.4:1 calculated as 0.9:1, being the existing maximum FSR permitted under the provisions of cl 4.4 of the CLEP, plus 0.5:1 permitted under the provisions of cl 29(1)(c) of the SEPP ARH. The DA as amended has a FSR less than 1.4:1 and this was not in contention between the Parties.
Clause 29(2) of the SEPP ARH sets out six other grounds that cannot be used by a consent authority as grounds for refusal of a development application for boarding houses. The proposed development cannot be refused on any of these grounds for the following reasons:
Building height (cl 29(2)(a) of the SEPP ARH) - the maximum building height permitted in the CLEP is 11.5m and no part of the building exceeds this height. The Council contended that the plans did not include sufficient information to permit an accurate assessment of building height and did not show the mechanical exhaust which could potentially breach the height limit. This is addressed in my response to Contention 1.
Landscaped area (cl 29(2)(b) of the SEPP ARH) - I have considered the landscape treatment of the front setback area and find it is compatible with the streetscape. The Council contended that the landscape treatment was not compatible with the existing and desired landscape treatment of Shadforth Street. This is addressed in my response to Contention 6.
Solar access (cl 29(2)(c) of the SEPP ARH) - the communal living area on the Ground Floor receives the nominated three hours of solar access in mid-winter. Council contended there was insufficient information to determine the amount of solar access. This is addressed in my response to Contention 1.
Private open space (cl 29(2)(d) of the SEPP ARH) - the private open space for the use of the lodgers (at 27m2) exceeds the minimum of 20m2 and has a minimum dimension that exceeds the required 3m. The manager's room has adjacent to it a private open space area of at least 8m2. Satisfaction of these standards was not in contention.
Parking provision (cl 29(2)(e) of the SEPP ARH) - the development, as amended, provides 21 parking spaces consistent with the minimum number calculated at the applicable rate of 0.5 spaces per boarding room and one space for the manager. This was not in contention.
Accommodation size (cl 29(2)(f) of the SEPP ARH) - the proposed boarding rooms have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least 12m2 for the single occupancy rooms and 16m2 for the double occupancy rooms. This was not in contention.
Clause 30A of the SEPP ARH requires a consideration of whether the design of the development is compatible with the character of the local area. The Council contended that the development should be refused on the basis that it was not consistent with the existing character of the local area nor the desired future character. This is considered in my response to Contention 2.
Clause 30(1) of the SEPP ARH provides that a consent authority must not grant consent to a boarding house development unless it is satisfied of each of the seven standards identified. Council contended that the proposal did not satisfy the standard in cl 30(1)(b) that no boarding room shall exceed a gross floor area (GFA) (excluding any area used for the purposes of private kitchen or bathroom facilities) of 25m2. None of the other standards for boarding houses in cl 30(1) of the SEPP ARH were in contention. I have considered the standards referred to in cl 30(1) of the SEPP ARH and I am satisfied that the development complies with each of them, including the maximum room size in cl 30(1)(b). This is considered in my response to Contention 9.

[10]

Canterbury Local Environmental Plan 2012

The Site is located within the Zone R4 - High Density Residential (R4 Zone) of the CLEP pursuant to the Land Use Table at the end of Part 2 of the RLEP and as shown on the Land Zoning Map. The proposed "boarding house" use is permissible with consent in the R4 Zone. The consent authority must have regard to the objectives for development in the R4 Zone set out in the Land Use Table, pursuant to cl 2.3(2).
The Council and the town planning experts did not contend that the proposal was contrary to the aims of the CLEP at cl 1.2, nor was it contrary to the objectives of the R4 Zone. I have considered the development in the context of the Aims of the CLEP and the objectives of the R4 zone and for the reasons set out in this judgment I find the proposal to be satisfactory in that regard.
Clause 4.1C Minimum lot sizes for boarding houses. Clause 4.1C(2) of the CLEP provides, for boarding houses in the R4 Zone, that consent must not be granted unless the site has a minimum area of 1,000m2 and a minimum width at the front boundary of 20m. The Site complies with these standards.
Clause 4.3 Height of Buildings. The development, with a building height of less than 11.5m complies with the 11.5m maximum height of buildings development standard in cl 4.3(2) of the CLEP and the Height of Buildings Map. This is addressed in my response to Contention 1.
Clause 4.4 Floor Space Ratio. The maximum permissible FSR under cl 4.4 of the CLEP is 0.9:1. Under the provisions of cl 29(1)(c) of the SEPP ARH, however, this is increased by 0.5:1 to 1.4:1. The development is therefore compliant with the relevant FSR limit. This was not in contention.
Clause 6.2 Earthworks. Clause 6.2(3) of the CLEP contains a list of matters arising from any earthworks, including earthworks ancillary to development permitted with consent, that are to be considered by the consent authority in deciding whether to grant consent. In this case the ancillary earthworks primarily relate to the basement excavation works. They have been considered in the SEE (Ex L, Tab e) and Stormwater Plans prepared by Alpha Engineering & Development Issue D dated 8 October 2018 (Stormwater Plans) (part of the Class 1 Application, at Ex L, Tab c). Earthworks related matters were not in contention.
Clause 6.4 Stormwater Management. Clause 6.4(3) of the CLEP sets out the stormwater management matters that the consent authority must be satisfied with before consent can be granted. Those matters are addressed in the SEE and the Stormwater Plans, and in the Draft Conditions. In the original SOFC the On-Site Detention (OSD) system was in contention, but was no longer pressed in the Amended SOFC.
Clause 6.6 Essential Services. Clause 6.6 of the CLEP provides that consent cannot be granted unless the consent authority is satisfied that the essential services are available or can be made available when required. The Council contended there were insufficient details of the potential need for an Ausgrid electrical sub-station, and if one was needed it would have adverse impacts on landscaping of the front setback and the streetscape. This is addressed in my response to Contention 1. The provision of other essential services was not in contention.

[11]

Canterbury Development Control Plan 2012

The Canterbury Development Control Plan 2012 Amendment No 5 (the DCP) is a relevant matter for consideration under s 4.15(1)(a)(iii) of the EPA Act. Part C, Chapter C7 of the DCP (Chapter 7) relates specifically to boarding houses and contains the key provisions that are relevant to the DA. Chapter 7 in turn 'calls up' some controls that apply to Residential Flat Buildings, as contained in Chapter 4 of the DCP. Part A - Introduction and Part B - General Controls are also relevant. A copy of Part A, Part B and Chapters 4 and 7 of Part C were tendered as part of the Council Bundle (Ex 5) and have been considered.
The particulars in the Amended SOFC Council made specific reference to a number of the DCP controls, as follows: 1. That there was insufficient information to assess the impact of overshadowing to 33 Shadforth Street, with reference to C4.3.4.1 and C7.6.1 of the DCP. This is addressed in my response to Contention 1. 2. That there was insufficient information to assess the amount of solar access to the boarding rooms, with reference to C7.6.1 of the DCP. This was not pressed by Council in the hearing as the town planners agreed sufficient information was provided and the development was satisfactory in this regard. 3. That details of the potential need for an Ausgrid electrical sub-station had not been provided, with reference to C4.3.5.2 and C7.7.2 of the DCP. This is addressed in my response to Contention 1. 4. That the design of the development was incompatible with the existing and desired future character of the local area, with particular reference to the DCP's front and rear setback controls, deep soil controls and maximum building depth controls (Objectives of the DCP, C4.3.2 and C7.3.2). This is addressed in my response to Contentions 2 and 6. 5. That the excavation of the site will result in some habitable rooms (some boarding rooms and the communal room) being located below the natural ground level, which is inconsistent with the C4.3.2, control C9. This is addressed in my response to Contention 4. 6. That the development fails to provide the requisite number of accessible or adaptable rooms as required by C4.3.3.3 of the DCP. This is addressed in my response to Contention 7. 7. That the landscaping details are inadequate to ensure compliance with Part B of the DCP, and in particular the need to provide canopy trees as required under B2.3.3. This is addressed in my response to Contention 8.

[13]

Contention 1 - Insufficient Information, resolved matters

Contention 1 of the Amended SOFC identified what Council claimed were deficiencies in the information provided. The Council maintained the information was insufficient to determine the application. The following matters were resolved by the provision of additional information or were not pressed by the Council. I am satisfied that the information before the Court is sufficient to assess the application with respect to each of these matters. 1. Height - Particulars (a) and (b). The town planners agree that Drawings A202 and A303 of the Revision G Architectural Plans (Ex A) include sections which allow for the assessment of building height and that the proposal complies with the building height standard in the CLEP. The set of mechanical ventilation plans tendered as Exhibit J show the location of the mechanical ducts to the roof, and Drawing A105 demonstrates that the two exhausts at roof level do not extend above the ridge height of the building and therefore do not breach the height limit. 2. Solar access - Particulars (e) and (f). The town planners agree (at p 5 of the Joint Planning Report) that Architectural Drawing A301 showing the "Sun Eye Views" of the proposal indicates that: 1. the communal living room located in the rear northern corner of the building on the Ground Floor will receive solar access between 9:00am and 1:00pm in midwinter and therefore satisfies the minimum requirement of cl 29(2) of the SEPP ARH for three hours, and 2. that "the majority of the boarding rooms will receive solar access for multiple hours." 1. BASIX Certificate - Particular (g). This has been resolved by the provision of the BASIX Certificate (Ex C). 2. Air conditioners - Particular (h). Based on the evidence of Mr Minto in the Joint Planning Report (p 5) that the boarding rooms will be provided with ceiling fans, as referenced in the Plan of Management (Ex D), and the DA does not seek consent for air conditioners, the town planners agreed that a condition should be imposed requiring Council's consent to any future installation of air conditioners. 3. Supplementary reports - Particular (j). The evidence of the BCA experts in the Joint BCA Report provides sufficient information for assessing compliance of the development with the BCA. An updated BASIX Certificate (Ex C) and updated Acoustic Report (Ex H) have been provided. 4. Plan of Management - Particular (k). An updated Plan of Management, that the town planners agreed, at p 5 of the Joint Planning Report, was required has subsequently been provided. The updated Plan of Management dated 26 May 2021 (Ex D) picks up the majority of the points raised by Ms Michael at par 16, pp 8 - 9 of the Joint Planning Report.

[14]

Contention 1 - Insufficient Information, unresolved matters

The town planners failed to reach an agreement in the Joint Planning Report as to whether there was sufficient information to assess the overshadowing impacts to the adjoining property to the south at 33 Shadforth Street and on whether an Ausgrid substation was required.
With respect to the overshadowing impacts the evidence is found in the shadow diagrams at plan A001 in Exhibit A which shows in plan the extent of shadows cast in midwinter at 9:00am, 12:00pm and 3:00pm. Ms Michael maintained the shadow information was insufficient to determine the full extent of loss of solar access as the use of those rooms with north facing windows in the single storey dwelling at 33 Shadforth had not been identified, nor the full extent of the area of that property. Despite these purported shortcomings Ms Michael notes that the shadow impacts are exacerbated by "the excessive building depth", contrary to the objective O1 of the building depth control (at Part C4.3.2.4 of the DCP), which includes "to preserve sunlight,.. and general amenity for existing dwellings."
Mr Minto's evidence was that based on the information provided in the shadow diagrams it can reasonably be concluded that the north facing windows in the adjoining dwelling would be overshadowed and that elevational drawings were not necessary in this instance. Based on the shadow diagrams, and noting that the diagram for the 3:00pm shadows does show the full extent of the adjoining allotment, I accept Mr Minto's evidence on that point, and find there is sufficient information to assess the midwinter shadow impacts.
Mr Minto also points out that the extent of overshadowing of the dwelling and the private open space at the rear of 33 Shadforth Street is a function of the (east-west) orientation of the allotments and is consistent with what might be expected for an area in transition where the current controls permit development up to 11.5m in height. In his view the extent of overshadowing "… is an unfortunate consequence of the orderly and economic development of land in accordance with the current zoning and height controls applicable to the land."
I agree with Mr Minto that the shadows cast are impacted by the lot orientation and building height. I also agree with Mr Minto that in the adjoining single storey dwelling any living room windows oriented to the north would be overshadowed by a development compliant with the envelope permitted by the DCP controls.
The height alone, however, does not determine the full extent of the shadows. They are impacted by the full building envelope, as generated by the combined limits of the height, setbacks and building depth controls. Although the proposal complies with the height limit Ms Michael points out the building depth is greater than that specified in the DCP, and therefore exacerbates the overshadowing impacts on the adjoining property.
The DCP provides controls for solar access to existing development that adjoins boarding houses, at C7.6.1, Controls C6 to C9. Relevantly Control C6 provides that proposed boarding house development must retain (to a neighbouring dwelling) a minimum of 3 hours of sunlight between 8:00am and 4:00pm on 21 June (midwinter) for existing primary living areas and "to 50% of the principal private open space".
At 33 Shadforth Street the dwelling's principal private open space is the rear yard. There is no evidence on where the "principal living areas" are located within the dwelling, but if they are at the rear, solar access to windows in the eastern façade are already impacted by the awning structure identified in the site survey (Ex N) and aerial photographs. Based on the shadow diagrams depicted in drawing A001 of Exhibit A it is apparent that at 9:00am in midwinter the rear yard of 33 Shadforth Street (exclusive of the awning) will not be overshadowed by the proposed development and by 12 noon approximately 50% (at the eastern end) of the yard will not be overshadowed. This complies with the DCP Control C6 at C7.6.1. This compliant amount of solar access is achieved notwithstanding the breach of the building depth control.
On balance and taking into account the CLEP height limit, the other envelope controls in the DCP, and the retention of 3 hours of sunlight to 50% of the rear yard in midwinter between 8:00am and 12:00pm, I find the shadow impacts on the adjoining dwelling to be acceptable.
Ms Michael maintained that there was insufficient information provided as to whether an Ausgrid substation was needed to service the development, and that this needed to be confirmed, due to potential impacts on the landscaped treatment of the front setback if a substation was required.
Mr Minto relied on correspondence from Ausgrid dated 13 November 2020 (that was attached to the Joint Planning Report as Annexure 4) headed "OFFER to provide Basic Connection Services - Connections over 100amps" (Ausgrid Connection Offer) that a substation was not required. He also expressed the view that if a substation was required there was scope to accommodate this in the front setback "in a manner whereby the streetscape is not unreasonably impacted on". Ms Michael questioned whether the Ausgrid Connection Offer took into account the increased demand of the proposed development.
The evidence before me as to the need for a substation is found in the Ausgrid Connection Offer and in a subsequent letter from HHH Consulting Pty Ltd dated 26 May 2021 (HHH Letter) tendered as part of Exhibit G. The Ausgrid Connection Offer specifies that the maximum capacity of the connection is 160 amps 3 phase, and the connection point is a private pole on the premises. The HHH letter confirms the required power is 160 amps 3 phase, to be connected off a private pole to be located on the premises and that "no substation is required for the development and an approval has been issued by Ausgrid in line with the offer in the Ausgrid Connection Offer." Based on this evidence I am satisfied that no substation is required for the development.

[15]

Contention 2 - Character and Streetscape

Pursuant to cl 30A of the SEPP ARH the consent authority must take into consideration whether the design of the development is compatible with the character of the local area. The Council contends that the design of the development is incompatible with the existing and desired future character because of its failure to provide complying or appropriate front and rear setbacks, adequate deep soil landscaping in those setbacks and in the side boundary setbacks, and because it does not satisfy the building depth controls in the DCP.
Currently the area within the visual catchment of the Site, as described by Ms Michael at par 18 of the Joint Planning Report, is characterised by single storey dwellings and older style two and three storey residential flat buildings. This is evident from the aerial photograph at drawing A302 of Exhibit A, which is reproduced below.
Mr Minto points out (at par 17 of the Joint Planning Report) that the local area "… is one which is in transition with the area's single storey dwelling houses progressively being replaced with three storey residential flat buildings." Examples of the new forms of development are found on the land immediately adjoining the Site to the north, at 39-41 Shadforth Street (also shown in the aerial photograph) and opposite the Site at 40-41 Shadforth Street which was under construction at the time of the site view, although not evident at the time the aerial photograph was taken.
In terms of the proposal's compatibility with the desired future character of the local area it is useful to consider the current development controls that will guide the likely future development. The building envelope controls help inform the likely future character in terms of built form and the relationship of buildings to the street and to one another. Landscaping controls are also relevant in helping to understand the intended landscape outcomes and landscaping is an important element of the character of an area. Currently the area is not characterised by a predominance of trees or other landscaping, as can be seen from the aerial photograph above, and was evident from the site view. Landscaping is addressed in my response to Contentions 6 and 8.
The likely future development could include a variety of development types encompassing those uses permissible in the R4 Zone. The evidence focused on the controls for boarding houses (by virtue of the development proposed) and for residential flat buildings by virtue of the recent emerging new development (approved and constructed) in the area.
For the R4 Zone the DCP adopts for boarding houses many of the controls for residential flat buildings as a "comparable predominate building type" in the zone (refer C7.3.1. control C2). For example, C7.4.1 relating to building design for boarding houses in the R4 Zone adopts the building envelope controls at C4.2.3 for residential flat buildings.
The suite of Building Envelope Controls for residential flat buildings (and boarding houses) at C4.3.2 comprises five aspects of a building envelope - FSR (which establishes the amount of floor space relative to site area), height, setbacks, building depth and building separation. The proposal's FSR and height are consistent with the controls in the environmental planning instruments, and building separation was not in contention.
The DCP's setbacks for boarding houses (at 7.3.2) and for residential flat buildings (at C4.2.2.3) are the same and relevantly provide for a minimum setback of 6m from the front and rear boundaries, 4m from the side boundaries, and a minimum width of deep soil along the front and rear boundaries of 5m and side boundaries of 2m. At C4.2.2.3 Control C10 permits minor building elements to project up to 1m into the minimum side setback area for certain specified purposes, including pergolas, patios, stair or ramp access to the ground floor, rainwater tanks and for terraces above parking that are no higher than 1m above the ground level.

[16]

Setbacks

Mr Minto's evidence of the setbacks, at par 17 of the Joint Planning Report, is as follows: "Front setback - Minimum of 5.5m with an average setback of 6.0m. A deep soil area having a minimum width of 5.5m is provided. Rear setback - 6m measured to the rear wall … and 4.5m to 5.0m to ground floor pergola structure. A deep soil area having a minimum width of 4.4m is provided. Side setbacks - A minimum side boundary setback of 4.0m is provided to each side boundary. A deep soil area having a variable width (0m to 1.5m) is provided to the northern side boundary and 1240mm to 2.0m to the southern side boundary." In Mr Minto's opinion "the proposed setbacks are compatible with the setbacks of surrounding development and the setbacks required by Council's DCP."
Ms Michael's evidence is that drawing A302 (part of Ex A) demonstrates the front setbacks of residential flat buildings within the visual catchment "are 6m or greater" and the proposal in part encroaches within this line. In oral evidence Ms Michael acknowledged that the breach occurs as a result of the protruding ground level entry (protruding by up to 1.0m) and that this structure does not affect the implementation of the landscape plan. She also acknowledged 1. the encroachment into the rear 6 metre setback at ground level was "the pergola with glass roof", which reduced the setback at this level to 4.5m, but if this structure was reduced in width from 1.5 to 1.0m "it would make it satisfactory in light of control C10", 2. the 5m setback at the rear was obstructed by retaining walls, and 3. the basement level is setback 5.5m from the front boundary and 5.0m from the rear boundary.
The DCP setback controls establish the minimum distance from boundaries and in this case the proposed building is setback at ground level and above in a manner that is generally consistent with the DCP controls. At the ground level protrusions are minor and within the realm of that contemplated by the DCP for side boundaries at Control C10 and do not materially detract from the character of the area.
The basement setbacks, where less than 2m from the side boundaries, result in a reduced width and area available for deep soil planting in those areas. Compliance with the deep soil provisions of the DCP and the adequacy of the landscaping is addressed in my consideration of Contentions 6 and 8 below. For the reasons set out in that part of this judgment I find that the landscaping proposed as part of the development is satisfactory. The contribution of the proposed landscaping to the existing character, or desired future character, of the area is satisfactory.

[17]

Building depth

The table at C7.3.1 of the DCP adopts for boarding houses in the R4 Zone the controls at C4.3.2 for Floor Space Ratio, Height and Building Depth applying to residential flat buildings. The provisions of C4.3.2.4 Building Depth are reproduced below: "C4.3.2.4 Building Depth Objectives 03 To promote improved levels of residential amenity for new and existing development, to preserve sunlight, privacy and general amenity for existing dwellings. 04 To ensure that development is of a scale that is visually compatible with adjacent buildings, character of the area, and the objectives of the zone. Controls C3 Building depth must not exceed a maximum of 25m. C4 The building depth may be increased to 35m in the R4 Zone provided facades incorporate deep soil courtyards that are: (c) Parallel to front or rear boundaries (or that have an orientation which is generally parallel to those boundaries) provided that the adjacent deep soil setbacks each accommodate at least three major canopy trees; or (emphasis added) (d) Parallel to side boundaries (or have an orientation that is generally parallel to side boundaries) provided that the facades will incorporate deep soil courtyards that each have a minimum area 6m by 6m and will each accommodate at least one major canopy tree."
Both planning experts suggest that the applicable building length control in this case is 35m, notwithstanding some disagreement about the deep soil setbacks and the ability to accommodate major trees. At par 23 of the Joint Planning Report Ms Michael calculates the building depth of the proposal as "…ranging from 38.5m on the ground floor and first floor and 35 metres on Level 2. The predominant building depth of the residential flat buildings along Shadforth Street (located between Edna Street and Lakemba Street Wiley Park) vary from 29m to 35.6m with the only exception being 44 Shadforth Street which has a building dept of approximately 40m."
Ms Michael's opinion (also at par 23 of the Joint Planning Report) is that the proposed building depth is excessive and "… is inconsistent with the objectives of the building depth control in that it will result in a reduced level of amenity and impact the solar access of the adjoining property..." I have already found at par 47 of this judgment that solar access to the adjoining property is acceptable.
Although Ms Michael points out the DCP allows for an increased building depth of 35m "provided it can accommodate at least three major canopy trees within the front or rear setback, or incorporate a deep soil courtyard of a minimum 6m by 6m parallel to the boundaries" her evidence in the Joint Planning Report (par 23) is that: "The proposal does not provide a sufficient deep soil area along the rear setback to accommodate three major trees nor is there sufficient area along the side boundaries for deep soil planting, nor sufficient area for landscaping. Therefore, the proposed building depth in excess of 35 metres is not supported, as it does not meet the objectives of the control and would be inconsistent with the desired future character of the area."
In oral evidence Ms Michael said the building should be brought back to a building length of 35m measured from 6m back from the front boundary, which would make it the same as the new residential flat building adjoining to the north.
Mr Minto's queried the need to reduce the building depth to 35m, particularly as doing so would result in the loss of a number of boarding rooms. In his view, when developing under the SEPP ARH, it is necessary to set aside some of the DCP controls to achieve the additional floor space permitted by the State Policy. He pointed out the building depth already measures 35m on the top floor and the relevant test in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) is one of compatibility. At par 18 of the Joint Planning Report he emphasises "that compatibility is not about sameness but rather the ability for buildings to exist in harmony with their adjoining properties and surroundings."
Having carefully considered the various arguments, the objectives of the building envelope controls, including the building depth controls, and my own observations at the site view I find that the proposed development is not incompatible with the existing character of the local area, nor the likely future character, as might reasonably be expected for new development in the R4 Zone.
The building is similar in scale and length to the residential flat buildings in the area (which vary from 29m to 40m), and in particular to the recent residential flat building located immediately to the north of the site. The proposed building and its envelope "is visually compatible" with the adjacent residential flat building (one of the objectives of the building depth controls), and like that building is not unrepresentative of the likely future character of the area.
I also find that the landscaping, including the proposed tree planting, is acceptable for the reasons set out in my response to Contentions 6 and 8, and that the building is reasonably harmonious in its landscape context, both existing and as anticipated in the future by the DCP.

[18]

Amenity for Future Lodgers (Contention 4)

Contention 4 states: "The design of the proposed boarding house will not provide adequate amenity for future lodgers and inadequate facilities have been provided to the Proposed Development."
The Particulars make a number of claims, each of which were contested, regarding the following matters. 1. With respect to the proposed laundry facilities, whether there is an adequate number of washing machines and driers (for the estimated 75 lodgers) and whether they are accessible to all lodgers. 2. The location of some of the ground level boarding rooms partially below the existing ground level and whether they are therefore 'substandard', and whether the height of the retaining wall that separates the communal open space and the deep soil areas impedes access to the upper landscaped area for maintenance, compromises the deep soil area and impacts on the outlook for lodgers. 3. That rooms 27, 28, 36 and 37 rely on skylights for their main source of natural light and "therefore the amenity to these rooms will result in substandard living". 4. Whether noise from the laundry and common room will impact on the amenity of nearby bedrooms.
Regarding the proposed number of washing machines (x6) and driers (x6) there are two conflicting opinions provided by the town planners; Mr Minto said this number was adequate and Ms Michael said it was insufficient. Ms Michael also said that in the absence of a Plan of Management it cannot be determined how the laundry facilities will operate. The town planners agree, however, at par 38 of the Joint Planning Report that a condition requiring 3 washing machines and 3 dryers be placed at floor level (and three of each above) will allow access to all lodgers.
A Plan of Management was tendered as Exhibit D (POM). It provides (at 12.6) that 3 of the six washing machines and three of the 6 driers will be placed on the floor (the remaining are raised). This is to ensure half of the machines are accessible. It also says the communal laundry is to operate between 7:00am and 10:00pm daily. The architectural plan A102 shows the development is provided with an outdoor drying area adjacent to the laundry.
The DCP is silent on the provision of laundry equipment or facilities. The SEPP ARH provides, at cl 30(1)(d), that consent cannot be granted unless the consent authority is satisfied that "adequate bathroom and kitchen facilities" will be available within the boarding house for the use of each lodger. There is no provision in the SEPP ARH for laundry facilities.
In the absence of any planning controls addressing this particular aspect of boarding house development, nor any definitive evidence on the adequacy of the numbers beyond the planners' conflicting opinions, and bearing in mind that this is not a matter that I need to determine in reaching my decision on whether to approve the development, I am prepared to accept the number of machines proposed by the Applicant. I also accept the town planners agreed position that placement of 3 washing machines and 3 driers on the floor level will provide sufficient access to those machines.
The Long Section in architectural drawing A202 (part of Ex A) shows the existing ground level extrapolated. The maximum excavated depth is dimensioned on that drawing as 825mm for Room 08 at the rear, with the ground line tapering towards the street. It also shows an excavated depth of 700mm for Room 09 and approximately 450mm for Room 10. The excavation extends beyond the building's perimeter on its northern, eastern and southern sides to create a series of private terraces. All the partially excavated ground floor rooms have direct level access to a terrace. The width of these private terraces varies from 1650mm to over 4m before the 800mm high retaining wall separates the edge of the terrace from the planted area.
In the Joint Planning Report (at par 26) Mr Minto notes the maximum excavation of the affected boarding rooms and the communal living room as 840mm which, in his opinion, is not excessive "… particularly noting that a terrace area is to be provided to the perimeter of the building" and that the amenity of the rooms will not be compromised as a result of the levels.
Architectural drawing A102 shows that at RL 33.25 the level of the communal living room and open space is 800mm lower than the top of the retaining wall (at RL 34.05). The communal open space measures at least 3m in width and is located in the northern corner of the building where solar access is maximised. With respect to the communal open space the town planners' positions, at par 24 of the Joint Planning Report, are: 1. In Mr Minto's opinion the level difference between the rear communal open space terrace and the deep soil areas would not present any significant issues with maintaining those areas and would not compromise the amenity or appearance of those areas, and 2. Ms Michael suggests the plans should indicate how the upper level will be accessed to allow for maintenance.
I agree with Mr Minto and find that the amenity of the ground floor boarding rooms and the communal living room will not be unduly affected by the level changes arising from this extent of excavation. Any potential adverse amenity impacts of the partially below ground boarding rooms is adequately mitigated by the fact that these rooms all have direct accessibility to a sufficiently wide and usable area of private open space, with outlook to landscaping at the top of a retaining wall which at 800mm in height is less than a standard balustrade. The communal living room also enjoys a good level of solar access by virtue of its location on the northern corner of the building at the rear of the property.
The amenity of the communal open space, which is accessed directly from the communal living room, is also acceptable as it will enjoy a good level of solar access and landscaped outlook. There is no evidence to suggest that accessing the upper level for maintaining the landscaped area is insurmountable: it might, for example, be accessed by a ladder.
The Council's contention that Rooms 27, 28, 36 and 37 rely on skylights for their main source of natural light and "therefore the amenity to these rooms will result in substandard living" is not supported by the design depicted in the architectural drawings (Ex A). These rooms have two levels, with bathroom, kitchen and living spaces on the lower level and a sleeping loft on the upper mezzanine level. The living spaces all have full height sliding glass doors to private balconies, as shown on the Second Floor Plan (Drawing A104). The Mezzanine Plan (Drawing A105) shows the sleeping lofts with skylights measuring approximately 1m x 1.5m, as well as a large void open to the living room below (separated by a balustrade) and a large window on the outside wall of the void within the gable end of the roof. This creates a double height glazed exterior wall to the void. The triangular shaped windows within the gable are shown on the East and West Elevations (Drawing A201).
Although the Council's contention related to daylight at par 31 of the Joint Planning Report Ms Michael refers to solar access, or sunlight, and also to ventilation as follows: "HM (Ms Michael) notes that the bedrooms of rooms 27, 28, 36 and 37 rely on a skylight for its (sic) main source of solar access and ventilation. The reliance on the large void area and what appears to be a triangular glazed area above the sliding doors servicing the lower level is not adequate."
Mr Minto's evidence (at par 27 of the Joint Planning Report) on the other hand is that these boarding rooms, in his opinion, will be provided with a high level of amenity because: "1. The bedrooms are located adjacent to a large void which provides connectivity to the lower level living space and its associated windows 2. The bedrooms are provided with large operable skylights which will provide additional light and ventilation to the rooms."
I agree with the evidence of Mr Minto, and find the design of these rooms will result in a good level of internal amenity. There is more than adequate daylight to the bedrooms and, although desirable, there is no requirement for the boarding house rooms to receive direct sunlight. The living areas of these four rooms will, nevertheless, receive some solar access, especially Rooms 36 and 37, and the skylights allow sunlight to the upper level. The inclusion of an operable skylight also allows cross ventilation of both levels, which also improves amenity. The separated sleeping and living areas, the voids, glazed double height wall and the operable skylights combine to create a good level of internal amenity for these boarding rooms.
Noise transmission between the laundry and communal living room and adjoining bedrooms is addressed in Mr Minto's evidence, and Section 9.0 of the Acoustic Report (Ex H) sets out the sound transmission and insulation rating for construction materials under the BCA for Class 3 Boarding House buildings. Mr Minto's evidence is that Rooms 6, 7 and 8 will have a reasonable level of acoustic amenity if the building is constructed in accordance with the relevant sound transmission requirements of the BCA and the laundry and communal living area operate in accordance with the hours specified in the Plan of Management. This is not contested by Ms Michael and both protective measures are addressed in the Draft Conditions (Condition 15).

[19]

Landscape Treatment (Contention 6) and Landscaping (Contention 8)

In Contention 6 Council claims the proposed development will result in a landscape treatment of the front setback that is not compatible with the existing and desired landscape treatment of Shadforth Street, and in Contention 8 that the landscape details are inadequate to ensure compliance with Part B2 of the DCP.
The Particulars to Contention 6 refer to Clause 29(2)(b) of the SEPP ARH which provides: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.
The Particulars for Contention 6 also refer to Council's DCP provisions at C4.3.2.3 for setbacks and says the desired streetscape outcomes for the area are set out in the objectives for that section. Section C4.3.2.3 relates to the front, rear and side setbacks. Objective O1 relevantly relates to the streetscape. That objective is "to establish the desired spatial proportions of the street and define the street edge." Objective O3 is also relevant, being "to contribute to the natural landscape by retaining adequate space for new trees and conserving existing visually prominent trees." The relevant control in the DCP's C4.3.2.3 is for a minimum front boundary setback of 6 metres.
Mr Minto's evidence (par 33 of the Joint Planning Report) refers to the revised architectural and landscape plans accompanying the report, that became Exhibits A and B respectively. Based on those plans his opinion is that "the proposal is capable of providing for a landscape outcome which will significantly enhance the landscape character of the surrounding locality."
Ms Michael's evidence (at pars 35 and 37 of the Joint Planning Report) is that the proposed landscape treatment is inconsistent with some of the setback objectives, that there is insufficient area provided for the growth of the proposed trees and "therefore the landscape treatment is not considered to significantly enhance the landscape character of the surrounding locality."
The character of the local area, including the streetscape character, is addressed above in my response to Contention 1. Currently the area and the streetscape in which the development is located is not characterised by a predominance of trees or other significant landscaping. This can be seen from the aerial photograph and was evident from the site view. For the site itself the existing landscaping in the front setback is of a very poor quality and does not make a positive contribution to the streetscape. As seen in Photograph 1 in the SEE, and identified on the survey (Ex N), the site's front setback comprises the two partially concreted driveways and grassed areas, with little other vegetation and no trees. There is currently one street tree in front of the site.
For the reasons set out in my response to Contention 1 the front setback dimension (of generally 5.5m) is acceptable. The driveway affected area within the streetscape setback is minimised, as is the impact of the OSD tanks by locating them under the driveway and pedestrian entry path. The remainder of the front setback is fully planted with shrubs, ground covers and four trees, as shown on the Landscape Plan (Ex B), which also shows two trees (one a replacement tree) in the road reserve directly in front of the site. I find, therefore, that the proposed landscape treatment makes a favourable contribution and significant improvement to the streetscape in which the building is located. Accordingly, pursuant to the provisions of cl 29(2)(b) of the SEPP ARH, the development cannot be refused on these grounds.
In Contention 8 the Council maintains that the landscaping details are inadequate to ensure compliance with Part B2 Landscaping of the DCP. In the Particulars Council raised issues associated with the design of the Communal Open Space and the adequacy of the areas for tree planting along the rear of the site to accommodate canopy trees, with specific reference to Controls C6 and C7 of Part B2.3.3 of the DCP.
Part B2.3.3 of the DCP addresses "Trees and Canopy Coverage" and sets out 14 "General" controls, 5 "Retention of Existing Trees" controls, 4 "Street Trees" controls and 1 "Tree Protections Measures" control. The "General" Controls C6 and C7 raised in the SOFC state: "C6 Front and rear setbacks are to have at least one (1) major canopy tree for every 12m of every front and rear boundary width. C7 Side boundaries are to have one (1) major tree for the first 45m plus one (1) additional tree for every additional 20m."
In the rear setback's deep soil area the architectural and landscape plans show a retaining wall splitting the rear open space into two levels, of varying widths. The upper level is 2.8m wide outside the Communal living Room (to provide a wider area of Communal Open Space at the lower level) and 4.4m wide outside Rooms 07 and 08.
For the northern and southern side setbacks the architectural and landscape plans show raised planters to accommodate the soft landscaping. Along the northern boundary the planter varies in width from 1.5m to 2.15m. The wider portion includes a 1.0m wide strip in deep soil, with no base to drain freely. The remainder of the planter sits on top of the roof slab of the basement. The slab has been stepped down by 500mm to increase the planter depth, as shown on the architectural plan DA101.
Within the southern setback there is a 2m wide by 22m long raised deep soil area along the boundary. This landscaped area increases in width to 3m outside Room 09 with the incorporation of a contiguous raised planter box built on top of the basement roof slab. A separate raised planter box, fully built on the basement roof slab, is proposed adjacent to Room 10.
Details of the planters to be constructed on the slab are shown in the landscape drawing 1918.GD.02 (part of Ex B), which notes the planting mix in the planter has a depth of 1000mm for trees and 600mm for understorey planting.
The Landscape Plan 1981.GD.01 (part of Ex B) shows the proposed planting of various shrubs, ground covers and numerous trees. The trees proposed are as follows: 1. in the front setback - 1x Native Frangipani (mature height 10-12m, mature spread 3-4m), 1x Crepe Myrtle (mature height 6-8m, mature spread 3.5-6m) and 2x Teddy Bear Magnolias (mature height 4-6m, mature spread 2-3.5m), all in deep soil. 2. in the rear setback - 4 x Weeping Lilly Pilly trees (mature height 8 - 12m, mature spread 3.5 - 6m), in deep soil. 3. in the northern side setback - 6 x Blueberry Ash trees (mature height 8m, mature spread of 3.5 - 6m) in the wider partly deep soil planter and 18 x Pinnacle Lilly Pilly trees (mature height 6-10m, mature spread 1.4 -1.6m), and 4. in the southern side setback - 2 x Capital Flowering Pears (mature height 8-12m, mature spread 2- 3.5m) and 12 x Pinnacle Lilly Pilly trees in the deep soil area and 1 x Blueberry Ash tree in a raised planter.
Pursuant to Control C5 in Part B2.3.5 of the DCP trees with a canopy diameter of up to 4m are deemed to be "small" trees, those between 4m and 8m are "medium" trees, and those over 8m and up to 16m "such as figs" are "large trees". Based on the mature spread of the trees (as shown in the Landscape Plan drawing 1918.GD.01) the Weeping Lilly Pilly and Blueberry Ash trees are classified as "medium" trees and the others as "small" trees. There are no "large" trees proposed in the Landscape Plan, and this was not disputed between the parties.
In oral evidence the town planners agreed that architectural plan A101 shows the two trees in the main landscaped area in the front setbacks are planted within a 5.5m wide area of deep soil, and that plan A102 shows the four trees in the rear setback are also planted in deep soil. Ms Michael agreed that rear setback is consistent with the DCP requirements, although the deep soil area is obstructed by the retaining wall.
At par 44 of the Joint Planning Report Ms Michael refers to the DCP Control C5 in Part B2.3.5 for the minimum standards for soil volume, soil depth and approximate area for large, medium and small trees. In her opinion the development does not meet these minimum standards and therefore the development does not provide an adequate area for the growth of the proposed trees.
In oral evidence Ms Michael said that as she was not a landscape architect she didn't know if the planters or spaces were adequate for the growth of the proposed trees, but that the DCP's controls (in Control C5 in Part B2.3.5) were similar to the controls for planting on structures in the Apartment Design Guide applying to development to which State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applied.
Mr Minto's evidence, at par 41 of the Joint Planning Report, is that in his opinion: 1. the side and rear setbacks, in the revised architectural and landscape plans (Exhibits A and B), "… are capable of providing a landscape outcome consistent with the requirements of Council", and 2. in relation to the rear setback, that the design and proposed layout provides an appropriate balance between the need to provide usable communal space as well as the need to provide landscape planting including screen planting and tree planting.
In submissions Mr McKee argued the proposed development achieved the DCP's Part B2.1 landscaping Objective O1 "to ensure attractive settings for development, streetscapes and public domain" and Objective O2 "to encourage ... planting of large and medium size trees, and the healthy growth of trees in urban areas", even though in this case no large trees are proposed. Mr McKee maintained there was nothing preventing the medium trees in the front and rear setbacks from thriving, that the planting will put the building in a landscaped setting, and the planters had been designed, including the stepping down of the slab to provide appropriate soil depth and volumes for the planting proposed.
Section B2.3.5 of the DCP is a set of controls to guide the design of hard landscape structures, including planters, and nominates soil volumes, depths or areas to support the 'soft' landscaping, or planting. Control C5 of B2.3.5, for example, sets out recommended minimum standards for soil volumes, depths and areas for trees. The preceding Control C4, however, uses a performance-based approach to "Design planters to support the appropriate soil depth and plant selection" and lists a number of ways to achieve this, including providing regular shaped planting areas, appropriate soil conditions, irrigation methods and drainage, and increasing soil depths in accordance with a number of variables.
The DCP specifies at B2.2 Control C1 that a landscape plan is required for an application for all types of development, except for dwelling houses, and at Control C3 that the landscape plan is to be prepared by a qualified landscape architect or consultant. The Landscape Plans (Ex B) satisfy these provisions and this was not in contention.
In the absence of expert landscaping evidence, and the acknowledgment by Ms Michael that as she was not a landscape architect she didn't know if the planters or spaces were adequate for the growth of the proposed trees, I rely on the Landscape Plans (Ex B) prepared by Greenland Design Landscape Architects, and their expertise in selecting the particular trees and other plantings for, amongst other reasons, their ability to grow in the conditions. I have no compelling evidence to reject the Landscape Plans in this case. Based on those plans I accept that the planting shown is capable of being achieved and that it will satisfy the relevant landscaping objectives in part B2 of the DCP. I also note that conditions of consent (Conditions 7 and 110) are included in the Draft Conditions requiring compliance with the Landscape Plan.

[20]

Accessible Rooms (Contention 7)

The Council contended that the proposed development "… will result in inadequate rooms for people with a disability and accessibility within and around the boarding house as per AS1428.1". In the Particulars Council maintains that the proposed development would require 4 accessible or adaptable rooms based on section C4.3.3.3 of the DCP. The proposed development provides 3 accessible or adaptable rooms, shown on the architectural plans (Ex A) as Rooms 02, 15 and 30.
Section C4.3 of the DCP applies to residential development to which SEPP 65 does not apply. The Controls in C4.3.3.3 are headed "Dwelling Layout and Mix" and includes Control C7 that says "10% of dwellings in any new multiple dwelling development must be accessible or adaptable to suit current or future residents with needs."
In the Joint Planning Report Mr Minto defers to the evidence in the Disability Access Report prepared by Lindsay Perry Access and dated 3 May 2021 (Disability Access Report) (Ex E) and Ms Michael refers to Council's DCP Control C7 for 10% of the rooms to be accessible or adaptable. Her evidence is that because the proposed development, with 3 accessible or adaptable rooms, is one room short it would not meet the objective O2 of this control, which is "To ensure a variety of dwelling types are provided, capable of accommodating diverse housing needs."
The Disability Access Report (at p 5) states: 1. "Section C7 of the DCP relates specifically to boarding houses. It does not have any specific accessibility requirements", 2. "Section C4.3.3.3 of the DCP appears to relate to Residential Flat Buildings, not Boarding Houses" (emphasis added), and 3. the National Construction Code Building Code of Australia (BCA) "… requires the provision of three (3) accessible rooms (based on a total of forty-one (41) rooms)."
The parties agree that Chapter C7 relating to Boarding Houses does not make any reference to accessibility requirements. On the second point, however, Mr Bonanno in submissions, said the Boarding House controls in the DCP "..import part of the C4 controls for residential apartment buildings" and that the Council has designed its DCP for boarding houses "to work in concert with" the SEPP ARH and with the LEP. The third paragraph in the introductory remarks to Chapter C7 of the DCP (at Folio 452 Ex 5) supports this. It says "This Chapter of the DCP should be read in conjunction with Part A - Introduction, Part B - General Controls, if located in a residential zone Part C - Residential Accommodation, … and Part G Glossary" (emphasis added).
Control C7 in C4.3.3.3 of the DCP is not in conflict with any of the provisions of the SEPP ARH, the CLEP or Chapter B7 of the DCP. It is supplementary to those provisions and there is no evidence before me to support the proposition that this DCP control should not be followed or warranting a lesser number of accessible or adaptable rooms. The Disability Access report that Mr Minto defers to assumes that C4.3.3.3 does not apply and has therefore adopted as a default the BCA provision rate. Mr Minto did not dispute Ms Michael or the Council's contention that it does apply. I therefore find in favour of the Council on this aspect of the development and propose including a condition of consent (Condition 3c) requiring the plans be amended to include a total of four accessible or adaptable rooms.

[21]

Room Sizes (Contention 9)

Contention 9 says the DA should be refused as the design will result in boarding rooms with a "gross floor area excluding any area used for the purposes of private kitchen or bathroom facilities" (GFA), of more than 25m2. There are two particulars to Contention 9: Particular (a) quotes cl 30(1)(b) of the SEPP ARH, and Particular (b) says: "The proposed development will result in boarding houses with a gross floor area of more than 25 square metres and therefore does not meet the standards of a boarding house and will result in these rooms being a dwelling and would need to be assessed against the Apartment Design Guide."
This raises a jurisdictional threshold issue affecting the granting of consent, by virtue of the provisions of cl 30(1)(b) of the SEPP ARH which states: 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 - … (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, (Emphasis added)
At par 45 of the Joint Planning Report Mr Minto expressed the opinion that the calculations shown on architectural Drawing No. A106 (no revision given) show no room will have a GFA of more than 25m2 and that the approach adopted by the architects "and reflected on Drawing No. A107 (also no revision given) is consistent with the approach previously adopted by the Court".
At par 46 Ms Michael says "… there is an inconsistency with the exclusion of the area used for the purposes of a private kitchen. Drawing No A106 Issue F indicates that 600mm in front of the private kitchens is excluded from the gross floor area, whereas in rooms 26, 27, 28, 29, 35, 36, 37, and 38 this has not been the case and therefore given the distance in front of the kitchen being greater than 600mm these rooms have resulted in a gross floor area of greater than 25sqm."
The eight rooms in contention, as nominated by Ms Michael, are the boarding rooms designed with spaces over two levels; the bathroom, kitchen and living spaces on the lower level and a sleeping loft on the upper, or mezzanine, level. The eight rooms have four different floor layouts, as shown on Plan A108 (part of Ex A) which reveals: 1. all of these rooms have their kitchens located in a passageway leading from the entry to the lower living space. 2. For Rooms 27, 28, 36 and 37 the GFA is 23m2 and the passageway with (without any deduction for kitchen use) is 1350mm. 3. For Rooms 26, 29, 35 and 39 the GFA is 25m2, and the passageway width is 880mm (without making any deduction for kitchen use in front of the bench).
If a 600mm wide strip of floor space were deducted from the GFA measurements for kitchen purposes, as suggested by Ms Michael, the area of Rooms 27, 28, 36 and 37 would still measure less than 25m2, and the area of Rooms 26, 29, 35 and 39, which have the narrower passageways, would measure less than 26m2.
Drawing number A107 shows the floor plans for the remaining rooms, 17 of which also have kitchens located in the passageway leading to the main living/bed room - seven single rooms (refer layouts 1 and 7) and six double rooms (layouts 3 and 5). Three of the six double rooms are the nominated accessible rooms, being Rooms 02, 15 and 30 (refer layout 3). The Council and Ms Michael did not object to excluding the full width of the passageway/kitchen from the GFA for the rooms shown on Drawing A107.
The other layouts on drawing A107 are for the Manager's Room and 17 double rooms, all of which have their kitchens within the main room and not in the passageway. For these 18 rooms a 600mm wide area in front of the kitchen joinery is excluded from the GFA of the main room.
There is, therefore, a consistency in the rationale to these measurements in that: 1. for all the rooms where the private kitchen is located in the passageway, the full width of the passageway that is in front of the kitchen joinery is excluded from the GFA, and 2. where the kitchen is located within the main room, and not the passageway, a 600mm wide area in front of the kitchen joinery is excluded.
Whilst the rationale for determining the area of the private kitchens is in this case consistent with respect to measuring the kitchens within a passageway, that does not necessarily make it 'correct'. If the rationale used is correct, as Mr Minto maintains, then the GFA for the eight contested rooms does not exceed the maximum GFA permitted by cl 30(1)(b) of the SEPP ARH.
If, on the other hand, the rationale is incorrect, as Ms Michael suggests, the GFA of some rooms would exceed 25m2 and be in breach of cl 30(1)(b) of the SEPP ARH, necessitating a request that standard under the provisions of cl 4.6 of the CLEP.
In submissions Mr Bonanno did not press the size of the rooms and Mr McKee referred the Court to Lonergan v Ashfield Municipal Council [2011] NSWLEC 1378 (Lonergan) from [31] - [32] onwards. The relevant paragraphs of Lonergan are quoted below: "31 The Court must now consider the issue raised by the council that the proposed development requires a State Environment Planning Policy 1 objection to vary the provision of the 25 sq m, in that some of the units were inappropriately calculated in the area that should be included in the living area. There were detailed calculations provided to the proceedings. Mr Bas is of the opinion that the entry shown on the plans as part of the kitchen is incorrect and those units are over the 25 sq m by 2.5 sq m. He considers this area, should be included in the living area space as opposed to the kitchen area. 32 As I stated, the detailed calculations of plans and I hear what the respondent has to say about inconsistency in the colouring and calculations of the typical street fronting upper units floor plan where the entrance kitchen is included. Where it becomes a long galley kitchen that adjoins the lounge room. In that instance, clearly the entrance way cannot be regarded as kitchen. Nonetheless, for those particular units this is not where the exceedence in the 25 sq m occurs. I note that this is an inconsistency in terms of the rationale for the calculations provided. However in terms of the units that do exceed the 25 sq m, in order to physically use the units where the kitchen is directly off the entryway, the width of the kitchen is such that it requires the entryway to be used when one is cooking or preparing food within the kitchen or using the kitchen for any purpose. Therefore, I think that it is fair and reasonable for those units, and these are the units that exceed the 25 sq m, if one has regard to Mr Bas' calculation, I am of the opinion that it is a commonsense interpretation of what is secondary legislation that the entranceway be part of the kitchen in these circumstances. It is a relatively small area and it must be utilised in order to be able to use the kitchen and therefore in my assessment is part of the kitchenette. In this regard, I take a commonsense approach to the interpretation of delegation legislation such as in an environmental planning instrument. It must be interpreted in accordance with general principles of statutory interpretation as advised in Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 and Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR. Where two meanings are possible I accept the legislator's intentions is that no boarding room will have a gross floor of no more than 25 sq m area excluding any (my emphasis) area used for the purposes of private kitchen or bathroom facilities. 33 I am of the opinion that a common sense interpretation where one needs to in fact physically use the entry area for purposes associated with the kitchen should be included in the kitchen area. As such, I have decided that the State Environmental Planning Policy No 1 objection is not required, even though one was submitted for insurance during the proceedings in the event that I considered that it was necessary." (Emphasis added).
In this case there are relevant parallels to the principles adopted in Lonergan. The passageways in question occupy a relatively small area and must be used for the purposes associated with the kitchen, and therefore should be included in the kitchen area. I accept and adopt the "common sense" approach of Commissioner Murrell in Lonergan that where the passageway also contains the kitchen it should be included in the kitchen area. The maximum room sizes, in this case, are therefore complied with.

[25]

Orders

Accordingly, the Court orders that: 1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Canterbury Bankstown Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the development application No. 454/2018 filed with the Court on 6 March 2020 by the addition of the following documents: Drawing No. Drawing Title Revision Dated Prepared by A000 Cover Page H 26 May 2021 Gus Fares Architects P/L A001 Site Information H 26 May 2021 Gus Fares Architects P/L A101 Basement Plan H 26 May 2021 Gus Fares Architects P/L A102 Ground Floor Plan H 26 May 2021 Gus Fares Architects P/L A103 First Floor Plan H 26 May 2021 Gus Fares Architects P/L A104 Second Floor Plan H 26 May 2021 Gus Fares Architects P/L A105 Mezzanine Plan H 26 May 2021 Gus Fares Architects P/L A201 Elevations H 26 May 2021 Gus Fares Architects P/L A202 Sections H 26 May 2021 Gus Fares Architects P/L 1918.GD.01 Landscape Plan F 17 May Greenland Design Pty Ltd 2021 1918.GD.02 Landscape Details & F 17 May Greenland Design Specifications 2021 Pty Ltd A8301-Cover General Notes F 15 April Alpha Engineering and Development 2021 A8301-SW01 Sediment and Erosion Control Plan F 15 April Alpha Engineering and Development 2021 A8301-SW02 Basement Drainage Plan F 15 April Alpha Engineering and Development 2021 A8301-SW03 Ground Floor Drainage Plan F 15 April Alpha Engineering and Development 2021 A8301-SW04 Roof Drainage Plan F 15 April Alpha Engineering and Development 2021 A8301-SW05 F 15 April Alpha Engineering and Development 2021 Document Revision Dated Prepared by Plan of Management G 28 May Gus Fares Architects P/L 2021 Disability Access Report 2 3 May Lindsay Perry Access 2021 Acoustic Report - Reference 183421 - 28 May 2021 Far West Consulting Engineers Traffic Impact Assessment - May 2021 Apex Engineers BASIX Certificate - 21 May Evergreen Energy Consultants Pty Ltd 2021