Charalambous v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2016-10-24

Judgment

COMMISSIONER: This appeal, pursuant to the provisions of s 97 (1) of the Environmental Planning and Assessment Act 1979, is against the refusal of then Canterbury City Council now Canterbury-Bankstown City Council (the Council) of Development Application 452/2014 (the application) for the development of a boarding house at 1 Fifth Avenue, Campsie (the site).
The application was lodged in September 2014. It proposed a 7 storey development with 18 rooms and was refused by the Council in October 2015.
The application was amended following conciliation to reduce both the height and density. It now proposes the development of a 6 storey boarding house with 15 boarding rooms and communal laundry, living room/kitchen and outdoor open space. The development has a two level basement containing 3 cars, 4 motor cycles and 5 bicycles accessed via a basement and driveway on the adjoining development to the south.
The amended application was advertised and two submissions were lodged in response raising concerns with the overdevelopment of the site and the adequacy of the parking.
The amended proposal addressed a number of Council contentions which had been grounds for refusal. Remaining contentions related to the bulk, character and setback of the development in terms of the impact on the streetscape and on neighbours.

Site and Planning Context

The site is described as Lot C in DP337509. It is generally flat and of a narrow rectangular configuration with a frontage of 10.06m to Fifth Avenue, a depth of 25.145m and a total area of 253m². It is currently vacant.
The site is adjoined to the north by a 2 storey residential flat building at 3 Fifth Avenue and to the south and east by a recently constructed residential flat building at 37-41A Ninth Avenue. Fifth Avenue adjoins to the west.

Relevant Planning Controls

The application was lodged under the provisions of the Canterbury Local Environmental Plan 2012 (the LEP). The site is located within the R4 High Density zone and a boarding house is a permissible use in that zone.
The application is required to be assessed under the provisions of the Affordable Rental Housing SEPP (the SEPP).
Under the SEPP, development consent cannot be refused under clause 29 (1) on the grounds of density or scale if it complies with specified floor space ratio (FSR) controls in the LEP. Clause 29 (2)(a) of the SEPP states that a consent authority must not refuse consent to development if the height is not more than the maximum building height permitted by the LEP.
The parties agreed that the development complies with both the LEP height and FSR controls and therefore could not be refused on the basis of density and scale. In particular, the development has a proposed FSR of 1.67:1. The LEP permissible maximum FSR is 1.8:1 which can increase under the SEPP to 2.3:1. The maximum height of the building is 19.8m where the LEP maximum permissible height is 21m.
The parties also agreed that the development complies with all numeric controls in the SEPP in terms of landscaped area, solar access, private open space, onsite parking provision, and minimum room sizes.
Under clause 30A of the SEPP, the consent authority cannot consent to the development of a boarding house under the SEPP "unless it has taken into consideration whether the design of the development is compatible with the character of the local area".
The expert planners for the parties agreed that clause 30A was the only provision of the SEPP which remained in contention following the amendments to the proposal. However, there were also amenity impacts to consider.

Background context and remaining contentions

Ms McCulloch for the Council argued that the history of the adjoining development on the corner to the south and east, being 37-41A Ninth Avenue, was a relevant consideration. There had been an attempt by the developers of 37-41A to amalgamate with the appeal site but this was unsuccessful. The Council considered that the Applicant should not benefit from the decision to not amalgamate and argued that occupants of 37-41A would be adversely impacted from the proposed development in terms of visual, solar, overlooking and outlook considerations. The Court was advised to ignore a comparison with a complying application and to look at what was proposed.
Mr Staunton for the Applicant argued that it was an irrelevant consideration as to whether or not the Applicant was benefiting from amalgamation with the adjoining site not proceeding noting that, in granting approval to the adjoining development, the Council had accepted that the appeal site would be isolated. Nevertheless, the Council had been satisfied that there was sufficient attempts to amalgamate, which had failed, and also that the appeal site, was capable of being redeveloped albeit potentially not to the maximum that the controls allowed. The experts had also accepted that the site was isolated.
The Council acknowledged that the Canterbury Development Control Plan (DCP) did not apply to boarding houses but argued that the relevant provisions for isolated sites and higher density residential development gave guidance. These were in terms of factors such as building separation and street address.
The DCP provisions on isolated sites are as follows: iii) The development of existing isolated sites is not to detract from the character of the streetscape and is to achieve satisfactory level of residential amenity for its occupants and those on adjoining properties; and iv) In R4 zones two storey residential flat buildings or multi dwelling housing may be considered on sites that have a frontage greater than 15m but not less than 20m.
A note in the DCP states as follows: it is important to note that any development of existing isolated sites may not be able to achieve the maximum potential particularly in terms of height and floor space ratio and each case will be assessed on its individual merits.
In terms of the DCP provisions for multi dwelling housing in the R4 zone, the Council argued that the proposed development did not comply with any of the provisions in terms of setbacks (including upper floor setbacks) or deep soil landscaping alongside boundaries. The required DCP building separation distances between residential flat buildings was also not met. Furthermore, amenity impacts arose from the proposed reduced setback to the southern and eastern boundaries, with the Council considering the development to be overdevelopment of a narrow site in a transitional area.
The Council was also concerned as to how the development would look from the street, contending that the development did not meet the local character compatibility test under clause 30A of the SEPP.
The Applicant summarised that the two key issues for the Council were streetscape impacts and amenity impacts in terms of outlook, privacy, solar access, overlooking and access to daylight for residents of the adjoining development at 37-41A Ninth Avenue. Furthermore that the Council considered the impacts resulted from rear (eastern) and southern setback non-compliances.
However, the Applicant argued that:

the development was not for a residential flat building but in any event the DCP note required that development on an isolated site be assessed on its individual merits
the maximum development potential was not being sought as the proposed boarding house was under LEP maximum controls in terms of both height and FSR
there had been a deliberate attempt to provide design consistency between this building and the one on the corner (ie 37-41A Ninth Avenue). The FSR and height controls assume the two sites would be developed together and this is effectively achieved by the design of the amended proposal
if required, design changes could be undertaken to improve the outlook for the development at 37-41A. However, this development had been designed to have apartments overlook the appeal site without any regard to the possibility of the site being developed in accordance with its controls.

Compatibility with the Character of the Local Area

In dealing with the character compatibility question, Mr Staunton took the court to Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at paragraphs 22-24 which state as follows: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?
Mr Staunton argued that the area was undergoing change in character as defined by the planning controls for the locality which would impact future development and as evidenced by the approved form of 37-41A Ninth Avenue.
A Joint Expert Report addressing planning and urban design issues was prepared by Mr McNamara, a planner for the Council and Mr Adey, a planner and Mr Zanardo, an urban designer for the Applicant.
Mr McNamara argued that the development failed to provide a form of development in keeping with the desired future streetscape given it would comprise a tall, narrow building with inadequate setbacks and landscaping.
In contrast, Mr Adey was of the view that the proposed development presented as part of the corner site continuing the design features of 37-41A. He accepted that, in an ideal world, the sites would have been amalgamated but even though they hadn't been the design of the proposed boarding house was attempting to achieve a visual amalgamation with the adjacent site. This would allow development on the subject site and on 37-41A to read as effectively one development from the corner. Furthermore, given the development complied with the maximum permissible FSR and height, it could not be out of character with the area as it met the LEP controls for development in the area.
Mr Zanardo also argued that the proposed development would look as much as possible like the adjacent building to the south. By contrast if it was lowered it may stand out more or if it was designed differently it would not meet the intended character established by the approval for the adjoining development. He noted the front setbacks were the same as for this adjoining development as were the balcony treatments and a number of other features. If the adjoining new development was acceptable in terms of character, then the boarding house design, which was modelled on it, must also be.
Mr Zanardo agreed that the 10m site frontage would mean that the proposed building would look different and standalone when viewed from certain parts of Fifth Avenue but it was as similar as possible to its new neighbour, and the prominent view would be from the corner where it would read as part of the corner development.
Mr McNamara did not accept that the development would read as one with the adjacent site and reiterated that a better development would have seen consolidation to achieve a greater frontage.
The Applicant pointed out that the developments were in fact physically linked through the crossover and joint use of the basement area. However Mr McNamara argued the buildings weren't linked above ground level; instead there would be a six storey wall on the southern boundary.
The Applicant argued that the controls allowed for a taller and bulkier building than was proposed, which would be out of character with what had been developed to the south.
Mr McNamara had concerns with the limited separation between the proposed building and the building to the south. He argued that the Applicant could have explored consolidation with the lot to the north to provide greater frontage. However, he did accept that the desired future character would be development generally in the order of 20m in height. He also agreed that effort had been made to match the appearance of the southern neighbour and that the character of the facades was consistent. His concern was with the southern wall of the boarding house but he did accept that the amended proposal with articulation and a splay to this wall improved the appearance.
Mr Staunton reiterated that Council's DCP controls for residential development do not apply to this boarding house. Further, that whilst it may have been preferable for the site to be amalgamated with the adjoining site on the corner, this has not happened and the adjoining development proceeded in isolation from the appeal site. He also argued that, if the sites had been amalgamated, it could have resulted in a continuous wall to the streetscape which would not necessarily have been a better design outcome.
The Applicant also argued that the concept of possible amalgamation with the property to the north was not in Mr McNamara's written evidence and was not raised by the Council as a contention or a possible solution. Furthermore, having a 21m high building stepping down to 18m, being the height control for the site to the north, would be totally out of character although Mr McNamara argued the upper level could be a penthouse, communal open space or terracing.
In submissions, Mr Staunton argued that the character was quite unique in that the site was envisaged to be part of the corner development. When this was not able to happen for whatever reason the corner site proceeded in isolation. It then became necessary to consider how the appeal site could best be developed. In order to determine what the local character was it was necessary to go to the controls, in particular the height and the FSR, both of which this development met. The site to the north has a lower height limit and so an appropriate transition in height proposed by the controls from the corner to the property to the north is what has been reflected in the proposal.
Mr Staunton reiterated that the relevant test was as per Project Ventures: namely, are the proposal's physical impacts on surrounding development acceptable; and is the proposal's appearance in harmony with the buildings around it and the character of the street? In Mr Staunton's view, this should have been in the Council's mind in approving the development to the south. The controls envisaged a consolidated development with the appeal site which was clearly different to the character of the development to the north. The proposed development has been designed to bring about visual cohesion with the approved neighbouring building to the south. It shares a driveway and basement and has sufficient consistency and design without needing to be the same and there is a clear transition in stepping down in height to the adjoining development to the north.

Amenity Impacts

The experts agreed that it was important to provide a greater setback from the existing lower 2 storey residential flat building to the north than to the new 7 storey development to the south, as the application proposes.
Mr Zanardo advised that the setback and scale of the boarding house was in response in part to the potential amenity impacts to the northern residential flat building with the northern setback maximised to enable landscaping and greater visual separation. He advised that a boarding house development was considered an appropriate form of development given the site's constraints but also the development controls in terms of FSR and height.
The parties agreed that, if standard residential side setbacks of 4 metres applied, the site would be undevelopable given it had only a 10m frontage. Therefore a merit assessment of required side setbacks applied.
Mr McNamara did not raise a concern with the northern or front setbacks but was concerned with the potential impact developing in the manner proposed would have on its neighbours to the south and east (rear). These neighbours are all in the same corner development at 37-41A given it effectively wraps around the site on these boundaries.
The Council concerns were in terms of privacy/overlooking, loss of outlook, daylight and solar access. Whilst Mr McNamara accepted solar access would be compliant, there would nevertheless be a loss of some daylight, Mr Staunton argued that there were no numeric controls for daylight access just objectives, which Mr McNamara accepted.
Mr Adey stated that the boarding house had been designed knowing what was approved at 37-41A and had attempted to protect the amenity of the residents of this new development to the extent possible. For example, the design had been amended to introduce a splay corner to improve solar access and the outlook from this development.
In terms of the outlook from 37-41A, the Applicant considered that there are 5 apartments that are affected as they have their only aspect to the north across the appeal site. Mr Zanardo argued that any building built on the site of up to 21m would have impacts on these apartments given their design. Further that an increased setback to the south would do little to alleviate this but would make the appeal site undevelopable. He argued that the developers of 37-41A had not helped themselves in terms of minimising future amenity impacts with no deep soil landscaping adjoining the common boundary, with apartments overlooking the appeal site which is a side boundary, and with balconies as close as 4m to the boundary. He also noted that the proposed boarding house did not have any habitable room openings along the southern façade to preclude overlooking of the development to the south and that the proposal had been amended to splay the south eastern corner of the building to improve solar access for the affected north facing occupants of 37-41A.
Mr Adey agreed with Mr Zanardo that any development of the appeal site would affect the outlook of 5 apartments in 37-41A and he also noted that the developers of that site, in designing apartments to orientate to the northern boundary, must have anticipated adverse impacts and reduced amenity for these north facing apartments once the appeal site was redeveloped.
Mr McNamara agreed that the occupants of 37-41A would likely be aware of the height control applying to the site and that this development did not help itself with the orientation of some apartments across the site. He also accepted that the DCP isolated site controls envisaged reasonable development for the appeal site.
The Council's concerns with impacts to the east (rear) were potential overlooking impacts to apartments to the east in 37-41A but primarily in terms of the overlooking by the rear boarding rooms of the communal open space of that development. Mr McNamara considered that an increased rear setback to 6m would improve opportunities for landscaping, privacy, sunlight and daylight access for the adjoining development.
Mr Zanardo argued that there was sufficient building separation to the apartments to preclude overlooking and he noted that the communal open space would already be overlooked by its own residents. He also felt that it was a positive aspect of communal open space that developments generally sought to overlook it, to maximise an amenable landscaped outlook for occupants. Further that, by definition, the space is communal so privacy issues can't arise.
Mr Adey also pointed out that the communal open space is overlooked on 3 sides already and that in a high density zone there is generally acceptable mutual overlooking of such spaces. He also argued that the space should be overlooked for passive surveillance purposes and he noted that no balconies were proposed in the boarding house overlooking this area.
In summary, Mr McNamara accepted that: 1. the overlooking of the communal open space was not a ground for refusal; 2. the loss of outlook for apartments in 37-41A was primarily in terms of oblique views from windows or balconies of bedrooms; 3. 450mm window surrounds to each east facing window which continued to the southern edge of each window as offered by the Applicant would provide better privacy protection; and 4. the Court could not refuse the development on the basis of bulk, scale or height but only have regard to character, context and amenity impacts.
In closing submissions, Mr Staunton argued that the Council was trying to apply controls that don't apply to boarding houses. The development meets all of the requirements of the SEPP in terms of numeric controls and of the LEP in terms of height and FSR. The only test is that under clause 30A and the development meets that for a site in a transitional area having regard to the adjacent existing and approved developments. Unlike the approved development to the south, the proposed boarding house has the outlook of rooms to the rear and the front not across developments to the side. Furthermore, the development complies with solar access requirements and any development of the site would have some impact on its neighbours. Finally, the Applicant is not seeking favourable treatment but shouldn't be penalised because of the design of the adjacent development to the south. No reasonable further setback of the boarding house would make any improvement and any significant increased setback would make the site undevelopable.
Notwithstanding, if the Court required it, the Applicant offered to set back the fourth level of the development to match the setback of the level above which would marginally improve the outlook for north facing apartments of 37-41A Ninth Avenue.
Ms McCulloch argued the Council's concerns were not just about the southern setback but about the combination of bulk, height and scale on the streetscape. In terms of the clause 30A character test under the SEPP, she argued that the narrow tall building proposed would be quite unlike what is in the street. She also argued that replicating features of the adjacent development on the corner didn't necessarily make the proposed development compatible with the streetscape.
Ms McCulloch advised the Court that, if the amenity impacts that the Council had raised were the only issues, the Council wouldn't succeed in the appeal. It is the character impacts which are of particular relevance. However there would be apartments at 37-41A that would suffer as a consequence of the development and if there were greater setbacks there would be less solar and visual impacts. She maintained that, whilst the DCP didn't have boarding house controls, Mr McNamara had taken a reasonable approach and it was not reasonable to have reduced rear and southern setbacks if there were amenity consequences.
Mr Staunton argued that the site was ideal for a boarding house and the form of development proposed was what could be expected on the site. Further, it was not about the existing streetscape but about the future streetscape including the changes as a consequence of the recent development to the south. In terms of bulk and form, the height and floorspace controls must be the starting point and the developer was not seeking to maximise these.

Findings

Ultimately, and notwithstanding the concerns raised by the Council, I find that there are no substantive grounds for the Court to refuse consent to this application. It complies with all of the mandatory numeric standards of the SEPP and the key development standards of the LEP in terms of height and FSR.
The application as amended proposes a form of development that reflects the emerging character of the area in this location in response to the Council's core planning controls. It seeks to match the design of the recent development on its southern and eastern boundaries whilst providing a reasonable setback to the lower development on its northern boundary.
I am therefore satisfied that the character compatibility test of clause 30A of the SEPP is met.
I accept that there will be some impact to the north facing occupants of 37-41A Ninth Avenue. However, I agree with the Applicant's evidence that this is largely a result of the fact that the developers of 37-41A have designed their development to effectively borrow amenity from the appeal site by orientating apartments to overlook the appeal site, which is currently vacant.
Furthermore, there is no significant landscaping adjoining the common boundary which the developers of 37-41A could have provided to reduce future adverse impacts from development of the site.
Whilst constrained by its frontage and isolation, the LEP controls permit development up to 21m on the appeal site and some form of development commensurate with the LEP height and FSR controls would be reasonably expected to occur.
In this regard, the LEP controls envisage a form of development not dissimilar to what is proposed. I agree with both experts that a reasonable setback to the north, as is proposed, is warranted and I accept the Applicant's argument that matching the development to the south, so that it reads as one development at least from the corner, is an appropriate design for the site. It is also an appropriate design response to an isolated site in the context in which this site is located.
I also agree with the Applicant that the overlooking of communal open space, albeit of a neighbouring property, is not inappropriate. It provides passive surveillance and maximises the amenity for residents of the boarding house without having adverse impacts on their neighbours.
Finally, notwithstanding agreement of the parties that the site is isolated and constrained in terms of its width and area, there are relatively few amenity impacts associated with the proposed development of it, even with the height and FSR proposed. No amenity impacts in terms of the future residents of the boarding house were raised by the Council nor was there a concern with substantive impacts on neighbours other than on residents of north facing apartments in the approved development to the south.
In terms of the resident objections raised, the overdevelopment issue was addressed by the experts and the parking complies with the SEPP requirements and therefore cannot be a ground for refusal.
The amendments to the proposal addressed many of the Council's original contentions of concern with the application. In considering the application as amended and the agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is appropriate to grant consent to the proposal.
Finally, a set of conditions was filed with the Court which reflected the setback of the fourth level offered by the Applicant with a reduction of the section 94 contributions payable accordingly. However, I do not consider it necessary to undertake this amendment which penalises the developer of the site due to the design choice of the adjoining developer to orientate development across the appeal site rather than away from it. I have therefore deleted condition 1a), renumbered conditions 1a) to 1c), and adjusted the section 94 contribution amounts in the relevant conditions accordingly.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development application 452/2014 for a boarding house at 1 Fifth Avenue, Campsie is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits A, B, C, D and 1, are returned.

Jenny Smithson Commissioner 151682.16 - Annexure A - Conditions (98.3 KB, pdf) 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: 02 December 2016

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