Boyce v Inner West Council

Relationship to existing approved development on site

1. According to agreed facts (Ex 1 [11]), on 29 May 2017 consent was granted in the Land and Environment Court (Greg Boyce v Inner West Council [2017] NSWLEC 1268) for construction of a six (6) storey boarding house containing 51 rooms for lodgers and 3 on-site manager's accommodation rooms with associated car parking for 12 cars ('approved development').
2. The application before the Court now seeks consent for the construction of an additional level to the approved boarding house. The additional level would result in an additional 7 boarding rooms. No additional parking is proposed.

Adjacent development approvals

1. The neighbouring sites to the north and east at 287-309 Trafalgar Street and 16-20 Fisher Street (as well as 3-7 and 13-17 Regent Street) were subject to a Planning Proposal ('PP') under Division 3.4 of the EPA Act, which was approved on 27 June 2017. The development site was referenced in the evidence as the "Deicorp" site, a name I will rely on for reference purposes in this judgement. The PP over the Deicorp site involved a significant scale staged and master-planned scheme which would in total comprise some "357 apartments, a registered club with ancillary uses and a food and drink premises" (Ex 1 [17]). Significant was Council's support of an amendment to the proposed building next door to the subject site when compared to the PP scheme. This adjacent building is described as "Building A". According to the evidence the amendment involved a change from a building compliant with a prescribed 6-storey street wall height at Fisher Street (but with two higher levels recessed from the main building line) to an 8-storey street wall height, adjacent to the subject site. According to Council, the point of this amendment was to establish a suitable tree protection area to ensure the retention of a significant mature tree near the corner of Fisher Street and Regent Street (as discussed below, the applicant argues a significant floor area increase also occurred with this amendment). Building A would have a maximum height of 25.6m, be 8-storeys in height and contain 54 residential apartments. According to Ex 1, the building would have "a 3m setback from its balconies and 4.8m from its external wall to Fisher Street".

Issues

1. The contentions which remained active at the end of the hearing according to the Respondent's Closing Written Submissions ('RCWS') filed 2 September 2019, can be summarised as follows: 1. Building height and floor space ratio ('FSR') - considering statutory considerations, general merits and amenity, and juxtaposition with local character compatibility consideration under cl 29 of State Environmental Planning Policy (Affordable Rental Housing) 2009 ('SEPP ARH'). 2. Parking - the proposal includes no new parking but would be integrated with the approved development on site (which proposes 12 car parking spaces). I would mention now that this issue (lack of local parking in the face of current urban transition in the local area) was the point of attention in a lay oral submission to the hearing objecting to the proposal. 3. Public interest - in particular the interest in consistent application of planning provisions and protection of the strategic planning regime.

Building height and FSR, and character compatibility considerations

Considering development standards (floor space ratio and building height) and jurisdictional factors

1. The proposal would exceed the height or FSR standards nominated for the subject land in Marrickville Local Environment Plan 2011 ('LEP'). There is a related provision for boarding house development under SEPP ARH. A question of legal interpretation arises here which needs to be considered first.

Agreed facts

1. The proposal would result in an additional 209.8m² of gross floor area and additional height of 2.9m compared to the approved development (Ex C, p1 - Clause 4.6 Written Request dated 28 August 2019). The table below compares the proposed building height and FSR with the standards contained in the LEP and SEPP ARH (it is indicated that the height non-compliance at the street level is between 2.0m and 2.37m). These details are sourced from Council's Amended Statement of Facts and Contentions and the Clause 4.6 written request documents prepared on behalf of the applicant, or Ex 1, Ex C and Ex D, respectively. LEP development standard SEPP ARH Proposal "must not refuse" standard (including approved development) FSR 2.3:1 2.8:1 3.39:1 Height 20m 20m 24.6m

Implications of non-conformance with LEP development standards

1. There is a difference of view from the parties on how the proposal's non-compliance with the LEP height and FSR standards needs to be considered. It is normally the case that where an LEP contravention exists there would be no power to approve a development unless a consent authority was satisfied in regard to prescribed jurisdictional tests under cl 4.6 of the LEP. The Council believes there is a contravention in regard to the LEP's height and FSR standards, and thus the cl 4.6 pathway needs to be followed. The applicant disagrees. An alternative path, put by the applicant, would allow a consent authority, empowered by cl 29 of SEPP ARH, to consent to the development notwithstanding the contravention, and without recourse to cl 4.6 of the LEP. There is no disputing that under cl 8 of SEPP ARH, it (the SEPP) prevails over the LEP in instances of inconsistency. The question is whether there is in fact any inconsistency.
2. Clause 29 of the SEPP is reproduced below: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if: (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (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). (5) In this clause: social housing provider does not include a registered community housing provider unless the registered community housing provider is a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth.

Considering the authorities

1. The proper assessment pathway for consideration of boarding house development which exceeds LEP height and FSR development standards has been given some attention by the Court, including over the recent past, where different approaches were adopted by decision makers. In this matter, the parties made extended submissions on the question of the proper pathway and it is therefore appropriate for me to give consideration to the question here.
2. Council follows the decision in Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 ('Parker Logan'). In this case, Commissioner Gray gave guidance on the interpretation of the term "inconsistency" at [43]: "…In the words of Kirby P in the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324, "there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument." Young JA stated it differently in Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285 at [84], "if there is a situation where there is a "can do" under the SEPP-SL and a "can't do" under the local environmental plan, then the SEPP-SL prevails." And in the same paragraph Commissioner Gray found: "…In considering the meaning of 'inconsistency', and the guidance provided by the authorities on what that means, I do not accept that the terms of cl 29(4) (of the SEPP) and cl 4.6 (of the LEP) are inconsistent, and nor do I accept that the way that they operate creates incompatibility, contrariety or opposition. Therefore, where there is a breach of a development standard, cl 4.6 of the MLEP 2011 applies and a cl 4.6 request is required."
3. According to Mr Staunton for the applicant, and generally evident on the facts, the relatively recent decision in Parker Logan stood out from a number of other judgements which considered this question (notwithstanding general differences in the cited cases from time to time). Importantly, according to Mr Staunton, the parties' submissions in Parker Logan asked the wrong question: in particular, where the point of "inconsistency" was to be found between the SEPP and (Standard Instrument) LEPs. This point is further explained below.
4. While Mr Staunton cited many more, I now need to reference a limited number of the cases cited by Mr Staunton which were also used by Commissioner Gray in coming to her conclusions. Two central cases are Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 ('Panarea'), a decision of former Commissioner Brown, and 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 ('193 Liverpool Road'), a decision of Justice Moore where Panarea was directly considered before Moore J came to his own conclusions. Both of these decisions found it correct to rely on cl 29(4) of SEPP ARH to grant consent notwithstanding a breach of a development standard, and that cl 4.6 was not required to support the variation. Commissioner Gray noted that in Panarea, Commissioner Brown also indicated that if he was incorrect in relying on cl 29(4) of the SEPP ARH, he was nonetheless satisfied that the cl 4.6 written request supported the variation. Commissioner Gray (and certainly Mr Bonanno in the RCWS) noted that this was a common refrain adopted in other later decisions following a similar path to Panerea (ie cl 4.6 path not necessary but nominating satisfaction in regard to a submitted cl 4.6 written request in any event). Commissioner Gray also noted a conclusion of Moore J in 193 Liverpool Road [48] as follows: "I do not consider that a strict cl 4.6-like approach is mandated because there is nothing in the terms of this provision of the SEPP that purports to impose fetters on the exercise of the discretion given by it in the fashion that arises from the very structured testing regime that flows from cl 4.6 itself. The absence of such a regime, in my view, means that it is inappropriate to infer that such a strict regime would be required to be applied."
5. In coming to a different conclusion to that made in both Panarea and 193 Liverpool Road, Commissioner Gray found as follows [38]: "The difficulty I have in considering and applying the decisions of the Court relied upon by the Council is that neither Brown C nor Moore J outline their view of the construction of cl 29(4) in its context and how, in light of that construction, they reached the conclusion that an inconsistency arises with cl 4.6. In undertaking that task of statutory construction, for the following reasons I reach a different view."
6. Commissioner Gray's conclusions in Parker Logan are captured to an extent in [40]-[41]: "[40] As cl 29(1) and (2) operate only one way, prohibiting the refusal of consent if those minimums are met, they are silent on what occurs if the minimums are not met. As such, a question arises as to whether, if the minimums are not meant, this should result in the refusal of the application. Clause 29(4) addresses this question, making it clear that a consent authority may grant consent "whether or not the development complies with the standards set out in subclause (1) or (2)". That is the extent of the operation of cl 29(4). [41] That being the extent of the operation of cl 29(4), the development standards in the MLEP 2011 continue to apply to the development (notwithstanding that it so happens that some of the criteria in cl 29(1) and (2) are taken from the development standards). There is nothing in cl 29(4) that operates to create an inconsistency with the development standards in the MLEP 2011."
7. Mr Staunton then took me to a more recent decision of Commissioner Smithson in Maham Group Pty Limited v Blacktown City Council [2019] NSWLEC 1168 ('Maham'), where there was a different finding to that in Parker Logan. Mr Staunton favoured that case and noted the point of focus in regard to inconsistency differed between Maham and Parker Logan. Quoting from Maham [55]-[60]: "[55] Mr Pickles submitted that is (sic) was erroneous to look for inconsistency between cl 4.6 and cl 29(4) (at [41]) arguing that this is the wrong comparison. The inconsistency is not between cl 4.6 and cl 29(4). Instead cl 4.6, in terms, applies to any planning instrument, so there is no reason why cl 4.6 cannot be applied to an appropriate standard in a SEPP. Rather, the inconsistency in that case, as in this case, lies between the height standard in cl 4.3 and the provision in cl 29(4). This was the proper comparison Commissioner Gray should have made. [56] Clause 4.3(2) provides that: "The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". In contrast, cl 29(4) of the ARH SEPP states that "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)". The standards in subcl (2)(a) includes the height of any building permitted under another environmental planning instrument. [57] Mr Pickles submitted that cl 29(4) expressly allows approval to be granted despite the non-compliance whereas cl 4.3(2) prohibits the grant of consent to a building that exceeds the height. This is a direct inconsistency. The effect of cl 8 of the SEPP is that the SEPP prevails over the LEP provision to the extent of the inconsistency. This means that cl 4.3 is set aside to the extent to which it would preclude consent being granted to a building that does not comply with the maximum height limit. [58] Clause 4.6(2) allows consent to be granted for development that contravenes a development standard subject to the clause. However, the fact that cl 4.3 is set aside by cl 29(4) (because it is inconsistent with it) means that there is no contravention to be overcome by an objection under cl 4.6. [59] Mr Pickles submitted that there are other reasons to prefer the decision of Moore J over that of Gray C. Although the decision of a Judge is not binding on a Commissioner, except on a question of law in the same proceedings, the principles of comity would usually mean that a judicial decision which has been adopted by other Commissioners should be preferred over one that has not been so adopted, unless it is clearly wrong. As outlined, Moore J's decision is not obviously wrong, indeed, on the analysis outlined, it is correct. There is only one other decision that has adopted Gray C's approach (See Parker Logan at [46]) whereas a long line of cases can be found to support the decision in 193 Liverpool Road. [60] It therefore followed that a cl 4.6 objection is not required in this case."
8. Commissioner Smithson agreed with the applicant's submissions (Maham [68]), linking her finding to the applicant's arguments in particular at Maham [57], reproduced above) and the principles of judicial comity, specifically aligning to the decision of Moore J in 193 Liverpool Road.
9. In coming to my own conclusion I need to consider the concerns from Commissioner Gray in regard to the question of "the construction of cl 29(4) in its context …" (Parker Logan [38]). It was this question which drew the Commissioner's attention in the first place. Respectfully, I am not convinced the arguments of the applicant in Maham as outlined above, and to the extent they were adopted by Mr Staunton in the Applicant's Closing Reply Submission filed on 12 September 2019 ('ACRS'), are adequate in regard to this question of construction. To be more explicit: first, I am not convinced that Commissioner Gray limited her finding, in Parker Logan, on the question of inconsistency, to the relationship between cl 29(4) of the SEPP and cl 4.6 of the LEP (as suggested in Maham [55] and ACRS [7]). The Commissioner, found explicitly at [41] of Parker Logan: "(there) is nothing in cl 29(4) that operates to create an inconsistency with the development standards in the MLEP 2011"; second, and respectfully again, I do not find that the arguments of the applicant as put at Maham [57]-[59] (also referenced as key in ACRS [6]) do much more than restate the conundrum which Commissioner Gray had identified. That is they seem to rely on the statement that there is a "direct inconsistency" between cl 29(4) of the SEPP and cl 4.3(2) of the LEP (in regard to height), without adding to the explanation of the question of construction raised by Commissioner Gray.
10. Turning to the further submissions of the parties and my own conclusions, I start with the issue of comity, recognised as an important consideration by both Commissioners Smithson and Gray. I highlight two points of commentary of Moore J in 193 Liverpool Road which, although perhaps not explicating the "construction" question raised by Commissioner Gray , would indicate that a fitting analysis has been undertaken (if not reported, as of course it need not be). The first is Moore J's reference to a "careful examination" of the decision in Panerea (at [46]), the second is at [48] and is already quoted above. While this might be seen as sufficient, given Commissioner Gray's direct queries in regard to construction, I will draw my own respectful conclusions on that point now. I will consider the height standard first, as it is the more straightforward.

Consideration - Height

1. Agreeing with Commissioner Gray, I see cl 29(2)(a) of the SEPP imposing a particular non-discretionary direction upon a consent authority when assessing an application for a boarding house: that it "must not refuse" the boarding house application on the grounds of "building height" - in defined conditions. In this case, the defined conditions are instances where the proposed building height is not more than the maximum height permitted under clause 4.3 of the LEP. Clause 29(2)(a)'s non-discretionary direction to the consent authority is concerned only with circumstances where the proposed building height is not more than the LEP allows.
2. Clause 29(4) of the SEPP then provides: "(a) consent authority may consent to development to which this Division applies whether or not the development complies with the standards" established, relevant to this matter at cl 29(2)(a).
3. Different to cl 29(2)(a), cl 29(4) is concerned with activating a discretionary function relating to the power of a consent authority. The discretionary power applies to nominated circumstances. The particular circumstance, relevant to the case before me, is where a boarding house development does not comply with the standard in cl 29(2)(a). Prima facie, cl 29(4) prescribes that in such circumstance a consent authority has the power to consent to the development. It seems reasonable to ask, and as posited by Mr Staunton [ACRS [7], [40]) what work is there to do for cl 29(4) if it is to have, other than, what I have suggested as its prima facie function. Without cl 29(4), there would already be power to consent to a development (non-compliant under the LEP's height control) using the permissive powers of cl 4.6 of the LEP. The direction under cl 29(2)(a) has nothing to say about height non-compliant development and therefore without cl 29(4) of the SEPP, and here respectfully disagreeing with Commissioner Gray (see Parker Logan [40]), cl 4.6 of the LEP would be naturally available in regard to the height contravention. It follows, in my view, that if other than the prima facie case were to be adopted, and in particular the processes under cl 4.6 were to (still) apply (where the building height standard at cl 29(2)(a) of the SEPP was not met), then cl 29(4) need not exist at all in regard to any height contravention. While I have focused on this question of 'work to do' for cl 29(4) in regard to building height here (cl 29(2)(a) of the SEPP), I see the above conclusion as applying generally in regard to the standards raised cl 29(2) of the SEPP. That is to say, must not refuse provisions, naturally, would not prevent a consent authority from consenting to a development on the relevant ground.
4. There is a somewhat different setting in regard to cl 29(1) and FSR where, as discussed below, there is a more restrictive ambit ("grounds of density or scale"). But I note that cl 29(4) explicitly applies to both cll 29(1) and 29(2) of the SEPP.
5. If cl 29(4) is to have work to do, and here in regard to the building height standard at cl 29(2)(a) of the SEPP, then it would be in activating a particular discretionary function and as a point of departure from the (already existing) statutory discretion provided by the LEP. That is, to prevail over (in regard to cl 8 of the SEPP) the LEP's development standard at cl 4.3 and therefore what are the otherwise permissive powers of cl 4.6 (with their particular associated jurisdictional tests) in instances of maximum building height contravention.
6. Linking to the findings of Moore J in 193 Liverpool Road [48] (reproduced at [17] above), where "the very structured regime" under cl 4.6 is directly differentiated from an alternative merits-based analysis under the SEPP, the discretionary provisions at cl 29(4) can be seen to be purposive (that is part of the intended facultative intentions of the SEPP).

FSR

1. The provision at cl 29(1) of the SEPP establish that a consent authority must "not refuse on the grounds of density or scale" - in defined conditions. The applicable conditions of relevance here, further drawn out at cl 29(1)(c)(i) and in reference to the existing LEP FSR standards, are when "the density and scale of the buildings when expressed as a floor space ratio" are not more than "the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus 0.5:1".
2. As cl 29(1) indicates that density and scale is to be understood by the expression of the building's FSR, then this clause is only concerned with circumstances where the FSR is not more than the LEP allows.
3. From this point, my interpretation of the FSR question would follow that in regard to height as outlined at [27]-[30] above.

What assessment is required in regard to height and FSR

1. Notwithstanding there being no need for the "very structured testing regime" of cl 4.6 of the LEP (193 Liverpool Road [48]), in the authorities there is a consistent finding that there is need for what Moore J calls a "proper merit assessment" (ibid [49]) in instances where cl 29(4) of the SEPP is used. This is accepted by Mr Staunton (ACRS [33]): "… s4.15 of the EP&A Act provides the relevant framework for exercising the discretion in clause 29(4) of SEPP(ARH). In this case that framework would include considering the objectives of clause 4.3 & 4.4 of MLEP but also considering the aims of SEPP(ARH) and clause 30A of SEPP(ARH)."
2. This might have a particular resonance in regard to FSR considerations, in that the attention of cl 29(1) is in regard to building density or scale, whereas the objectives of FSR standards can commonly (and in this case do) reach beyond those particulars factors.

Planning controls

1. The SEPP provides at cl 30A: 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.
2. The objectives of the LEP's height of building clause are as follows: (a) to establish the maximum height of buildings, (b) to ensure building height is consistent with the desired future character of an area, (c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity.
3. The objectives of the LEP's FSR clause are as follows: (a) to establish the maximum floor space ratio, (b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas, (c) to minimise adverse environmental impacts on adjoining properties and the public domain.
4. The height and FSR standards and relevant proposal characteristics are indicated above [12]. There is no dispute the approved development on site already exceeds these standards.
5. The LEP provides quite differentiated FSR and height controls for parcels in the site vicinity. As might be expected, the PP site has relatively idiosyncratic controls under the LEP (building height mostly 29m with 35m nearest the station entrance) and FSR 3.4:1). Noteworthy as well are the points of difference for "non-PP" sites nearby: (1) in regard to height - the LEP's 20m standard applies to both the subject site and 24 Fisher Street, with a 17m control at the corner of Fisher and Audley Street, (2) in regard to FSR a 2.3:1 control applies to the subject site under the LEP, whereas 24 Fisher Street has a 2:1 control, with a 2.2:1 control applying nearer the corner.
6. The area falls within the South Petersham Precinct of Marrickville Development Control Plan 2011 ('DCP'), and is identified as falling within a "masterplan site". Figure 6.2b indicates certain building envelope controls and building height (in storey) controls, and differentiates the site from Masterplan Area 6A (Deicorp site including Building A). Figure 6.2b is reproduced in part below. While it is partly obscured, it is not in dispute that this plan indicates, for the subject site, building heights of 4 storeys, setback 3m from the street frontage then 5 storeys a further 3m setback.
7. Clause 9.6.2 of the DCP refers to desired future character for Petersham South precinct. In his evidence Mr McDonald referenced what he saw as the more relevant objectives (Ex 2 [32]). I agree with his position and reproduce the same (abbreviated) list of character objectives below: "… 7. To facilitate urban renewal in appropriate locations (predominantly on masterplan sites), allowing substantial change to the streetscape character while resulting in a high quality public domain. 8. To allow and encourage a greater scale of development and increased residential density on masterplan sites that provides new dwellings near local shops, services and public transport, to meet the market demand, create the opportunity for high access housing choice and support sustainable living. 9. To ensure orderly development on masterplan sites in accordance with the principles of the masterplan vision, including allotment amalgamations where required, that are not detrimental to achieving the overall masterplan structure and achieve an efficient and high quality built outcome. 10. To support excellence in contemporary design. 11. To ensure that the design of higher density development demonstrates good urban design and environmental sustainability and provides suitable amenity for occupants of those developments. 12. To ensure that the design of higher density development provides adequate amenity for the intended occupants of the building and protects the residential amenity of adjoining and surrounding properties. 13. To ensure that the provision and design of any parking and access for vehicles is appropriate for the location, efficient, minimises impact to streetscape appearance and maintains pedestrian safety and amenity. 14. To ensure that new development considers all potential impacts to biodiversity."

Implications of approved Building A and the Planning Proposal development on this assessment

1. There was considerable attention given to approved Building A and the PP over the Deicorp site and the associated processes. Mr Staunton believed it was these approvals which, in fact, gave rise to the application, according to ACSR [93]: "After the Minister signed the MLEP amendment and Council adopted the DCP and before the ink was dry on those documents the Council granted a consent ("Deicorp Consent") that approved a building adjoining the subject site with an 8 storey street wall which has a blank side wall abutting the subject site. The approval breached the newly made MLEP amendment by over 6 metres in height, breached the 6 storey street wall height by 2 storeys and breached the requirement for a 10m setback above the 6th storey. The effect of the Deicorp Consent is to create a 2 storey (blank wall) transition between the subject site and the Deicorp site which presents as a large visible blank wall in the streetscape. That outcome is entirely inconsistent with objective (d) of the height standard in clause 4.3 of MLEP which seeks to: (d) to nominate heights that will provide an appropriate transition in built form and land use intensity These are the true circumstances that have given rise to the application."
2. I understand these arguments to centre on two points. First, is in regard to the direct implications of the Deicorp consent, resulting in a "2 storey blank wall" to the approved development on the subject site. Second, is in regard to the approval process, and in particular what was seen as Council's setting aside of a series of controls which had been just adopted.
3. On the other hand, Mr Bonanno noted that submissions (to the PP public notification process) were made on behalf of the subject site, seeking amendments to the final LEP for the PP (concerned with uplift in yield for the subject site - not dissimilar to the current proposal). While there was more to it (see discussion below), a point of Mr Bonanno seemed to be that having not succeeded in regard to such submissions in the PP process (over the adjoining land), in a sense, an adjudicator's decision had already been made in regard to the subject proposal.
4. While I agree with Mr Staunton's point in regard to the direct implications of the transition between Building A and the approved development on the subject site as warranting attention, I am less convinced on other matters raised above by either party. In regard to Mr Bonanno's arguments, there was no evidence on the extent of planning evaluation of the submission for the subject land to be joined to the PP. It is clear that the exercise surrounding the PP was a considerable one and, for want of evidence, there may have been reasons, other than merits, why the planning authorities at that relatively late stage saw fit not to add the subject land to the proposed LEP changes.
5. Similarly I am unconvinced on the evidence, including the strong cross examination of Mr Irons, that LEP height and FSR standards, applying to the current proposal, are fundamentally weakened by the Deicorp development consent in general (as I know of it) or the Building A approval in particular. The notion of the protection of the important corner tree was indicated by Mr Irons as primarily behind the Building A changes and there was not coherent evidence to suggest that more should be read from this.
6. I agree with Mr Staunton's view that the strength the DCP provisions have been weakened as a consequence of the decisions in regard to both the Deicorp site and the approved development on the subject site (Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 [87]). But, I need to place less importance on the DCP than the LEP's own standards and their objectives here.
7. It seems to me the additional boarding house level (on top of the approved development on the site) proposed with this application, involving departures from the current height and FSR controls, are significant. It would seem reasonable to think there would need to be good public interest reasons, or other appropriate planning grounds, applying in the circumstances, to justify support. In my interpretation, the applicant's submission argues directly to these point.

Synthesising applicant's argument

1. I interpret the applicant's strongest argument to be that there is both a specific and general public interest in allowing the proposed additional development on the site. What I am calling the specific public interest, is centred on the proposition that there is an overall better outcome with a taller building on the subject land (in this argument the increased FSR is in a sense incidental). My appreciation is that there are three arguments involved here. The first is concerned with avoiding what would be a visually inappropriate blank wall between development on the subject land and Building A. The second, and perhaps point of contextual or local character attention, is that the continuation of this pattern of a stepping in height beyond the site to the west, is entirely appropriate and would avoid "a gap-toothed streetscape appearance" (as put by Mr McDonald, Ex 2 [38]), the argument is that development at 24 Fisher Street (to the west of the site) would also in time increase in height, above the LEP standard, as a reasonable transition to an approval of the subject proposal, and thus in accordance with the LEP's height objectives and the DCP's character statement. The third point notes that there is a good design (and commercial) sense to the height increase for buildings along this side of Fisher Street because of the opportunity to gain good sun exposure (with more facade) to the north.
2. As indicated above, according to the applicant, the specific public interest factors (cited above) have arisen or been triggered by Council's approval of the adjacent development, and in particular Building A.
3. The general public interest factor is concerned with providing more affordable housing with good transport accessibility.

Consideration

1. The applicant's most pertinent evidence on this point was from Mr McDonald who said (after referencing the figure reproduced below): "… there would be a gap-toothed streetscape appearance if the Boarding House building at 22 Fisher Street remains as it is and a development at 24 Fisher Street is at 20 metres high where it faces the street. Two storeys of blank wall on the western elevation of Building A at 16020 Fisher Street will present in views along Fisher Street approaching from Audley Street. I consider this to be a most unsatisfactory urban design outcome. It is acknowledged that the height standards of MLEP apply beyond the Fisher Street frontage where the land slopes down. However, the urban context to the rear of the site will change radically. The proposed additional floor at the rear roof is about 24 metres above natural ground level. The visual impact of the height here will be not be at odds with the visual impact of the eight storey Building A to the east, the eight storey Building C in Trafalgar Street and the 10-11 storey Building B at the corner of Regent and Trafalgar Street in the Deicorp development. Furthermore, the height will be mitigated by a step down of the building at 22 Fisher Street to the approved six storey height to Fozzard Lane."
2. Mr McDonald further elaborated with regard to the relationship between the site and the adjacent development's height and (reduced) streetwall setback and visual impact (Ex 2 [72]): "The main point I make is that bulk and scale is not something that can be simply be evaluated by numbers. Important factors are built form; how the massing of a building is articulated, how it fits into both an existing and future context and, to put the matter in the simplest of terms, what it will look like. In this case, planning decisions have already been made that will radically alter the urban context on the north side of Fisher Street in contrast to the likely limited amount of change that will occur on the south side."
3. Mr McDonald also referenced the height control objectives in the LEP indicating that given the approved adjacent (taller) development "(a) smaller seven storey building immediately next door cannot be considered to be out of character" (Ex 2 [43]) and would not unreasonably affect sunlight exposure.
4. Mr Irons also referenced the LEP standards and believed that the desired future character was reflected by the development standards themselves (height as well as FSR) and DCP built form controls with which the proposal does not comply (Ex 2 [48]).
5. Mr McDonald and Mr Gosling were positive about the potential for a taller redevelopment of 24 Fisher Street, as part of a perceived height transition along Fisher Street. Mr Gosling indicated that achievement of the LEP's height controls would be "thwarted" (mindful of Wehbe v Pittwater Council (2007) 156 LGERA 446 [46]) if the additional storey was not approved. Mr Gosling referenced the particular LEP height objective at cl 4.3(1)(d): "to nominate heights that will provide an appropriate height transition in built form and land use intensity" (Ex D, p5).
6. Mr Irons' evidence was that based on the current built form controls, including the lower FSR of 2:1; a five-storey building with upper recessed floor would already more or less meet the existing FSR controls. As I understood it, Mr McDonald's evidence was that there was a design interest in a building working to meet the LEP's 20m height control (ie exceeding the DCP control) while meeting the LEP's FSR control. That is, through a smaller building depth or footprint. As indicated above, the benefit was the additional northern façade available for solar access.
7. Having regard to the LEP's height of building objectives and the issue of "an appropriate transition", it does not seem to me that the applicant's position is much assisted. In its context, the objective referenced ie cl 4.3(1)(d) of the LEP is an explanatory objective, referencing why certain height controls are nominated under cl 4.3(2), that is, in the LEP's Height of Buildings Map (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 [43]). Clause 4.3(1)(d) seems to me to emphasise that it is the LEP's Height of Buildings Map which establishes the appropriate transition. Clause 4.3(1)(a) is a similar explanatory objective.
8. In regard to cl 4.3(1)(b) and the clause objective "to ensure building height is consistent with the desired future character of an area", the applicant's experts suggest a desired future character which responds to the approved Deicorp development. It seems to me this position, while reasonably concerned with general questions relating to visual impact and transition, is not on point with the clause objective. Mr Irons, in my opinion correctly, gives primacy to the existing LEP controls as indicating the (relevant) desired future character. A decision to approve the Deicorp development, and in terms of Building A contravention of the height control to allow for achievement of another planning outcome (important tree retention), would not alter the desired future character of the area as understood in the LEP.
9. In regard to cl 4.3(1)(c) and the clause objective "to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight", Mr Gosling indicates the additional floor would result in some extra overshadowing at mid-winter "at the front gardens of the properties at a higher ground level on the opposite side of Fisher Street" and a small increase in shadowing to some front windows. His view is satisfactory exposure to sky and sunlight is maintained (Ex B, cl 4.6 objection documentation). I note a lay objection was raised in regard to increased overshadowing (Ex 3, folio 4). The position here is that there would be some consequential increase in amenity impacts with the additional floor to the boarding house, although these impacts may be considered minor.
10. While the point of attention here is building height, I generally find similarly in regard to the LEP's FSR objectives, which include concerns in regard to "(controlling) building density and bulk in relation to the site area in order to achieve the desired future character for different areas" and "(minimising) adverse environmental impacts on adjoining properties and the public domain". That is, that the proposal is at odds with both LEP and FSR objectives, in that it is not aligned with the height and FSR controls as far as they define desired future character, and that the proposal does other than minimise environmental impacts on adjoining properties. While there would be some additional overshadowing in any event, the question of impacts on the public domain needs to be considered in the analysis of the height transition question, and Building A's two storey "blank wall".
11. It is important to emphasise that there is no requirement for the proposal to achieve consistency with the objectives of either height or FSR standard.
12. I now return to the argument about the adverse visual impact of Building A's two storey "blank wall" abutting the subject site as would exist with the approved development. Firstly, it seems to me reasonable to accept Mr Irons' argument that, with respect to the question of height, the desired character is established (under the LEP controls); and building heights of 20m apply to the subject site under the LEP's height control. I am not convinced that there is a reasonable argument to say that because the existing approval over the site involved a contravention of this height standard, it necessarily follows that there are planning grounds for a further contravention. Rather, and as attempted, the applicant would need to establish a public interest based on a significant objectionable visual impact for passers-by or local residents, or as their eyes turn to the western end of Building A and its juxtaposition with the approved development on the subject site.
13. While I have considered the submissions of the applicant's experts, I cannot agree there would be a significant objectionable visual impact with development in accordance with the current approvals. I accept the point in regard to justification for taller corner sites to a point. But more relevantly, when walking along, or perhaps residing in Fisher Street, one would, and would in a sense be unsurprised to see some considerable differences in building height. Importantly, in this street, street trees are also a strong visual element in the public domain in Fisher Street. When noting the fact that the area is subject to some transition: that is, that the Fisher Street environs like many parts of Sydney is subject to densification; a two level "blank wall" five or so levels above the normal sight-line (especially with sight lines filtered through street trees), cannot be thought of as striking or objectionable to one with normal sensitivities.

Car parking

1. The proposal includes no new parking but would be integrated with the approved development on site which proposes 12 parking spaces in a basement level.
2. Mr Irons evidence is that (Ex 2): "111. Part 2.10.5 of the MDCP 2011 requires 0.5 car spaces per boarding room plus 1 car space per employee. Based on 56 boarding rooms (exclusive of the 2 managers rooms), 28 car spaces are required. 2 additional car spaces are required for employees resulting in a total of 30 car spaces. … 114. … I conclude that the proposal provides 0.172 car spaces per boarding room, significantly less than the required 0.5 car spaces per boarding room, and less than what was approved (0.2 car spaces per boarding room)."
3. Mr Gosling noted the recent amendment to the DCP in regard to parking (1 August 2019) changing the rate from 0.2 to 0.5 spaces per boarding room. Mr Gosling indicated if savings and transitional provisions for this amendment existed to the extent that the prior controls applied, then the proposal, when considered as a whole, would be only marginally under the control. Mr Gosling emphasised the site's proximity to Petersham railway station and numerous bus services in the site vicinity. He indicated that future residents of affordable rental housing are less likely to own a vehicle and will be attracted to a site with good public transport.
4. A lay submission from a local resident (both oral and in writing at Ex 3, folio 3-4) suggested a "critical saturation of available street parking" already existing in the precinct as a consequence of recent development occurring in the locality.
5. In cross-examination of Mr Irons and submissions Mr Staunton pointed to what he saw as anomalies in the DCP on this point. In particular it was shown that while the DCP seeks to constrain parking and encourage public transport use (DCP cl 2.10.1), the change in parking requirements for boarding houses would seem to do the opposite. Mr Staunton also referenced the DCP parking requirements for residential studios (at 0.2 spaces per unit vs 0.5 spaces per unit, generally, for boarding houses).
6. The lay objector made plain the practical difficulties in accessing parking in the local streets as new housing develops nearby. The DCP indicates it is seeking to "balance" parking demand with wider goals in regard to land use transport integration. It specifically indicates an objective of "applying strict constraints to car parking within accessible areas" (DCP cl 2.10.1, O3). There is also a provision in regard to varying rates for developments with "special characteristics", "affordable housing" is cited as an example (ibid, O5).
7. It is reasonable to expect planning authorities to adopt policies on how such "difficulties" or policy conflicts may be dealt with. The LEP's FSR controls, as an overall (albeit coarse) indicator of density, are a negative for the applicant in that regard, given the proposal's non-compliance. But there is confusion in the varying provisions in the DCP [70]. Given the site's proximity to public transport, I generally agree with Mr Gosling that there will be a tendency for this site to be attractive to individuals who do not own cars. I do not see the parking non-compliance as a determinative factor in this case.

Public interest

1. This contention of Council is concerned with the faith in which the public can have in its planning system. The Council has given particular emphasis to the fact that submissions were made during the PP process for the adjacent land seeking to uplift the yield for the subject site. I have previously indicated that this earlier submission on behalf of the subject land should be in no weight in regard to this assessment. It is necessary for the subject application to be considered on its own merits. The approved development on the adjoining land is a factor here, but only one of many. If this was the suggestion, I do agree with Mr Bonanno that it would be wrong for owners of adjoining land to expect, by default, some additional development potential merely as a consequence of proximity to land, which has undergone a comprehensive planning process. There is a need for individual cases to be considered on their merits, and I see nothing other than this occurring here.
2. Apart from the applicant's suggested positive visual impact in the streetscape, which I have disagreed with, it was also suggested that the additional floor space, in such close proximity to public transport, provided a planning justification, or public interest, of itself (Ex C, p8): "…the increased FSR will result in in more people being able to reside in a different form of affordable housing in an area that is otherwise typically expensive due to its desirable proximity to the city and other sought after facilities. "
3. I agree with Council that incentives for the denser boarding house development under SEPP ARH are already factored into controls applying to the site, and which are not complied with.

Conclusion and orders

1. While the Court has power to consent to development which exceeds the applicable height and FSR development standards (under cl 29(4) of SEPP ARH), it is necessary to apply a merit assessment before such consent is granted. Notwithstanding the provisions of cl 29(4), the tests for development seeking to over reach such standards remains considerable. In this case, and in consideration of the evidence, and the LEP's objectives in regard to height and FSR, as well as the aims of SEPP ARH, I have not found that the case has been made to override these standards, and therefore consent cannot be granted to the development.
2. The Court orders: 1. The appeal is dismissed. 2. The development application No DA201800224 for the construction of an additional level to an approved six storey boarding house at 22 Fisher Street Petersham is refused. 3. The exhibits are returned with the exception of Exhibits A and B. ………………………. P Walsh Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2019