Cadele Investments Pty Ltd v Randwick City Council

The proposal

1. At the hearing leave was granted to rely on the following additional documents: 1. Amended Statement of Environmental Effects (Amended SEE) prepared by Planning Ingenuity, dated 11 March 2021 (Ex B, Tab 3). 2. Preliminary Geotechnical Investigation prepared by Martens Consulting Engineers dated March 2021 (Ex B, Tab 4). 3. Traffic Impact Assessment prepared by TRAFFIX dated March 2021 (Ex B, Tab 9). 4. Accessibility Review Report prepared by ABE Consulting dated 10 March 2021 (Ex B, Tab 10). 5. Boarding House Noise Impact Assessment prepared by Pulse White Noise Acoustics dated 5 March 2021 (Ex B, Tab 11). 6. Arboricultural Comment Regarding Impact of Revised Proposed Development prepared by Tree Wise Men dated 11 March 2021 (Ex B, Tab 12). 7. Revised BASIX Certificate number 1087816M_02 dated 08 March 2021 (Ex B, Tab 15).
2. The changes between the Amended Plans (Ex A) and the original DA plans lodged with the Class 1 application are identified in Section 2 of the Amended SEE (Ex B, Tab 4) and can be summarised as follows: 1. The building envelope has been modified with various changes, depending on the level, to the building setbacks. The main changes occur to the northern and southern setbacks. The northern boundary setback to the Fourth and Fifth Floors is increased by 1.0m (to 6.0m) to align with the Third Floor. The southern boundary setback (to 10 Clyde Street) remains unchanged on the First and Second Floors, but is increased by 1.8m on the Third Floor and by 3.8m on the Fourth Floor, and decreased by between 1.0m - 1.5m on the Fifth Floor. 2. With the changes to the building envelope, the maximum building height has reduced from 12.08m to approximately 10.8m. This occurs on the Fourth Floor, largely due to the rising ground level coupled where the building is setback further from the southern boundary. 3. The corridors on the western side of the building at the First to Fourth Floors have been enclosed and the area included in the gross floor area (GFA). 4. On the Ground Floor the entry to the building has been relocated from the eastern side of the building to the western side, and the lift and fire stair reconfigured. The reconfiguration of the lift and fire stair affects all levels. 5. The driveway now runs adjacent to the eastern side boundary and the parking layout has been amended for vehicles, motorcycles and bicycles and a temporary delivery vehicle space added within the first side aisle. All 14 car spaces (including two accessible spaces) are provided in three mechanical car stackers, compared to 12 spaces in six car stackers and the two accessible spaces not in stackers. 6. The garbage room has been relocated from the Ground Floor to the First Floor (subterranean space) with a new hoist lift provided from the Ground Floor. 7. On the First Floor, the "common living area #2 indoor games room" and the laundry have been decreased in size and a new bulky goods store has been provided, all within the excavated (subterranean) portion of the building. 8. The Second Floor remains largely unchanged, except for the reconfigured lift and fire stair, and the reduced size and changed shape of the subterranean plant and services room. 9. On the Third Floor the "communal living area #1" has been increased in size and the floor plan reconfigured. 10. On the Fourth Floor one boarding room has been removed and the floor plan reconfigured. 11. On the Fifth Floor, which contains the Manager's Room, the building has changed to a circular form, with balcony cut-out in the north-east corner. 12. The total number of boarding rooms, including the Manager's room, has reduced from 30 to 29. 13. The floor space ratio (FSR) has reduced from 1.25:1 to 1.21:1.

Changes arising during the hearing

1. During the hearing and arising from the expert evidence it was suggested to the Court that some matters could be resolved with further amendments to the plans, and that these could be incorporated as conditions of consent. In the Joint Traffic Report the traffic engineers suggested an alternative parking arrangement, as illustrated in Figure VD1 of that report. The alternative arrangement agreed to by the traffic engineers involves: 1. The introduction of a private car share scheme managed by the operator of the boarding house for the use of the boarding house residents only. The traffic experts agree that one car share vehicle is equal to a credit of five vehicle spaces, and would result in a reduced requirement for the development from 15 to 11 spaces. 2. The removal of the 2 x 3 vehicle car stackers in the first aisle and their replacement with three standard spaces - one for the car share vehicle, one accessible space and one manager's space. 3. The eight space car stacker accessed off the second aisle remains, albeit with the introduction of a 1:20 gradient ramping of that aisle. The slope in the aisle is to allow for lowering of the base of the car stacker to enable sufficient height clearance of at least 3.75m, as illustrated in Figure VD2 of the Joint Traffic Report. 4. Collection of waste from the street and not from within the Site, with the temporary storage of the waste bins prior to collection within the Site's access handle.
2. In response to the evidence of Mr Turrisi at par 2.13 of the Joint Planning Report the Applicant tendered a set of three architectural drawings (Ex H) comprising a revised Fourth Floor Plan (1910-AP 160 B), revised East Elevation (1910-AP 301 B), and revised West Elevation (1910-AP 302 B), all stamped "PRELIMINARY". The Exhibit H drawings illustrate the effect of removing Room 4.1 on the Fourth Floor. Mr Turrisi's evidence was that "deletion of Room 4.1 would result in a similar outcome (in terms of building height breach) as approved (in DA/553/2017) and something that could be supported."
3. Changes to the treatment of the external windows were also proposed to better protect the privacy of neighbours and, on the western side, in order to also reduce noise and light spill from the access corridors. Those measures are illustrated in two additional architectural drawings of 1:20 scale sections and elevations of façade details, tendered as part of Exhibit J.
4. One of the landscape plans was also amended (Drawing reference LS05 Issue F dated 4 May 2021) and was tendered as part of Exhibit J in order to resolve aspects of the landscape contentions. It shows an alternative landscape design for the communal open space located north of the "communal living area #1".

The Site and local planning context

1. The Site comprises a 796.7m2 allotment of land at 8 Clyde Street, Randwick. The land is legally described as Lot 8 in DP 28464. The Site is a battle-axe allotment with a 6.1m wide access handle to Clyde Street on the western side of the cul-de-sac's turning circle. The access handle is approximately 14m long.
2. The Site has an irregular rectangular shape tapering to the north, with a 11.28m northern boundary, a 49.165m eastern boundary and 49.805m slightly kinked western boundary. To the south the boundary to 10 Clyde Street, beyond the access handle is 14.63m and along the access handle is 14.35m. The Site has an overall slope of 21% from the north to the south-east, with a maximum slope of approximately 30% at the northern end (refer Preliminary Geotechnical Investigation, Ex B, Tab 5, p 6). An easement for stormwater channel affects the south-western portion of the Site.
3. The Site is occupied by a part two, part three storey dwelling house. Numerous trees occupy the Site and several trees are on adjacent land and in close proximity to the boundaries. A site survey tendered as Exhibit E shows the boundary dimensions, existing trees (x 48), contours and spot levels as well as the location of the easement, the existing dwelling and majority of the adjoining residential buildings.
4. The Site in its' context is illustrated in the aerial photographic image found at Figure 1 of the Amended SEE (Ex B, Tab 4), which is reproduced below. The Site is surrounded by a mixture of residential development including: 1. Residential flat buildings of three to four storeys to the north fronting Alison Road. 2. Two storey town house development with above ground parking to the east at 4-6 Clyde Street. 3. Residential flat buildings of four storeys to the north-west at 3 Pitt Street, and three storeys to the west at 5 Pitt Street. 4. Two and four storey dwelling houses to the west at 9 and 11 Pitt Street. 5. A single storey dwelling house to the south at 10 Clyde Street.
5. Photographs of the existing built environment are found at Figures 2 - 12 of the of the Amended SEE (Ex B, Tab 4) and in the Joint Planning Report. The character of the locality is a matter of contention and is addressed in my response to Contention 5.

Decision

1. For the reasons set out in this judgment the proposed development, subject to conditions, is acceptable and warrants approval. In reaching this decision, I have taken into consideration the written evidence of the town planning experts Mr Jeff Mead (for the Applicant) and Mr Gerard Turrisi (for the Council) as set out in the Joint Planning Report (Ex 4) and their oral evidence; the evidence of the traffic experts Mr Vince Doan (for the Applicant) and Mr Jason Rider (for the Council) as set out in their Joint Traffic Report (Ex 5); the oral evidence of Mr Craig Wheatley (for the Applicant) and Mr John Flanigan (for the Council) on stormwater engineering issues associated with building within or over the drainage easement; and the various plans and reports tendered in the proceedings.
2. I have also taken into consideration the relevant matters of the various statutory instruments and other matters for consideration under s 4.15 of the EPA Act, including the written public submissions included in the Council bundle of documents (Ex 1), the oral submissions made at the site view, my own observations of the Site and its environs taken at the site view, and the Parties' submissions in the hearing.

Satisfaction of planning legislation, environmental planning instruments and other planning documents

1. The relevant statutory controls are listed at par 18 of the Amended SOFC and are addressed below.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) aims to encourage sustainable residential development through the incorporation of sustainable design and building measures to achieve more water and energy efficient buildings. It includes an on-line program administered by the New South Wales (NSW) Department of Planning Industry and Environment that assesses a residential development against water, thermal comfort and energy reduction targets. Designs must meet or exceed these targets before a BASIX Certificate can be issued. In this case an amended BASIX Certificate (Certificate number: 1087816M_02 dated 08 March 2021) was tendered as part of Exhibit B at Tab 15. The certificate demonstrates that the provisions of BASIX SEPP have been satisfied, and this is not in dispute between the Parties. Conditions of consent can ensure compliance with the Commitments in the BASIX Certificate.

State Environmental Planning Policy No 55 - Remediation of Land

1. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), specifies at cl 7 that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if so whether the land is suitable in its contaminated state or can and will be made suitable by remediation for the purpose for which the development is proposed.
2. For the purposes of cl 7 of SEPP 55 consideration has been given to whether the site on which the development is to occur is contaminated. The evidence before the Court is found in section 5.2.1 of the original Statement of Environmental Effects dated 23 April 2020 (Original SEE) tendered at Exhibit B, Tab 3. The Original SEE states: "Based on an investigation of application history, perusal of historic aerial imagery and a site inspection, … it is unlikely to be contaminated. Contamination was not raised as an issue in relation to DA/553/2017 [the DA for the residential flat building approved by Council]. No further action is required in relation to contamination."
3. Contamination was not raised as a contention and I accept the above statement. Conditions of consent can address the management of any asbestos related contamination discovered during demolition. The relevant provisions of SEPP 55 have therefore been considered and remediation addressed.

State Environmental Planning Policy (Affordable Rental Housing) 2009

1. 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) is not in contention.
2. 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 Randwick Local Environmental Plan 2012 (RLEP). 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 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. This is raised in Contention 1 of the Amended SOFC.
3. The Parties agree that the maximum FSR permitted on the Site is 1.25:1 calculated as 0.75:1, being the existing maximum FSR permitted under the provisions of cl 4.4 of the RLEP, plus 0.5:1 permitted under the provisions of cl 29(1)(c) of the SEPP ARH. The Council contended in Contention 1 that the development exceeded 1.25:1 and therefore should be refused. The town planning experts agreed in their Joint Planning Report that the DA as amended had a FSR less than 1.25:1 and this contention was resolved. Refusal of the DA on the grounds of density or scale when expressed as a FSR is therefore not available by virtue of cl 29(1) of the SEPP ARH.
4. 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 Council contended that the development should be refused because it was not consistent with the following matters referred to in cl 29(2): 1. Building height (cl 29(2)(a) of the SEPP ARH) as it exceeds the maximum height permitted in the RLEP. This is addressed in my response to Contention 2. 2. Solar access (cl 29(2)(c) of the SEPP ARH) as the communal living area on the Third Floor does not receive the nominated three hours of solar access. This is addressed as part of Contention 6. 3. Parking provision (cl 29(2)(e) of the SEPP ARH) as the development fails to provide the requisite number (15) of resident parking in a suitable manner. This is addressed in my response to Contention 3. 4. Accommodation size (cl 29(2)(f) of the SEPP ARH) as the Council claims that 28 of the 29 double rooms have an area that measures less than the 16m2 nominated for rooms accommodating 2 people. This is addressed in my response to Contention 4.
5. Council also contended that the development should be refused on the basis that it was not consistent with the character of the locality. 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. This is considered in my response to Contention 5.

Randwick Local Environmental Plan 2012

1. The Site is located within the Zone R3 Medium Density Residential (R3 Zone) 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" development is permissible with consent in the R3 Zone. The consent authority must have regard to the objectives for development in the R3 Zone set out in the Land Use Table, pursuant to cl 2.3(2).
2. The Council and the town planning experts did not contend that the proposal was contrary to the aims of the RLEP (cl 1.2). Nor was compliance with the objectives of the R3 Zone specifically in contention although these are examined in my response to Contention 2, and in particular in my consideration of the Clause 4.6 Request to vary the height of building development standard.
3. Clause 4.3 Height of Buildings. The development, with a height in the order of 10.8m - 11.0m, exceeds the 9.5m maximum height of buildings development standard in cl 4.3(2A) of the RLEP. Accordingly, a request to vary that development standard pursuant to the provisions of cl 4.6 of the RLEP was provided; a copy of which is found at Annexure A of the Amended SEE at Exhibit B, Tab 4 (Clause 4.6 Request). This is addressed in my response to Contention 2.
4. Clause 6.2 Earthworks. Clause 6.2(3) of the RLEP 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 Preliminary Geotechnical Investigation prepared by Martens Consulting Engineers (Ex B, Tab 5). Council contended that the Preliminary Geotechnical Investigation did not adequately address issues associated with the eastern wall of the driveway and subterranean portion of the building proposed to be built to the boundary. This is addressed in my response to Contention 10.
5. Clause 6.4 Stormwater Management. Clause 6.4(3) of the RLEP 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 Stormwater Management Plans prepared by M+G Consulting Engineers Issue 1 dated 20 April 2021 (part of the Class 1 Application), and the plans showing works within the stormwater easement in the "stormwater plans" tendered as Exhibit D. Stormwater drainage and flood management have been addressed in my response to Contention 11.

Randwick Comprehensive Development Control Plan 2013

1. The Randwick Comprehensive Development Control Plan 2013 (the DCP) is a relevant matter for consideration under s 4.15(1)(a)(iii) of the EPA Act. Part C, Section C4 relating to Boarding Houses (Section C4) contains the key provisions of the DCP that are relevant to the DA. A copy of Section C4 was tendered as Exhibit C. Some of the objectives and some of the controls in Section C4 were raised as Particulars in Contention 6 relating to Amenity. These are addressed in my response to Contention 6.
2. Council contended that Part C, Section C2 of the DCP (Section C2) also applies to the development, and tendered a copy of this in its bundle of documents (Ex 1, Tab D, Folios 560-620). More specifically the Amended SOFC contends in the Particulars: 1. for Contention 2 (Building Height), that there are inconsistencies with Subsection 4.4 of Section C2 for external wall height, and 2. for Contention 5 (Character of Local Area) there are inconsistencies with Section C2's minimum landscaped open space (Subsection 2.2), maximum building depth (Subsection 3.3), side and rear setback controls (Subsection 3.4), and articulated building facades (Subsection 4.1).
3. In his opening submissions Mr Seymour for the Applicant maintained that on its face Section C2 does not apply. In closing submissions Mr Philips argued Section C2 of the DCP does apply and Mr Seymour said it was necessary to resolve this issue.

Applicability of Part C2 of the DCP to Boarding Houses

1. To apply the DCP it is necessary to consider its structure. The DCP has a tiered and primarily hierarchical structure, with some 'overlays' for specific geographical locations or subject matters. In the Introduction to the DCP, (at Part A, Section A1, Sub-section 1.7) it states: "1.7 How to use this plan and structure The structure and format of this DCP has been organised to enable the user to easily find relevant information for the preparation and assessment of a DA. It establishes a hierarchy of information from the general to the specific."
2. The DCP comprises 6 "Parts", labelled A to F, for example "Part C - Residential". The following Table (at page 4 of Part A of the DCP) provides a brief explanation of the six Parts. As can be seen from that Table different Parts apply in different circumstances. Part B applies to all development requiring a DA in the Randwick Local Government Area (LGA); Part C applies to residential uses; Part D applies to commercial and industrial uses and also to some specified types of centres, and Part E is location-specific, rather than specific to particular development types. For some developments, in addition to Part B, more than one Part may apply.
3. In the second tier, within each Part, there are "Sections", for example within Part C - Residential there are four Sections labelled C1 to C4, for example "Section C2 - Medium Density Residential". Reproduced below is the DCP's Contents page setting out the six Parts and their respective Sections.
4. In the third tier, within each Section, there are numerous subsections; for example in Part C - Residential, Section C2 Medium Density there is Subsection "3.4 Setbacks". This is apparent in the Contents page for each Section; for example the Contents page for Part C, Section C2 - Residential Medium Density reproduced below.
5. Some subsections may contain a fourth tier. In the above example Part C - Residential, Section C2 Medium Density Residential, Sub-section 3.4 Setbacks there is a fourth tier commencing with "3.4.1 Front setback".
6. At the subsection level the standard format is for an "Explanation" followed by "Objectives" and then lastly "Controls". Where the DCP employs a fourth tier, this contains Controls only.
7. In the DCP's Part A Introduction, Section A2 Development Applications, Subsection 2.1 DA requirements, it states (at page 6): "Depending on the proposed development, several Parts of this DCP will need to be considered. For example, Part B General Controls is relevant to all DA's. Referral to other Parts will also be necessary depending on the type of development. For example residential development such as alterations and additions to a dwelling house will also need to refer to Part C while Part D is relevant for commercial development. For design guidance on land uses not specified in this DCP, refer to sections relevant for the zone or location." (emphasis added)
8. Identifying the applicable controls requires stepping through the various tiers of the DCP. In some instances a degree of interpretation or judgment is required to determine which controls may apply and, if applicable, whether they are relevant to the particular circumstances. For example Part B of the DCP relating to "General Controls" clearly applies to all DA's within the Randwick LGA, including the subject DA. The applicability of Part B was not in dispute, although not all of Part B are relevant to the DA; for example Section B2 Heritage.
9. The next step is to determine the "type of development" generally, which in this case is "residential development". This invokes the need to refer to Part C. Moving from the general to the particular, the next step is to determine whether the proposed development is specified in the Part.
10. Within Part C there are four separate Sections: Section C1 - Low Density Residential, C2 - Medium Density Residential, C3 - Adaptable and Universal Housing and C4 - Boarding houses. Each of these Sections contain development controls for the particular type of development specified.
11. In this case the applicability of Section C4 - Boarding houses is clear, and not contested. It provides (at subsection 1.2) as follows: "1.2 Application This DCP section applies to all DAs for new or existing boarding houses, which seek approval for - establishing a new purpose built boarding house; - conversion or adaptation of an existing building to a boarding house; or - alteration, intensification or refurbishment of an existing boarding house. …"
12. Section C2, however, is less definitive in terms of identifying the development to which it applies. On the one hand, in the "Introduction" to Section C2, the specified list of development types is not exhaustive: "This section of the DCP contains objectives and design controls which apply to new development and alterations and additions for the purposes of medium density housing including the following types of development defined in the RLEP (emphasis added): - Attached dwellings; - Multi dwelling housing; and - Residential flat buildings. …"
13. In Subsection 1.1 of Section C2 the DCP provides an explanation of what characterises "medium density housing" in the Randwick LGA, and lists only three specified "dwelling types covered by this section". It states: "1.1 Medium density housing in Randwick LGA Over half the housing stock in Randwick consists of medium density housing, characterised by pre and post war residential flat buildings, walk up flats, newer multi storey apartment buildings, villas and terraces. The following terms describe the dwelling types covered by this section and as defined by RLEP." (Emphasis added)
14. It then identifies the three specific "dwelling types" - "Attached dwellings", "Multi-dwelling housing" and "Residential flat buildings" and describes and defines each by reference to the RLEP definitions, with supporting diagrams and photographs. The apparent inconsistency between the Introduction and Subsection 1.1 of Section C2 raises doubts about whether it applies to a boarding house, which has its own Section in the DCP.
15. Section C4 has limited controls, for example it does not include controls for building setbacks or landscaped open space. Section C4, however, contains in its Introduction a 'catch-all' provision that it "should be read in conjunction with … other sections for specific development types, locations or sites", provided those other sections are "relevant to the application". Section C2 has an identical 'catch all' provision, as do numerous other Sections of the DCP.
16. Mr Phillips, in support of the applicability of Section C2, referred the Court to the "Introduction" to Section C4, which states that this Section of the DCP should be read in conjunction with the SEPP ARH, Parts A and B of the DCP and, significantly according to Mr Phillips, the 'catch all' provisions. He submits that Section C2 is one of the "other sections" of the DCP that is relevant and applicable to the DA and that Section C4 "provides more and particular, but complementary, controls with respect to Boarding Houses which must be read in conjunction with (but not to the exclusion of)" Section C2.
17. At par 5.14 of the Joint Planning Report Mr Mead raises doubts as to whether Section C2 applies to boarding houses, saying this was arguable, "… but in any case, those controls have been used to inform the design."
18. In oral evidence Mr Turrisi advised the Court he had considered the provisions of Section C2 and that it informed his consideration of the future character of the area with respect to built form outcomes, amenity impacts and the interface with adjoining development. In the Joint Planning Report both experts addressed the provisions of Section C2 that were raised in the Amended SOFC particulars (for Contentions 2 and 5).
19. The controls are based on a hierarchy of controls from the general to the specific. The user of the DCP, including the Court in determining the application, is required to identify the "specific" controls by, amongst other things, identifying the specific category of land use, in this case "residential" and, if available, the specific development type, in this case "boarding house". This takes the DCP user to Section C4 which is specific to boarding houses.
20. The 'catch-all' provision takes the user back to the other Sections, including Section C2 if relevant. That in turn requires consideration of whether the other Sections are relevant. In this particular instance the question is whether Section C2 is relevant.
21. The planning experts do not maintain that Section C2 does not apply, although Mr Mead offers his opinion that the proposition is arguable. Mr Seymour submitted that Council's position must be wrong, based on the wording in Subsection 1.1 and because "the development types identified don't have a state instrument". I do not find the latter part of this argument persuasive. On the contrary, for residential flat buildings (one of the specified development types) there is a state instrument, namely State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65).
22. Adopting a cautious approach, on the basis of the Introduction to Section C2 and notwithstanding Subsection 1.1, I find that Section C2 is a Section of the DCP that should be read in conjunction with Section C4.
23. In delving into Section C2 it is apparent that some of its provisions or controls are potentially relevant to the DA. Others, however, are not as they are specific to other, specified development only.
24. For example, in Subsection 3.4 relating to setbacks, the "Explanation" and "Objectives" refer to a building and not to any particular 'development type'. Accepting that Section C2 needs to be read in conjunction with Section C4, the Objectives in Subsection 3.4 may therefore be considered relevant to a building containing a boarding house. As there are no setback controls for Boarding Houses in Section C4, the setback controls in Section C2 are, prima facie, complementary to and not inconsistent with Section C4.
25. Not all the "Controls" for Subsection 3.4, however, are applicable to boarding houses. The Controls for front setbacks (at 3.4.1) relate to buildings and are not specific to any development type. By virtue of the 'catch all' provisions in Section C4 they are therefore applicable to boarding houses. In the circumstances of this case, however, the front setback provisions are not relevant as the building is located on a battle-axe allotment, and does not address the street.
26. In contrast the Controls for side setbacks (at 3.4.2) and the rear setbacks (at 3.4.3) are specific to "residential flat buildings", "multi-dwelling housing" and "attached dwellings". Boarding houses are not specified. I have to assume the selective application to the three nominated development types is deliberate. I therefore find that while Section C4 needs to be read in conjunction with Section C2 it does not follow that all the provisions or all the Controls in Section C2 are necessarily applicable or relevant to the application.
27. In any event, if my approach to the relationship between the Sections of the DCP is incorrect, the EPA Act assists when considering development control plans generally. Section 3.42(1) of the EPA Act provides that provisions of a development control plan are not statutory requirements and that their principal purpose is to provide guidance to the consent authority on: a) giving effect to the aims of any environmental planning instrument that applies to the development, b) facilitating development that is permissible under any such instrument, c) achieving the objectives of land zones under any such instrument.
28. Section 4.15(3A)(b) of the EPA Act provides if a development control plan contains provisions that relate to the development the subject of a development application and: (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and … (emphasis added)

Contentions

1. The original Statement of Facts and Contentions filed on 31 August 2020 pre-dated the Amended Plans. In light of amendments to the DA and the provision of additional information the contentions in the Amended SOFC removed an earlier contention (Contention 11) relating to the environmental impacts associated with the removal of trees, with specific reference to removal of trees on neighbouring properties. The remaining contentions did not substantially change. The protections of trees was a matter raised in public submissions and can be addressed in the conditions of consent.
2. At the commencement of the hearing Mr Philips summarised the Council's position with respect to the contentions, taking into account the additional information and the joint reports of the town planning and traffic experts. The Council's position with respect to contentions that had largely been resolved or had partially been resolved is summarised as follows: 1. Contention 1 - Floor Space Ratio - had been resolved in substance, in that the Amended DA complied with the numerical control, although there were other issues flowing from it. The consequential issues are addressed as part of the town planning evidence. 2. Contention 3 - Parking - had been resolved in substance because of the proposed car share space plus the two storey car stacker, and can be addressed in conditions. 3. Contention 4 - Accommodation size - has been partially resolved subject to the calculation of the area of the rooms. If the Court finds in favour of Council's position, then, it maintained 27 of the 28 rooms (not including the Manager's Room) would be classified as single rooms and not double rooms. This reclassification can be addressed in conditions. 4. Contention 8 - Visual and Acoustic Privacy - was partially resolved by conditions dealing with acoustic privacy, but visual privacy was still not resolved. 5. Contention 9 - View Loss - was partially resolved if Room 4.1 was removed, and this also largely deals with the height exceedance. 6. Contention 10 - Earthworks, and Contention 11 - Council Drainage Easement, could be resolved subject to conditions based on recently received information and dependent on the oral evidence of the engineers. 7. Contention 12 - Waste Management - was partially resolved by the evidence of the traffic engineers, and may be able to be resolved by conditions. 8. Contention 13 - Insufficient Information - was partially resolved.
3. The remaining contentions, namely Contention 2 - Building Height, Contention 5 - Character of the Local Area, Contention 6 - Amenity, and Contention 7 - Bulk and Scale all remained unresolved and were the subject of town planning evidence. These are addressed below, along with outstanding matters in Contentions 4, 8, 9, 10, 11, 12 and 13. I have addressed Contention 1 relating to FSR at [28] of this judgment.
4. I have addressed Contentions 2, 3, 4, 5, 7, 12 and 13 separately. Due the overlapping of issues within the contentions I have grouped some of the contentions, as follows; 1. Contention 6 - Amenity is grouped with Contention 8 - Visual and Acoustic Privacy and Contention 9 - View Loss. 2. Contention 10 - Earthworks is grouped with Contention 11 - Council Drainage Easement.

Building Height (Contention 2) and Clause 4.6 request to vary the height standard

1. In the Joint Planning Report the planners agree that the maximum height of the building is 10.8m and therefore exceeds the development standard of 9.5m in cl 4.4(2A) of the RLEP. A request to vary the development standard made pursuant to cl 4.6 of the RLEP (Clause 4.6 Request) was tendered as Annexure A to the Amended SEE (Ex B, Tab 4).
2. In the Joint Planning Report Mr Mead and Mr Turrisi considered the Clause 4.6 Request that formed part of the Amended DA. The Clause 4.6 Request (undated) was prepared on or before 11 March 2021, being the date of the Amended SEE to which it was attached.
3. Mr Mead referred to the Clause 4.6 Request as setting out his position for why the height exceedance, in his opinion, is acceptable. He also noted, at par 2.2 of the Joint Planning Report, the position of Council's planning staff in recommending a variation to the height standard for the residential flat building that was approved previously on the Site, quoting the reasons in that development application report as follows: "(a) The Clause 4.6 request is acceptable as the variation is isolated to 2 sections of the building, which is attributed to the significant slope of the site. (b) The majority of the building complies with the standard stepping downward with the contours of the site that will not result in adverse amenity impacts to adjoining neighbours in terms of visual bulk, overshadowing, loss of privacy or views."
4. Mr Turrisi's evidence points out the differences between the approved envelope and the proposed envelope, namely the approved scheme: 1. has a greater setback from the side boundaries, 2. generally reads to the adjoining properties as two storeys, with the exception of the most southern end which is three storeys, whereas the proposed scheme reads as three storeys and in part four storeys, and 3. has an upper most level of RL44.8 compared to the proposed upper most level of RL47.
5. In Mr Turrisi's opinion, as the proposal currently stands it is not comparable to the approved scheme and will have an unacceptable visual bulk when viewed from surrounding properties. He then suggests at par 2.13 that "… deletion of Room 4.1 would result in a similar outcome as approved and (is) something that could be supported."
6. In response to Mr Turrisi's suggestion to remove Room 4.1, the Applicant tendered plans and elevations (Ex H) showing how the removal of this room could be achieved. In the hearing the town planners were taken to the Exhibit H "Preliminary" plans showing the removal of Room 4.1 and agreed they illustrated how Mr Turrisi's proposal to remove Room 4.1 could be achieved. It was also recognised by the experts that the Exhibit H plans had 'flow-on' effects on the design and location of the adjoining fire stairs and this would affect all levels.
7. Despite expressing reservations about the narrowness of the new layout of Room 4.2, Mr Turrisi confirmed in oral evidence his support for the removal of Room 4.1. In his opinion the removal of Room 4.1 has the benefit of addressing the apparent length of the building, reducing its bulk and mass, improving the interface with adjoining development, particularly 9 Pitt Street, and results in a development having an impact on views similar to the approved scheme.
8. The Council's final draft conditions filed with the Court on 18 May 2021 (Council's Final Conditions) included Condition 2(e) requiring the removal of Room 4.1. This condition remained in contention. In its written submissions on Council's Final Conditions entitled "Applicant's Position on Council's Conditions" also filed on 18 May 2021 (Applicant's Position on Council's Conditions) the Applicant proposed that Room 4.1 should remain, but "If the Court considers that the development is unacceptable with Room 4.1, the Applicant's alternative position is that it is willing to accept this condition if consent is granted to the development."
9. Before deciding on the merits of the development and whether any measures need to be taken, for example by way of conditions of consent, I must be satisfied that the Clause 4.6 Request can be upheld. If the development fails to pass that threshold then the Court does not have power to grant consent and the various merit issues cannot be considered (refer to Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191).
10. In the interests of procedural fairness I offered the Applicant the opportunity to reconsider the Clause 4.6 Request to address the alternative development outcome arising from the removal of Room 4.1, which had emerged as part of the evidence of Mr Turrisi and after the Clause 4.6 Request was prepared. I also granted the Council the opportunity of responding to any further material from the Applicant in this regard.
11. An amended cl 4.6 request dated 28 June 2021 (Amended Clause 4.6 Request) was filed with the Court by the Applicant on 28 June 2021, and the Council's response to that document was provided on 1 July 2021. The Parties then appeared before me, at the request of the Applicant, on 6 July 2021.
12. At the mention on 6 July 2021 the Applicant requested leave, which was not opposed by the Council, to rely on the Amended Clause 4.6 Request. Leave was granted and the Amended Clause 4.6 Request became Exhibit L in the proceedings. Mr Seymour confirmed that the Applicant was not seeking to amend its application, rather it was seeking to amend its cl 4.6 request. Both parties confirmed that the Amended Clause 4.6 Request did not alter their respective positions on the Council's Conditions filed with the Court on 18 May 2021.
13. Also at the mention on 6 July 2021 the Court was reminded of Rebel MH Neutral Bay v North Sydney Council [2018] NSWLEC 191 (Rebel) and to the subsequent Court of Appeal decision in RebelMH Neutral Bay v North Sydney Council [2019] NSWCA 130 (Rebel CA). The parties agreed that consideration of the Rebel CA decision was relevant to my consideration of the adequacy of the Amended Clause 4.6 Request.
14. Rebel CA was an appeal to the Court of Appeal against the Land and Environment Court's decision of Moore J in Rebel, in which Moore J dismissed the Class 1 appeal as he was not satisfied that the cl 4.6 request to vary the height standard in the North Sydney Local Environmental Plan 2013 (NSLEP) had adequately addressed the matters required to be demonstrated by cl 4.6(3) of the NSLEP. The provisions of cl 4.6 of the NSLEP are identical to the provisions of cl 4.6 of the RLEP.
15. The Court of Appeal dismissed the appeal and found at [51] that in order for a consent authority to be satisfied that an applicant's cl 4.6 request has "adequately addressed" the matters required to be demonstrated in cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated. "It is not sufficient for the request merely to seek to demonstrate the matters in subcl (3) (which is the process required by cl 4.6(3)), the request must in fact demonstrate the matters in subcl (3) (which is the outcome required by cl 4.6(3) and (4)(a)(i))."

Consideration of cl 4.6 request

1. Pursuant to cl 4.6 of the RLEP "consent must not be granted" unless I am satisfied of four matters: 1. That the written cl 4.6 request has "adequately demonstrated" that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case" (cl 4.6(3)(a)), and 2. that the written cl 4.6 request has "adequately demonstrated" that "there are sufficient environmental planning grounds to justify contravening the development standard" (cl 4.6(3)(b)), and 3. that, irrespective of the cl 4.6 request, I am independently satisfied the development "will be in the public interest because it is consistent with the objectives of the particular development standard" (cl 4.6(4)(a)(i)), and 4. that, irrespective of the cl 4.6 request, I am independently satisfied the development "will be in the public interest because it is consistent with the objectives for development within the zone in which the development is proposed to be carried out" (cl 4.6(4)(a)(ii)).
2. The exceedance of building height varies according to the sloping ground levels. It occurs in two main locations, as illustrated in the 'height blanket' diagrams (drawing 1910-AP 713B in Ex A), as follows: 1. on Level 4 in the area occupied by Room 4.1, the lift core and stairwell, and 2. on Level 5 in the area occupied by the southern half of Room 5.1 (the Manager's room).
3. I have considered the Amended Clause 4.6 Request (Ex L) against the four tests set out in [86] above. The Amended Clause 4.6 Request relates to an alternative building envelope with the removal of Room 4.1, as suggested in evidence by Mr Turrisi. The maximum building height is to the top of the lift overrun measured from the "ground level (existing)" immediately below, and this does not change with the removal of Room 4.1. The removal of Room 4.1 does, however, reduce the building height and bulk at the southern end of the Fourth Floor. The Amended Clause 4.6 Request acknowledges that the maximum height measurement is 11 metres, 0.2m greater than the agreed height in the Joint Planning Report of 10.8m.
4. Whilst acknowledging a height of 11.0m the Amended Clause 4.6 Request goes on to suggest (at page 4) an alternative methodology for measuring building height "… from the natural ground line in accordance with the definition of height in the RLEP 2012". Adopting this methodology, according to the Amended Clause 4.6 Request, results in a height of 10.34m. In its submission in response to the Amended Clause 4.6 Request the Council objected to this alternative method of calculating building height.
5. I concur with the Council's submission and find the alternative method of measurement is not in accordance with the definition of "building height" in the RLEP, which relies on the defined term "ground level (existing)". In using the undefined "natural ground line" the Amended Clause 4.6 Request relies on the concept of extrapolating the ground levels on the periphery of the Site to avoid the inconvenient "variations to the landform created by the existing dwelling", and refers to Bettar v Council of the City of Sydney [2014] NSWLEC 1070 (Bettar) as providing an authority to do so.
6. The Amended Clause 4.6 Request has not, however, justified the applicability of Bettar under the circumstances of this case and I am not persuaded that the measurement of building height should not be based on "ground level (existing)" as defined in the RLEP. In any event whether the maximum building height is 10.34m, 10.8m or 11.0m makes no material difference to my consideration of the Amended Clause 4.6 Request.
7. The Amended Clause 4.6 Request (in Section 5) sets out the ways of establishing whether compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, as described by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The Amended Clause 4.6 Request relies on the first of the five ways in Wehbe by which the objection may be well founded, namely that the objectives of the development standard are achieved notwithstanding the non-compliance with the standard. It claims in satisfaction of cl 4.6(3)(a) that requiring strict compliance with the standard is unnecessary or reasonable because:

• the development is consistent with the standard and zone objectives, even with the proposed variation,
• there are no additional significant adverse impacts arising from the proposed non-compliance; and
• important planning goals are achieved by the approval of the variation.

1. The first of the above reasons, insofar as it refers to the objectives of the development standard, is the first of the 'tests' established by Wehbe. The objectives of the height of buildings development standard in cl 4.3(1) of the RLEP are: (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.
2. Section 8 of the Amended Clause 4.6 Request sets out the Applicant's reasons for why the development is consistent with the above objectives of the height standard. I accept, for the reasons set out in that section, that the Amended Clause 4.6 Request has "adequately demonstrated" that compliance with the development standard is "unreasonable and unnecessary in the circumstances of the case" by demonstrating how the development with a reduced envelope resulting from the removal of Room 4.1 achieves the objectives of the height standard. As the first test in Wehbe is satisfied there is no need to demonstrate that compliance is unreasonable or unnecessary in more than one of the ways outlined in Wehbe (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) Preston CJ at [22]).
3. I also find that the Amended Clause 4.6 Request has "adequately demonstrated" that "there are sufficient environmental planning grounds to justify contravening the development standard" (cl 4.6(3)(b)), for the reasons set out in Section 6 (pages 8 to 13) of the Amended Clause 4.6 Request.
4. Irrespective of the cl 4.6 request, I am independently satisfied the development "will be in the public interest because it is consistent with the objectives of the particular development standard" (cl 4.6(4)(a)(i)) for the reasons set out in Section 8 of the Amended Clause 4.6 Request and: 1. with respect to objective (a) the size and scale of the development is not inconsistent with the desired future character of the area for the reasons set out in this judgment in my consideration of Contention 5, 2. with respect to objective (b) the Site is not within a heritage conservation area, nor near a heritage item, and this objective is therefore not a material consideration in this matter, and 3. with respect to objective (c) I find that the development, as modified by the deletion of Room 4.1, would not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, privacy, overshadowing and views for the reasons set out in this judgment in my consideration of Contentions 6, 7, 8 and 9.
5. With respect to objective (c) of the height standard I also accept the evidence of planners, for the reasons set out in my response to Contentions 6 and 7, that the amenity of adjoining and neighbouring land can be sufficiently protected by the imposition of conditions and I accept the evidence of Mr Turrisi that removal of Room 4.1 (which is the alternative development contemplated in the Amended Clause 4.6 Request) would minimise the extent of the height non-compliance and reduce the visual bulk, overshadowing, view and other impacts on amenity to "something that could be supported".

• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
• To protect the amenity of residents.
• To encourage housing affordability.
• To enable small-scale business uses in existing commercial buildings.

1. For the reasons set out at page 16 of the Amended Clause 4.6 Request and based on the evidence of the town planners and my observations at the site view, the development is consistent with the relevant R3 Zone objectives in that: 1. it will provide for the housing needs of the community within a medium density residential environment; 2. the boarding house accommodation contributes to the variety of housing types; 3. it is not inconsistent with the streetscape or built form and contributes to the desired future character of the area, for the reasons set out in my response to Contention 5; 4. the amenity of residents is protected for the reasons set out in my response to Contention 6; and 5. it encourages the provision of affordable housing, consistent with the aims and provisions of the SEPP ARH.

Parking (Contention 3)

1. For the reasons set out in the Joint Traffic Report (Ex 5) I accept the recommendations of the traffic engineers that are agreed between them. These can be incorporated into the conditions of consent, as proposed in Council's Final Conditions. In summary the traffic engineers' evidence is that: 1. the provision of 11 parking spaces is acceptable subject to the recommendations of that report, namely that a private car share space be provided in lieu of five standard parking spaces; 2. the two car stackers accessed off the first aisle are to be replaced with the car share space, a space for the manager and an accessible space, all in a non-stacker arrangement; 3. a short stay service vehicle parking space can be accommodated in the first aisle, as allowed for under the Australian Standards AS2890.2; 4. the remaining eight resident spaces can be accommodated in the 8 vehicle car stacker accessed off the second aisle; and 5. the aisle accessing the car stacker needs to be sloped at a gradient of approximately 1:20 to enable lowering of the stacker to provide sufficient head clearance for vehicles accommodated therein.

Accommodation Size (Contention 4)

1. Contention 4 states: "The proposed development should be refused as the size of the boarding rooms do not comply with Clause 29(2)(f) accommodation size of SEPP (ARH) 2009. Particulars All rooms, with the exception of Rooms5.1 (sic), have included the area immediately in front of the kitchens in the minimum boarding room size requirement of 12m2 for single rooms and 16m2 for double rooms. An area immediately in front of the kitchens need (sic) to be excluded from the room size as the area forms part of the kitchen."
2. The SEPP ARH provisions with respect to the size of boarding house rooms are found at cll 29(2)(f) and 30(1)(b), as follows: 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 any of the following grounds - … (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 - (emphasis added) (ii) 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. 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)
3. In Mr Mead's opinion (at par 4.1 of the Joint Planning Report) the purpose of the room size provisions of the SEPP ARH is to create "a volume of living space" and the kitchen area to be excluded (from the area calculations) " … is only that devoted to the kitchen facilities, being the benchtop area in plan." In Mr Mead's opinion, because the space in front of the kitchen is used for multiple purposes (entrance to the room, circulation to the bathroom, volume of space that adds to the amenity of the room) he does not agree "that a strip of space 1m in dimension in front of the kitchen bench should be excluded from the room size".
4. Mr Turrisi's opinion is that the area immediately in front of the kitchen should be excluded from the calculation of the GFA of the boarding room (for the purposes of cll 29(2)(f) and 30(1)(b) of the SEPP ARH), as one "… cannot use the kitchen without standing in front of the cupboards/ appropriate appliances." It therefore forms part of the kitchen, which is one of the exclusions.
5. In submissions Mr Phillips for the Council took the Court to the cases of Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 (Anglican) and Lonergan v Ashfield Municipal Council [2011] NSWLEC 1378 (Lonergan) in support of the position taken by Mr Turrisi to exclude from the GFA of the room when calculating the accommodation size a strip of floor space in front of the kitchen benches.
6. Mr Seymour took the Court to the case of Makki Holdings Pty Limited v Hurstville City Council [2015] NSWLEC 1153 (Makki) in support of Mr Mead's position that only the area occupied by the kitchen benchtop should be excluded. Mr Phillips then referred the Court to the most recent of the cases cited, Woodhouse & Danks Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1048 (Woodhouse) in which Acting Commissioner Smithson rejected the approach taken in Makki.
7. In the earliest of the cited cases (Lonergan) Murrell C at [32] found that "in order to physically use the units where the kitchen is directly off the entranceway, 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." The Commissioner then adopted what she considered to be "a commonsense interpretation of what is secondary legislation that the entranceway be part of the kitchen in these circumstances."
8. In Makki, O'Neill C took a different view when considering whether 5 of 8 boarding rooms achieved the minimum area of 12m2 for single rooms, and whether they were acceptable on their merits. The Commissioner pointed out at [20] that the accommodation size requirement of the SEPP ARH "… is a standard that cannot be used to refuse consent. In other words, if the rooms are 12 square metres or greater, the size of the room cannot be held to be inadequate and used as a reason to dismiss the appeal. Conversely, if the rooms are less than 12 square metres, it becomes a matter of discretion on a merit basis as to whether the size of the rooms is acceptable."
9. O'Neill C (at [20] of Makki) accepted the applicant's position that all the rooms had achieved the minimum area (for single rooms) of 12m2, based on calculations which "… excluded from the gross floor area only that area of the kitchen devoted to kitchen facilities, being the benchtop area in plan." She was also "satisfied that the size and layout of each of the eight rooms … are functional for a single lodger and of adequate dimensions."
10. In Anglican O'Neill C (at [42] and [43]) came to a different conclusion taking into account Lonergan, when considering whether or not any of the rooms exceeded the 25m2 maximum size found at cl 30(1)(b) of the SEPP ARH, which has the same wording to that of cl 29(2)(f) in that the measurement of the GFA of the boarding room expressly excludes "any area used for the purposes of private kitchen or bathroom facilities".
11. In Anglican the Council's planning expert argued that some boarding rooms had a gross floor area of more than 25m2 as he "only excludes the area of the room allocated to the joinery unit of the kitchen and not to the circulation space in front of the joinery." In that expert's opinion, "the kitchen is in a corridor into the room and the primary purpose of the corridor is to provide access to the room." The town planner for the applicant, on the other hand, took an alternative approach of excluding from the calculation an area 600mm deep in front of the kitchen joinery.
12. O'Neill C preferred the alternative approach and reasoned (at [43]) ".. that an area in front of the kitchen joinery of at least 600mm deep be excluded from the calculation of the area of a boarding room because the provision excludes any area used for the purposes of private kitchen or bathroom facilities. The area in front of the kitchen joinery must be devoted to the kitchen for its proper use and cannot, for example, be occupied by furniture."
13. O'Neill C found this approach to be "… consistent with the interpretation of cl 30(1)(b) of SEPP ARH in numerous Class 1 matters of many years (see, for example, Lonergan v Ashfield Municipal Council …)".
14. In Woodhouse, Smithson AC considered the measurement of the boarding house rooms in the context of the "cannot refuse" provisions of cl 29(2)(f). In doing so she referred to Anglican, Lonergan and Makki. In Woodhouse at [188] Smithson AC agreed with Murrell C in Lonergan that a common sense approach is required on whether a 600mm deep area in front of the kitchen facilities should be included as part of the kitchen area, and therefore excluded as part of the room size.
15. Smithson AC at [189] expressed the view that such an approach "… involves a consideration of whether the 9 rooms will be of adequate size to be functionally useable and habitable by 2 lodgers having considered how the kitchen will be used." She then went on to consider the available plans and layout of the 9 rooms in contention and found at [197] that for seven of those rooms "… the area in front of the kitchen facilities provides not only access to these facilities and the bathroom but is also the main access into and out of each boarding room (ie. their entryway)."
16. At [198] Smithson AC found: "I therefore consider that it would be difficult for 1 lodger to functionally use the kitchen whilst the other may be either using the bathroom or entering or exiting the room. In that instance, with multiple use of the space, I consider it reasonable to require sole allocation of a 600mm area in front of the kitchen facilities as comprising part of the kitchen and which should therefore be excluded from the GLA (area)"
17. Based on the above cases I accept the "common sense" approach adopted in Lonergan, Anglican and Woodhouse, and find that the private kitchen facilities need to include a reasonable area to allow for its use as a kitchen independent of other uses. The kitchen therefore needs to comprise the area occupied by the joinery, which by necessity includes the bench and associated full height cupboards or equipment such as a fridge, (not merely the bench) and a 600mm deep expanse of the floor area immediately adjacent to that joinery. The 600mm dimension is a reasonable minimum, consistent with that adopted in Anglican and Woodhouse, and with draft Condition 3 in Council's Final Conditions.
18. Applying that method of measuring the room sizes, and specifically the approach taken by Smithson AC in Woodhouse where the kitchen area is within a passage that also operates as the entryway to the boarding room and provides access to the bathroom, the majority of purported 'double rooms' are less than 16m2 but greater than 12m2. Rooms of this size are deemed to provide an acceptable level of internal amenity for occupancy by one person and not two people, using the provisions of cl 29(2)(f) of the SEPP ARH.
19. Evidence of the room area calculations is found in the Exhibit A plans reference Drawing No. 1910-AP 108B "Rooms Schedule". Of further assistance are the 1:100 scale floor plans for each of the 5 levels containing boarding rooms and the 1:20 scale "Typical Boarding Room" plan and elevation (Drawing No. 1910-AP 705B) that clearly show the individual room layouts including the placement of furniture.
20. Based on those plans and adopting the "common sense approach", and the methodology of Smithson AC at [198] of Woodhouse, 17 of the purportedly double occupancy boarding rooms are less than 16m2 in area. For the reasons set out above I therefore find the rooms numbered 1.4, 1.5, 1.6, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 3.1, 3.3, 3.4, 3.5, 3.6, 4.2, 4.3, and 4.4 are less than 16m2 but more than 12m2 in area.
21. In oral evidence Mr Mead noted that if the room size fell below the 'must not refuse' standard of 16m2 then a merit assessment of the internal amenity is available to determine if the rooms are insufficient. I accept Mr Meads' evidence on this point and note this is consistent with O'Neill C in Makki at [20] and as referred to in [108] above.
22. There is a paucity of evidence, however, on whether the rooms are acceptable in terms of internal amenity. Mr Turrisi's opinion is that the rooms should achieve the minimum area of 16m2 and he wouldn't want to use the discretion if a lesser area does not result in an appropriate outcome.
23. The merit issues associated with the internal amenity of the rooms are referred to as part of Contention 6 - Amenity. Council claims in Particular a) of Contention 6 that "the proposed development provides poor amenity for the boarding house residents through non-compliant room sizes ...". Mr Mead's response at par 6.1 of the Joint Expert Report is simply that he does not agree that the room sizes are non-compliant. Mr Turrisi's response (at par 6.11) is similarly brief, merely raising a "… concern that the proposed development will provide a poor amenity outcome for the boarding room residents because the rooms are small to facilitate (sic) the number of lodgers within them as detailed in Contention 4".
24. In the absence of any substantive evidence to support the adequacy of the rooms that are less then 16m2 to accommodate two persons I find in favour of Mr Turrisi's approach. I have no basis in evidence upon which to reasonably exercise the available discretion to allow, on merit, double occupancy of the rooms that are less than 16m2 in area.
25. I have adopted the position taken by the planners that the occupancy of these rooms be the subject of a condition of consent that limits their occupancy to no more than one person. This finding, along with the removal of Room 4.1, results in the development providing 8 double rooms (excluding the manager's room) and 17 single rooms, and a reduction in the maximum number of boarders that may reside within the development, from 55 to 33. This figure is relevant to the consideration of the indoor communal living space, as addressed at [155] of this judgment.

Character of Local Area (Contention 5)

1. The Council contends (at Contention 5) that the development should be refused "… as it is not consistent with the medium density residential character of the locality and is not consistent with the objectives of the R3 Medium Density Residential Zone". The latter aspect of this contention is addressed in my response to Contention 2, in which I found that the development is consistent with the relevant objectives of the R3 Zone.
2. Pursuant to the provisions of cl 30A of the SEPP ARH consent must not be granted unless I have taken into consideration whether the design of the development is compatible with the character of the local area.
3. In the Amended SOFC particulars to Contention 5 the Council claims the development should be refused as it is not consistent with the maximum height and FSR development standards in the RLEP. Those claims have been addressed elsewhere in this judgment and are not sustained.
4. The particulars to Contention 5 make numerous references to the controls in Section C2 of the DCP. Both town planners acknowledge that the Section C2 controls for the design of residential buildings permitted in the R3 Zone are useful in helping to establish the desired future character of the area and helping inform the design of the proposal.
5. The town planners disagree on the identification of "the local area". Mr Mead's "local area" is outlined in red in the aerial photograph at page 22 of the Joint Planning Report and supported by various photographs at Annexure D of that report. It includes the properties in Clyde Street around the turning circle of the cul-de-sac, the properties to the west between the Site and Pitt Street, and the upslope properties to the north and north-east on Alison Road, between Pitt Street and the pedestrian link connecting Alison Road and Clyde Street. Under the provisions of the RLEP all of this land is within the R3 Zone, although the land to the north and west of the Site has a greater height limit (of 12m) and FSR limit (of 0.9:1) than that of the Site and the Clyde Street properties.
6. Mr Turrisi on the other hand has identified a smaller "local area", consistent with that identified in Particular b) of Contention 5 which has been "taken to include Clyde Street and the surrounding properties in Pitt Street to the west where the Site has a visual relationship with those properties, is predominantly single and two storey dwellings, and two storey town house developments that are setback from common boundaries."
7. At par 5.29 of the Joint Planning Report Mr Turrisi states: "Other than developments to the north that is (sic) of a greater scale, development on this site and in Clyde Street are of a lower scale. Clyde Street is within a distinctively different precinct and sits within a valley given the topography of the area… Although the land to the west has greater height and FSR controls their lot configuration and the topography means it has a direct connection visually to development in Clyde Street. Development to the north is greatly elevated above this site and in my view, separates itself from this locality."
8. Mr Mead does not agree that the properties to the north should be excluded from the local area when considering its character. At par 5.3 of the Joint Planning Report he states: "In my opinion, there properties could not possibly be excluded from character assessment given that development on those sites is immediately visible from the subject site and some of those properties in fact share common boundaries. That would not be a typical approach to character assessment."
9. Having considered the evidence of the planners and my own observations at the site view I prefer and accept the evidence of Mr Mead that the "local area" in this instance includes the land adjoining to the north and north east fronting Alison Road, as identified by Mr Mead in the photograph at page 22 of the Joint Planning Report.
10. The land to the north and north-east of the Site, that Mr Mead includes and Mr Turrisi does not, is either contiguous with the Site or forms part of the Site's visual backdrop or catchment, and completes the sloping curved 'amphitheatre' from Alison Road and Pitt Street down to the valley below at Clyde Street. This strong topographical feature and the landscape and buildings therein all have a "direct connection visually", to use Mr Turrisi's words. To selectively eliminate the higher ground and taller buildings on Alison Road is not supported by viewing the locality from the Site or from Clyde Street. The fact that the Alison Road development is clearly much higher than the development in Clyde Street does not exclude it from the locality, but rather helps define it.
11. Mr Mead describes the variety of development within this local area as a mix of low and medium density development of significantly varied scales. I concur with Mr Mead's assessment at par 5.10 of the Joint Planning Report that "… there is no distinct pattern of footprints, heights, setbacks, architecture of (sic) landscape treatments in the locality". It is an eclectic mix, and this helps define the existing character. The proposed development which is largely obscured from the street or other publicly accessible views is not out of character in this setting and context.
12. With respect to the desired future character I agree with Mr Turrisi (at par 5.32 of the Joint Planning Report) that planning controls assist in determining what would be the desired future character of a locality. I also agree with his oral evidence that any desired future character consideration based on planning controls necessarily includes the DCP controls and these should be read along with the provisions of the SEPP ARH.
13. In the Joint Planning Report Mr Mead undertook a detailed response to each of the DCP controls referred to in the Particulars to Contention 5, and drew comparisons with the controls for residential flat buildings and with the previously approved development on the site. Mr Mead's evidence was that the proposed building setbacks are generally aligned with the DCP controls. The development, as amended, was in his opinion largely compliant with the envelope contemplated by those controls for multi-dwelling housing and is not dissimilar to the residential flat building previously approved on the Site.
14. Mr Turrisi's evidence is that "the critical setbacks are to the side boundaries" and (at par 5.32 of the Joint Planning Report) that ".. the Applicant's position that the proposal complies with Council's DCP is based on the minimum numerical controls." He goes on to say: "The controls also states that additional side setbacks above the minimum should be incorporated to provide articulation to the building facades, to provide opportunities for landscaping, to provide building separation and to improve visual amenity and outlook from the development and adjoining residences as well as addressing issues of privacy and solar access." This is a direct reference to the DCP's Section C2 Subsection 3.4 Setbacks, and the 3.4.2 Controls for side setbacks.
15. The 3.4.2 side setback Controls, however, relate to the specific development types of residential flat buildings and multi-dwelling housing, and for the reasons at [64] of this judgment, are therefore not applicable to or of little assistance in the detailed assessment of boarding houses. Nevertheless, as Mr Turrisi notes, the proposal does generally comply with the minimum setback standards, and I accept his evidence that with the deletion of Room 4.1 the building envelope is not dissimilar to that of the previously approved residential flat building. Accordingly, I find the envelope is within the realm of what might be expected, under the DCP controls, for this Site. The other merit issues Mr Turrisi refers to at par 5.32 of the Joint Planning Report are addressed elsewhere in this judgment or were not in contention.
16. I am also mindful of the provisions of s 3.42 (1) of the EPA Act and the principal purpose of the DCP to provide guidance on giving effect to the aims of any environmental planning instrument that applies to the development, including, in this case, the RLEP and the SEPP ARH, to facilitate development under these instruments, and to achieve the objectives of the zone. I have already addressed the objectives on the zone, and satisfaction of the aims of the RLEP and SEPP ARH is not in contention.
17. I find, therefore, that the proposed development is not inconsistent with either the existing character of the local area nor its desired future character, and there is no substantive basis upon which to refuse the application under the provisions of cl 30A of the SEPP ARH.

Bulk and Scale (Contention 7)

1. With respect to the building's bulk and scale the Particulars for Contention 7 focus on two aspects: 1. that the areas for garbage rooms, plant and storage areas all contribute to "the extensive excavation", and 2. that the development is inconsistent with the building footprint and envelope of the approved residential flat building, which "generally reads as 2 storeys while the proposal reads as part 3, part 4 storeys".
2. The planners agree at pars 7.1 and 7.2 of the Joint Planning Report that: 1. the proposal complies with the FSR control and that is one aspect that is a primary determinant of density and scale (emphasis added); and 2. as far as bulk and scale pertains to the character of the area this is dealt with in considering building height (Contention 2) and local character (Contention 5).
3. I accept Mr Mead's view that it is logical and beneficial to place service areas such as waste storage and plant below ground in order to reduce building bulk and minimise adverse visual impacts. I also note that the amount of excavation per se was not a matter of contention, although certain engineering issues associated with retaining the excavated areas is addressed in relation to Contention 10 - Earthworks.
4. Having considered the planners' evidence with respect to bulk and scale, density (Contention 1), the character of the local area (Contention 5), the impacts of the height and bulk of the building, and my own consideration of the Amended Clause 4.6 Request I find, subject to a condition requiring the removal of Room 4.1, the development is acceptable in terms of its bulk and scale.

Amenity (Contention 6), Visual and Acoustic Privacy (Contention 8) and View Loss (Contention 9)

1. Contention 6 dealing with amenity considerations falls into two parts: the internal amenity for future boarding house residents and the amenity impacts to surrounding neighbours. Visual and acoustic privacy are amenity considerations for both groups, and view loss can impact on the amenity of neighbouring residents.

Amenity for future residents of the boarding house

1. Particular a) to Contention 6 claims the development provides poor amenity for the boarding house residents "…through non-compliant room sizes based on lodger numbers". This is addressed above in my response to Contention 4.
2. Particular c) to Contention 6 raises concerns about solar access to the boarding rooms and how the development satisfies the Part 4 Control 2.1 of the DCP which requires the rooms to be orientated to receive the maximum amount of solar access. Mr Turrisi provides no evidence in the Joint Planning Report on solar access to the boarding rooms, nor in oral evidence, and this was not a matter of contention in the hearing. Mr Mead's uncontested position (in the Joint Planning Report) is that: 1. there is no applicable quantitative control for solar access for boarding house rooms in the SEPP ARH or the DCP, unlike for example that found for residential flat buildings in the Apartment Design Guide (ADG) to SEPP 65, which does not apply; and 2. the orientation of the building and the proposed rooms is a product of the site orientation and shape and "because of the north-south orientation, the majority of rooms will enjoy either morning or afternoon direct sunlight, other than where limited as a result of development on adjoining properties.
3. Based on this evidence, the architectural floor plans (in Ex A) and the shadow diagrams (in Ex A) I agree with Mr Mead. I find that under the circumstances of the Site's orientation, shape, topography and the shadows cast by adjacent development, the proposed design has orientated the rooms such that the available solar access is maximised.
4. The amenity of the common rooms and communal open space was also in contention, in particular the amount of solar access received. The SEPP ARH requires the consent authority to be satisfied that boarding houses containing five or more rooms provide at least one communal living room (cl 30(1)(a)) and consent must not be refused on the basis of solar access if one of those rooms receives a minimum of three hours direct sunlight between 9:00am and 3:00pm in mid winter (cl 29(2)(c)). That does not mean, however, that development which fails to achieve those three hours of sunlight cannot be approved. The SEPP ARH does not specify a minimum area for the common living room/s.
5. Section C4 Control 2.3 of the DCP is a relevant consideration. It provides a minimum indoor communal living area for boarding house development of either 20m2 or 1.2m2 per resident, whichever is greater, with a minimum dimension of 3m, and that it be oriented to maximise solar access and have a northerly aspect where possible.
6. The development provides two communal living areas: the 20m2 "indoor games room" on Level 1 and the 23m2 "communal living area" on Level 3. The Level 1 room receives no sunlight as it is located below ground level and has no windows. The Level 3 room is located at the northern end of the building with direct access to an outdoor area of private open space. Mr Mead's evidence in the Joint Planning Report (at par 6.7) is that the Level 3 common room achieves 3 hours of solar access, which he says is supported by the further solar analysis drawings attached as Annexure G of that report. Mr Turrisi does not dispute this, but rather claims the size of the space is deficient based on the DCP's provisions, as he excludes the windowless room on Level 1 because it does not provide, in his opinion, an acceptable level of amenity.
7. Mr Mead on the other hand contends that the proposal meets the relevant objectives of the DCP which is "to ensure boarding rooms and communal spaces are appropriately sized, located and equipped with suitable facilities." In his opinion the two communal rooms "each have a different function and will be equipped with different facilities."
8. Applying the Section C4 provisions referred to, the proposed development would generate a need for 39.6m2 (say 40m2) of indoor communal living space at 1.2m2 per boarder for the reduced number of 33 boarders (as referred to in [125] of this judgment), excluding the manager. The proposed development achieves this quantum of space over the two rooms. I find that the two rooms together meet the DCP objectives referred to and will have an acceptable amenity for residents. They are acceptable based on the total amount of space provided for the 33 boarders, their dual functions, the orientation and amount of solar access to the Level 3 room and its direct access to the outdoor open space.

Amenity for residents of the adjoining properties

1. Contention 8 relating to visual and acoustic privacy focuses on the impacts of the proposed development on the privacy of neighbouring residents. The measures proposed to mitigate those impacts, such as the screening of windows, also serve to protect the privacy of the boarding house residents. The privacy impacts differ for the east and west sides of the building.
2. With respect to acoustic privacy the planning experts agree (at page 39 of the Joint Planning Report) "… that the lobby / corridors on the westerns side of the building are enclosed and therefore will not result in an acoustic issue that requires further consideration. An appropriate condition should be imposed to ensure compliance as the plans are not clear as to whether they are openable."
3. On the western side the visual privacy concerns relate to overlooking from the access corridors to the adjoining dwellings at 5, 9 and 11 Pitt Street, including balconies and private open space areas.
4. The visual privacy treatments proposed by Mr Mead involve the addition of fixed vertical louvres as identified in the Exhibit J "Façade Details" elevation and section (drawing reference 1910-AP 501B). Mr Turrisi did not agree that the louvre solution proposed by Mr Mead would prevent viewing into the rear of the Pitt Street properties. He noted that if obscure glazing of the windows was adopted the screens would not be needed for privacy reasons but were nevertheless important to mitigate light spillage, which was another issue raised by residents. In closing submissions Mr Seymour noted there were ways to fix the privacy concerns with obscure glazing on the western corridors and louvres for light spillage.
5. I agree with the evidence of the town planners that the windows of the western corridors overlooking the rear of the affected Pitt Street properties need to be fixed (non-openable) for noise and acoustic privacy reasons and treated to prevent overlooking for visual privacy reasons. I accept and prefer the evidence of Mr Turrisi that the vertical louvres proposed by Mr Mead alone will not prevent overlooking and agree that obscure glazing and a louvre system will protect both privacy and light spillage respectively. This is covered by Condition 2 (f) of the Council's Final Conditions, which was not contested by the Applicant.
6. In the Council's Final Conditions, Condition 2(i) states: "The balconies off boarding room numbers 3.1 and 3.2 are to be deleted. The balcony to room number 4.1 is also removed by the imposition of condition 2(c). The doors will be replaced with windows but be of a design that allows access to the terrace to maintain the landscaping."
7. The Applicant did not agree with this condition on the basis there was no evidence relating to the balconies of Rooms 3.1 and 3.2. The Council's position was that Condition 2(i) was necessary to address "... the concerns as to visual and acoustic privacy for the neighbouring residents as per the residents' evidence."
8. Visual privacy concerns associated with the use of "balconies" off the south facing rooms on the Third and Fourth Floors were raised by residents in submissions (Ex 1 Folio 35-36 and Folio 219). The purported "balconies" are located on the south side of Rooms 3.1, 3.2 and Room 4.1, on the vegetated 'green roof' of the level below. The architectural plans suggest the "balconies" are accessible from those rooms through sliding glass doors.
9. The "balconies" or terraces off these three rooms are assumed to be the area shown square hatched on the architectural and landscape plans. Hatching is commonly used to denote hard paving (although there is no key to interpret the hatching on the plans). The hatched areas measure approximately 2m by 2m and are defined on their eastern, southern and western edges by the planted area of the 'green roofs'. The architectural plans (drawing references 1910-AP 150B and 1910-AP 160B) note "REFER TO LANDSCAPE PLANS" for details of the landscaped roofs.
10. There is no evidence confirming that the hatched areas are "balconies" (or roof terraces) for the use of residents. Neither of the town planning experts raised this possibility in their written or oral evidence. The documentary evidence before me has led me to conclude that the hatched areas are indeed not intended to be "balconies", for the following reasons: 1. The Original SEE (Ex B, Tab 3) includes at Annexure D a "Randwick DCP 2013 Compliance Table" (DCP Compliance Table). The DCP Compliance Table (page 66 of the Original SEE) identifies the Section C4 Sub-section 2.1 Control iii) that says "Where provided, private open space (for boarding rooms) in the form of a balcony or terrace must have a minimum usable area of 4 square metres." The DCP Compliance Table then notes, with respect to this Control, "Not (sic) private open space provided for boarding rooms. Communal open space provided at rear." It then notes this Control as not applicable in the final column of the table. 2. The later Amended SEE confirms (at section 5.2.3) that "The amended architectural plans do not significantly alter the assessment or conclusions contained in the original SEE..." 3. The Landscape Plans (part of Exhibit A) include a 1:20 scale section of the green roofs showing a 300mm deep layer of soil contained in a single planter of slightly higher than 350mm above the roof slab (refer Landscape Drawing ref LS07 "Mass Planting on Slab"). The Landscape Plans, however, show no change of level between the 2m x 2m hatched "balconies" and the planted portion of the green roofs, which is approximately 350mm above the floor level of the rooms. The evidence therefore suggests the sliding glass "doors" are sliding windows with a low sill height slightly higher than that of the planter. 4. There is no fencing shown on any of the architectural or landscape plans, sections or elevations on the roof top, including for the perimeter of the hatched "balcony" area. This renders the roof top (including the hatched areas) non-trafficable for safety reasons. 1. The Amended Clause 4.6 Request makes no reference to balconies, or fencing to balconies, on the roof top, which would have additional privacy and visual impacts. The Amended Clause 4.6 Request refers only to "… the parapet roofing accommodating the green roof," and relies on this to support the 'visual aesthetic' of the building.
11. Based on the residents' submissions at Exhibit 1 Folio 35-36 and Folio 219, and having viewed the Site from those residents' premises I agree that any "balconies" or use of the landscaped roof tops by residents of the proposed development would have unacceptable privacy impacts upon neighbouring properties, based on the proximity of the "balconies", their elevation, the lack of screening and the direct line of site to the affected areas on adjoining properties. The Council's proposed Condition 2(i) removes any doubt about the use of and access to the "balconies". For the above reasons I therefore find in favour of retaining draft Condition 2(i).
12. On the eastern side of the building the main visual privacy concern relates to overlooking from the boarding rooms to the exposed windows and private open space areas of the town houses at 4-6 Clyde Street. The sensitive locations, which were pointed out to the Court at the site view, are the rear courtyard and north-western elevation of Unit 5 (Elevation 1 on the survey plans at Annexure E of the Joint Planning Report) and the rear courtyard and northern elevation of Unit 1 (Elevation 3 of the survey plans). These survey plans were also tendered as part of Exhibit A.
13. In the Joint Planning Report Mr Mead states at par 8.1: "All windows facing east are treated with privacy louvres. These are detailed on Sheet 1910-AP 705B". The sheet referred to is the 1:20 scale drawing entitled "Typical Boarding Room", and not to be confused with the shadow diagrams with the same drawing reference number.
14. The "Typical Boarding Room" drawing includes a section through the 'typical room' that shows for the windows "adjustable glass louvres" with horizontal "adjustable metal louvres" fixed on the outside for the full height of the windows (emphasis added). The eastern elevation of the building, as depicted in drawing reference 1910-AP 301 B, does not, however, show any adjustable metal louvres on these windows. The two drawings appear to be at odds with one another and this creates a level of uncertainty.
15. The Joint Planning Report refers to a suggestion made by Mr Mead in the joint conferencing process for an alternative treatment of these windows. He describes an additional detail involving "… wider fixed horizontal louvres in the lower half of the windows to allow views sideways but not down into the neighbouring gardens" (emphasis added). Mr Mead maintained the amended louvre design would address the potential for overlooking and is acceptable.
16. According to Mr Turrisi (at par 8.4 of the Joint Planning Report) "… although this would prevent someone from looking down, it doesn't assist in a direct view" and the private open space areas of the eastern property (4-6 Clyde Street) would remain affected.
17. During the hearing the Applicant tendered as Exhibit J "Preliminary" drawings of Façade Details including two options for the metal privacy louvres on the eastern side of the building (Exhibit J, drawing reference 1910-AP 500 C). This 1:20 scale drawing contains a limited elevation showing the façade of two rooms, one above the other. It depicts half height (lower half of the windows) metal privacy louvres fixed to the outside of the glass line. On the upper room the drawing shows and notes a "fixed wide horizontal metal privacy louvres to reduce downward overlooking" and on the lower room, shows and notes a "fixed vertical angled metal privacy louvres to prevent direct overlooking" (emphasis added).
18. In oral evidence Mr Mead suggested that the vertical louvres would be appropriate on the Third Floor, and the horizontal louvres "on the upper levels", although they could be varied according to the particular privacy needs, with a suitably worded condition of consent, that could be expressed as an objective and be subject to further Council approval. Mr Turrisi on the other hand supported the draft condition as proposed by Council.
19. In the Council's Final Conditions, at draft Condition 2(g), the Council proposes a further alternative for managing the privacy impacts associated with the east facing rooms. The privacy measure in Condition 2 (g) is for the boarding room windows on the eastern elevation to be fixed up to 1.6m in height (above the finished floor level) and be provided with translucent, obscured, frosted or sandblasted glazing below this height. There is no reference to external metal louvres, presumably as these would not be necessary with the use of the fixed obscure glazing up to 1.6m in height. This draft condition was not contested by the Applicant.
20. I agree with the evidence of the town planners and the residents that the eastern windows of the boarding rooms, at least insofar as they overlook the sensitive windows and courtyards of Units 1 and 5 at 4-6 Clyde Street, will have an unacceptable impact on the privacy and amenity of those neighbouring properties. I also accept the evidence of the planners that this impact can be mitigated by treating those windows for privacy. Having considered the various treatment options, I find in favour of the solution proffered in the Council's Final Conditions, and supported by Mr Turrisi. Condition 2 (g) is acceptable as it is certain, will prevent both downward and direct overlooking, will allow the top portion of the glass louvres to be openable for ventilation, will allow an outlook to sky and will not impede the available solar access to those windows.
21. Contention 9 relating to view loss focuses on the impacts of the development on the views from the Pitt Street properties adjoining to the west, particularly from their more elevated upper levels. The Court had the benefit of viewing the Site from the affected dwellings at 5, 9 and 11 Pitt Street. Both town planners were satisfied that the amended envelope and the removal of Room 4.1 would result in the view impact being consistent with that of the existing approved development and was acceptable. On the basis of that evidence and my own observations at the site view I find the view impacts, with the removal of Room 4.1, to be acceptable.

Earthworks (Contention 10) and Council Drainage Easement (Contention 11)

1. Council contended in Contention 10 of the Amended SOFC that the development should be refused because of a failure to demonstrate that earthworks associated with the development will not have a detrimental impact on the Site and adjoining properties. The matters for consideration in relation to earthworks are found at cl 6.2 of the RLEP. Council submitted that the Preliminary Geotech Report (Ex B, Tab 5) did not adequately address "… issues associated with the eastern wall being built to the boundary".
2. The "Preliminary Geotechnical Investigation" report by Martens Consulting Engineers dated March 2021 (Geotech Report) (Ex B, Tab 5) includes at section 4.1 several site-specific recommendations. Recommendation 1 relating to "excavation support" is relevant to the issue of excavation near the boundaries of adjoining properties. It notes that "… a permanent anchorage system is likely to be required to provide the required lateral support during construction." It goes on to note that "Anchor installation beyond the property boundaries will be subject to approval by owners of adjoining properties."
3. Mr Seymour for the Applicant pointed out in opening submissions that if the required approval of the neighbour is not obtained the Geotech Report includes as part of Recommendation 1 a list of three other temporary support options that are available, and this needs to be picked up in any conditions of consent.
4. Draft Condition 16 in Council's Final Conditions addresses this issue to some extent in that it includes a requirement for the Applicant to obtain the consent of the owners of adjoining lands if it is proposed to use ground or rock anchors that would incur beyond the Site boundary. The draft Condition 16 does not, however, pick up the site-specific recommendations of the Geotech Report.
5. As this is a valid concern of a number of the resident objectors, and was not the subject of expert engineering evidence in the proceedings (beyond that set out in the Geotech Report) I find it prudent under the circumstances that the draft Condition 16 be amended to incorporate the recommendations of the Geotech Report.
6. Council contended in Contention 11 of the Amended SOFC that "The development application should be refused because the proposed development will have unacceptable impacts on the existing Council Stormwater Easement and pipeline within the site by severely limiting access to the easement for future maintenance and repair."
7. There is a 2.44m wide drainage easement in favour of Council that traverses the southwest corner of the Site. It contains a 1.2m diameter pipe owned and maintained by Council. The basement of the proposed development is located outside the easement, although development works exterior to the building and a support column are proposed at ground level, and the First and Second floors of the building encroach over the easement. Council contended "This would result in large impacts on Council pipe and easement for future maintenance and repair". Council was particularly concerned that the overhead clearance was likely to be less than 3m for a significant portion of the encroachment, restricting access to the easement and pipe for future maintenance and repair.
8. Contention 13 relates to insufficient, inadequate or inconsistent information. Particular (a) contends there is insufficient information on the height clearance between the underside of First Floor and the easement.
9. During the hearing the Applicant tabled three plans, which together became Exhibit D, providing additional information relevant to the works above and in the vicinity of the stormwater easement. The first is a plan prepared by McDonald Surveying entitled "Plan showing location of easement & pipe 8 Clyde Street Randwick" dated 11/05/21. The remaining two plans were both prepared by the architects SHED, dated 20/04/21; drawing reference 1910-AP 750A entitled "Stormwater Easement Plan" (Stormwater Plan) and 1901-AP 751A entitled "Section through stormwater easement" (Stormwater Section).
10. The Stormwater Plan shows the line of the easement, the extent of the 1200mm diameter pipe which is shown centred within the easement, the entry to the building, the line of the previously approved residential flat building, the line of the proposed building over the easement and a hatched area that is unlabelled. It also shows the column supporting the building over the easement as relocated in a westerly direction so that it now is located outside the easement by approximately 200mm.
11. The Stormwater Section runs through the centre line of the pipe. It shows the location and RL of the First Floor above the easement, the RL of the Finished Floor Level (FFL) of the Ground Floor, the southern and western boundary fences, the 1200mm diameter pipe immediately under the building and the finished ground level above the pipe.
12. The Stormwater Section also shows a hatched area to be excavated between the finished ground level and the existing ground level labelled "Ground battered to increase clearance". The area to be excavated extends approximately two thirds under the building along the easement to allow height clearance, post excavation, of 3 metres. The sloping batter extends upwards from the flat excavated area under the building into the western side boundary setback, with the top of the batter located approximately 300mm from the western boundary fence and the Jacaranda tree (Tree 19) located on 9 Pitt Street immediately adjacent to the boundary.
13. Evidence relevant to the stormwater easement contention was provided orally in the hearing by Mr Wheatley (for the Applicant) who described himself as "not an engineer as such" who "had no engineering certificate", and Mr Flanigan, Council's Development Engineer who is a qualified engineer. The witnesses had considered the available information including the Exhibit D plans, the draft Council Conditions (Ex 3) and the Applicant's response to the draft Council Conditions (Ex K) and conferred prior to giving their evidence. They had reached an agreement that the contention had been substantially resolved based on some foreshadowed amendments or additions to the draft conditions. Council's Final conditions were later provided to the Court 18 May 2021, and the Applicant's written response (Applicant's Position on Council's Conditions) was also provided on that date.
14. Draft Condition 27 in Council's Final Conditions specifies that the site stormwater drainage plans have not been approved as part of the development consent. It instead requires the preparation of engineering calculations and plans by a suitably qualified Hydraulic Engineer prior to the issuing of a construction certificate. This was not contested by the Applicant.
15. The main conditions in the Council's Final Conditions dealing with the drainage easement are draft Conditions 23, 24, 25 and 26. Draft Condition 23 requires no encroachment of the basement or ground floor structures into the easement and a height clearance of a least 3m above the finished ground level. Draft Condition 24 relates to footings located adjacent to the easement. Draft Conditions 23 and 24 were not contested by the Applicant.
16. Draft Condition 25 requires the Applicant to construct a new drainage pit within the easement and replace the 1200mm pipe for most of its length, including past the overhang of the building. Draft Condition 26 requires the Council to approve the "for construction plans" for the upgrade of the pipe and the pits within the easement, and for all associated costs to be met by the Applicant. Draft Conditions 25 and 26 were opposed by the Applicant.
17. Draft Condition 28 sets out further requirements for the site stormwater drainage system and allows for stormwater discharge by either one of three options. One of those options, at Condition 28(b)(ii), allows for discharge into Council's underground drainage system located within the easement. Condition 28(b)(ii) was opposed by the Applicant.
18. Draft Conditions 28(c), 28(g) and 28(i) address requirements in circumstances where stormwater discharge is to either the Council's underground drainage system or to the street gutter. Draft Conditions 28(b)(ii), 28(c), 28(g) and 28(i) were also opposed by the Applicant.
19. Mr Wheatley said the development need not use the existing pipe as it could have a separate stormwater connection to the street via the driveway. I note that such a solution, conceptually, is illustrated on the Stormwater Drainage Plan that forms part of the Amended Plans (Ex A). This plan, however, is not approved by virtue of the unopposed Draft Condition 27, and I have no substantive engineering evidence that the 'driveway option' is achievable or acceptable to Council in terms of its impacts.
20. Mr Flanigan said that currently there is no restriction on access to the pipeline whereas the proposed development encroaches into or over the easement and changes that access, and that Council's standard requirement for an upgrade of the pipe is therefore appropriate.
21. In the Applicant's Position on Council's Conditions, the Applicant objected to draft Conditions 25, 26, 28(b)(ii), 28(c), 28(g) and 28(i) on the basis that there was no nexus.
22. The Council's submission is that there is a nexus and the contested draft conditions are necessary because future access for machinery will be highly restricted as a direct result of the proposed development (created by the overhang and the column). Council also refers to sub-section 3.4, Control iii of Section B8 of the DCP which Council says "… generally prohibits development over Council easements. When it is permitted, the DCP specifically requests that the pipe be upgraded, so this requirement (in draft Condition 25) is completely consistent with the DCP".
23. Section B8 of the DCP is one of the "General Controls" that applies to all development applications in the Randwick Local Government Area, including the subject DA. Section B8 sub-section 3.4, relating to stormwater infrastructure, says (underlining added for emphasis): "Objectives To ensure stormwater infrastructure is designed and constructed to an acceptable standard. To prevent adverse impacts of development on the performance, serviceability and integrity of publicly owned stormwater systems and inter allotment drainage lines. To ensure that private stormwater systems discharge to the public stormwater system in an acceptable manner. Controls Design and install stormwater infrastructure in accordance with Randwick City Council's Private Stormwater Code. New structures may not be constructed above public stormwater infrastructure or inter-allotment drainage. Redevelopment of existing structures above public stormwater infrastructure or inter allotment drainage shall occur only where: relocation of the stormwater conduit or structure is not feasible, the conduit is reconstructed to meet relevant standards, and the conduit is upgraded to ensure structural soundness and serviceability for the life of the structure and the life of the conduit;"
24. The Council's Memorandum from the Development Engineer to the Manager, Development Assessments, dated 6 August 2020 (Ex 1, Folios 409-410) refers to Council's approach to building over the easement in the DA for the residential flat building that was approved for this site (DA/553/2017), as follows: "The previous application (DA/553/2017) proposed a similar but smaller overhang which was permitted by the Development Engineering Coordinator on the basis a ground clearance of over 3m was available underneath the overhang section in order to permit access for maintenance and repair of the Council pipes. It was also conditioned in the consent that the pipe be upgraded as part of the works."
25. Based on the evidence before me, in circumstances where the final stormwater drainage design is not agreed to and where there is no justification for removal of conditions that are consistent with the Council's DCP provisions and consistent with the approach taken for the previous approval of the residential flat building on the Site, I find that draft Conditions 25, 26, 28(b)(ii), 28(c), 28(g) and 28(i) as proposed by Council are to be retained.

Insufficient Information (Contention 13)

1. There are several matters referred to in Contention 13 that are not specifically addressed above but are addressed in Council's Final Conditions, including those relating to the mailboxes, waste management, the collection of bins, amendments to the Plan of Management, and mitigation of noise impacts.
2. Noise was of particular concern to local residents who expressed their concerns about noise transmission from the Site and its reverberation within the "amphitheatre". Noise was not a specific Contention in the proceedings.
3. The expert noise evidence before the Court is found in the "Noise Impact Assessment" prepared by Pulse White Noise Acoustics dated 11 May 2021 (Noise Report) (Ex G). The Noise Report examines the impacts of, and recommends mitigation measures for, potential noise impacts associated with the operation of mechanical services, the car stackers and the common area on the Third Floor.
4. The Council's proposed noise-related conditions include Conditions 2(b) and 3 which picks up the recommendations in the Noise Report, Condition 41 which requires the preparation of a Construction Noise and Vibration Management Plan and operational conditions (including Conditions 102 and 105) address noise related matters associated with the on-going use of the premises. These draft conditions were not contested and can be adopted as proposed. Other conditions requiring the fixing of windows to the western corridors also address noise concerns.

Conclusions

1. For the reasons set out in this judgment I am satisfied that the development as amended is acceptable, subject to conditions. The DA, however, must first be amended as proposed by the Applicant and agreed to by the Court, before the Court can issue a development consent consistent with the findings in this judgment. The Court has power to give the agreement of the consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to the Applicant's amendment by virtue of s 39(2) of the LEC Act. The function of the consent authority picked up by s 39(2) is only that of giving agreement under cl 55(1) of the EPA Regulation to the applicant's amendment, not to effecting the amendment of the application.
2. Clause 55(1) of the EPA Regulation was amended in 2020 to require any amendment of a DA to be uploaded to the NSW planning portal before it becomes effective. Following the lapsing of the transitional provisions in cl 296 of the EPA Regulation on 1 July 2021, the consent authority must now comply with the EPA Regulation. The amendment does not take effect until it is uploaded on the NSW planning portal and then filed by the Applicant with the Court. The Court understands in this case that only the Randwick City Council has access to the NSW planning portal for uploading purposes.

Orders

1. The Court orders that: 1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of the Randwick City Council as the relevant consent authority under cl 55(1) of the EPA Regulation, agrees to the Applicant amending the development application DA/222/2020 filed with the Court on 16 July 2020 as set out in the following documents: 1. Architectural drawings (set of 39 drawings, including shadow diagrams) prepared by SHED, Revision B dated 23 February 2021 (part of Ex A). 2. Landscape plans prepared by Melissa Wilson Landscape Architects, drawing references LS01 - LS04 and LS06 to LS08 Revision E dated 9 March 2021 (part of Ex A) and LS05 Revision F dated 4 May 2021 (part of Ex J). 3. Stormwater Drainage Plan prepared by M+G Consulting Engineers Revision 3 dated 9 March 2021. 4. Survey plan and elevations (set of three drawings) prepared by Survplan, dated 25 January 2021. 5. Tree Protection Plans (set of two drawings) prepared by Tree Wise Men, dated 21 October 2020. 6. Amended Statement of Environmental Effects (Amended SEE) prepared by Planning Ingenuity, dated 11 March 2021 (Ex B, Tab 3), which includes, at Annexure A, a clause 4.6 variation request to amend the building height development standard. 7. Preliminary Geotechnical Investigation prepared by Martens Consulting Engineers dated March 2021 (Ex B, Tab 4). 8. Traffic Impact Assessment prepared by TRAFFIX dated March 2021 (Ex B, Tab 9). 9. Accessibility Review Report prepared by ABE Consulting dated 10 March 2021 (Ex B, Tab 10). 10. Boarding House Noise Impact Assessment prepared by Pulse White Noise Acoustics dated 5 March 2021 (Ex B, Tab 11). 11. Arboricultural Comment Regarding Impact of Revised Proposed Development prepared by Tree Wise Men dated 11 March 2021 (Ex B, Tab 12). 12. Revised BASIX Certificate number 1087816M_02 dated 08 March 2021 (Ex B, Tab 15). 13. Boarding House Noise Impact Assessment prepared by Pulse White Noise Acoustics dated 11 May 2021 (Ex G). 14. Plan Showing Location of Easement & Pipe, prepared by McDonald Surveying Revision A dated 11 May 2021 (part of Ex D). 15. Stormwater Easement Drawing No 1910- AP 750A and Section Through Stormwater Easement Drawing No 1910- AP 751A prepared by SHED, Issue A dated 20 April 2021 (part of Ex D). 16. The Amended Clause 4.6 Variation Request dated 28 June 2021 filed with the Court by the Applicant on 28 June 2021 (Ex L). 1. The respondent, Randwick City Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the Applicant immediately after it has been lodged. 2. The Applicant is to file a copy of the amended development application within 7 days after the respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal. 3. The respondent is to update its draft Conditions of Consent as filed with the Court on 18 May 2021 amended to reflect the findings in this judgment and to file a copy of the amended draft conditions within 7 days after it has notified the Applicant that the DA amendment has been lodged on the NSW planning portal. 4. In the event the respondent is unable to lodge the amended application on the NSW planning portal as directed in (2) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request for the matter to be relisted for further directions.

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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: 24 August 2021