Chen v Cumberland Council

Chen v Cumberland Council - [2019] NSWLEC 1375 - NSWLEC 2019 case summary — Zoe

[6]

State Environmental Planning Policy (Affordable Rental Housing) 2009

The provisions of Division 3 of the SEPP apply to the site.
Under cl 29(1)(c) of the SEPP (and as a consequence of the fact that: (1) residential flat buildings ('RFBs') are permitted on the site,(2) the site does not contain a heritage item and (3) the otherwise maximum FSR which is applies under the LEP is under 2.5:1) a 0.5:1 floor space bonus provision applies. This brings the applicable FSR control to 1.7:1. The site's floor space is 1.1:1 (Ex D, Drawing No 02) and thus readily complying. Given this compliance, under cl 29(1) of the SEPP, a consent authority must not refuse consent for this proposal on the grounds of "density or scale".
Other "must not refuse" standards (under cl 29(2) of the SEPP) which came up in evidence were: "landscaped area" and "parking". The provisions are outlined below: A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: … (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, … (e) parking if: … (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,
The SEPP also contains certain development standards under cl 30. The only standard under contention is related to maximum boarding room sizes and was agreed as being able to be adequately dealt with by way of conditions.
Clause 30A of the SEPP is relevant to the judgement and provides as follows: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

[9]

Considering evidence on the issues

The first two "issues" considered here are concerned with what was termed in submissions as the "character test". The statutory reference points are cl 29(2)(b) and cl 30A of the SEPP (see [11] and [13]), with certain DCP elements also called up to fill in particulars on what may, and may not, be suitable ground-rules for character compatibility. The core caselaw reference was the commonly cited Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 ('Project Venture'). Some pertinent citations from the case follow: "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. … 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? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character."

[10]

Visual character compatibility

The joint report of the planning experts (B Delapierre for the Applicant and D Hang for the Council) indicated agreement on what was considered to be the "local area" for the purposes of cl 30A of the SEPP (Ex 6, Joint Expert Report, p 3). While not a great deal turns on it, there was some ambiguity in this description. The words used in the joint report were that the experts considered the local area as "primarily the visual catchment of the site as viewed from within the site and directly adjacent to the site on the street". The description went on to include an aerial photo which showed the local area to include areas fronting Kane Street as well as the closer bounds of the sides streets at Calliope Street and Guildford Road (some of these areas would not be properly characterised as within the above described "visual catchment").
Mr Delapierre characterised the area as follows (Ex 6, para 1.7.2): "The existing character of the locality is a mixture of older style residential flat buildings, a traditional village retail/commercial strip, community buildings, a school, Guildford Railway Station and more recently constructed shop top housing and residential flat developments as well as the occasional dwelling such as exists at 1 Kane Street, Guildford."
Mr Delapierre also referenced the fact that land immediately to the north of the site (422 - 428 Guildford Road) was underdeveloped and subject to a development consent for a 4-5 storey shop top housing development.
In terms of visual character compatibility or appearance, Mr Delapierre felt the proposed development would sit "comfortably in the streetscape", with side setbacks of 3m which were consistent with the DCP. The front setback (10m) was also satisfactory at, much greater than the approved "built to edge" front setback indicated in the consent for the shop top housing development at the adjacent 422 - 428 Guildford Road (on land zoned B4), and similar to that of the RFB development to the south (indicated as having a front setback of 11.5m). The proposed 4-storey building height is consistent with the LEP requirements and given the other 4-storey buildings in the local area, Mr Delapierre opined it was compatible with the existing and emerging built form. Landscaping is proposed along site boundaries with the intent of creating a "garden setting". The proposed "20 trees capable of growing between 6m and 15m" would "assist with breaking up the visual bulk and mass of the building".
Mr Hang felt that the building height was not problematic. His concern was with the site's "narrow frontage". He referenced the DCP control suggesting a minimum site width of 24m for RFBs. In terms of building appearance, the key concern was at the street frontage and limited landscaping opportunities as a consequence of the extent of hardstand associated with carpark access and landscape opportunities which would improve were the development to comply with building separation controls contained in the DCP. Mr Hang highlighted the "existing tree lined streetscape and contiguous landscaping and planting between properties provided within side setback areas".
Mr Seton queried two, what he saw as, features of the local visual character in his cross examination of Mr Delapierre. These were: (1) dominance of landscape treatment over hardstand and (2) distinctive separation between buildings, with taller buildings incorporating side boundary setbacks in the order of 6m. Mr Delapierre acknowledged that Kane Street presents RFBs in a garden setting, but believed that the proposed front landscaping would result in a comparable "building in a garden setting" character. In cross examination he agreed that near the front boundary the area available for landscaping was about 1/3 of the site width (due to hardstand areas) but noted that the area increased once you moved beyond the driveway splay, allowing sufficient space for dense planting.

[11]

Analysis

I acknowledge there is some visual and land use variety in the identified local area as indicated by Mr Delapierre. However, I am persuaded by Mr Hang's view that there is something distinctive and visually positive about the urban environment in the local area. To paraphrase Project Venture, there is a readily observable character, which is based on the prevailing relationships between building height, setbacks and landscaping, most notably in Kane Street itself, which does present a pleasantly landscaped or garden setting. The hardstand at street level and built form above is noticeably less visually dominant than the landscape. This is an important and pleasant visual element that makes up the character of the local area. Mr Delapierre indicated that the proposed landscape area in the front setback was equal to or greater than currently provided (ie with the existing dwelling, lawns and shrubs. However, comparison with the existing also needs to account for intensity of built form (low rise dwelling house) which does not "dominate", certainly in comparison to a four storey boarding house development.
While I acknowledge the potential for the proposed front paper bark trees to grow and help filter views to the site, the fact of the driveway width is unable to be addressed, marking out the development site as different.
It does not seem to me that the development adequately responds to the existing visual character. In its setting today, the proposal would present as a discordant rather than harmonious element in visual terms, essentially as a consequence of the driveway width and pathway along the northern boundary and the lesser building separation (related to the limiting site width), which limits the capacity for landscape to genuinely counterbalance the built form, as occurs now in the street. Landscaping would be clearly subordinate to the built form with the proposal.
The above finding has pertinence to cl 29(2)(b) and cl 30A of the SEPP. However, before concluding on this in regard to visual character, I need to also consider future development. There was general agreement that change within the immediate environs was unlikely, with the exception of the adjacent site to the north (422 - 428 Guildford Road). The fact of the B4 zone to the north indicates potential for taller development (an additional 2m) and building to the front boundary (based on the existing consent). There was evidence from the planners that the subject site could thus be seen as something of a transition space. I accept this evidence and see it as a moderating factor in regard to my conclusions on the question of compatibility with existing visual character. But I am not able to conclude here that the landscape treatment of the front setback area is compatible with the streetscape in which the building is located. While it is not determinative in any event, the "must not refuse provision" in regard to "landscaped area" under cl 29(2)(b) of the SEPP is not triggered.

[12]

Physical character compatibility

Again mindful of Project Venture, the key physical character compatibility concerns here are in regard overlooking and noise. To be brief here, I have concluded that the other nominated concerns in Project Venture ("overshadowing" and "constraining development potential") are not determinative. An explanation for each is provided below (see [49] and [51]). I also find that the key areas of impact are to the south or towards the apartment block at 3-5 Kane Street.
The objectors living and/or in ownership of apartments to the immediate south (3-5 Kane Street) were concerned about overlooking and acoustic privacy. These apartments had private balconies and living areas oriented to the north (towards the subject development). The concern was in regard to the lodgers use of the open walkways along the building's southern façade for the three levels of the boarding house above ground level (suggested in evidence as some 1.29m in width). The extent of use by people accessing the boarding rooms was one thing, but there was also a concern about the potential for the walkway to be used as, in effect, a kind of balcony. This concern linked up the fact of the relatively small area available within the boarding rooms themselves, the lack of balconies within boarding rooms, the suggestion of a natural desire for being outdoor from time to time. There was also a suggestion that congregation of lodgers may occur out on these walkways on occasions. The impacts raised in regard to this concern were in regard to noise and visual privacy. As discussed below these concerns were generally shared by Mr Hang.
The applicant made efforts to limit the potential for overlooking through amending plans which included the provision of slatted screens to constrain the outlook. The screens seemed to occupy more than 50% of the walkways on the first and second floors (Ex D, Sheet 09 Rev E). The position of the screens would be along the more central area of the walkway length (where pedestrian traffic would be highest) and well aligned to protect the central zone of the apartment building to the south including the double balcony for the two central apartments. The proposed Plan of Management (PoM) would also prevent outdoor furniture on the walkways and smoking. An additional change was to include an additional common room. That is, there would be common rooms on both the ground level (at the rear) and at the second level (towards the middle of the development). This was seen by the applicant and its planning expert as further discouraging congregation on walkways.
Mr Hang's concern here was with the fact that the proposal did not comply with the building separation controls applying to RFBs, and the boarding house's incorporation of open walkways along the three upper levels of the southern facade, nearest the balconies and habitable rooms on the apartments to the immediate south. He felt that this was a direct result of the width of the block, with DCP controls suggesting a minimum of 24m width for RFBs in this location (DCP Pt B, 6.1 Lot size and frontage, Item C1). Unreasonable visual and acoustic privacy impacts were seen to follow. Mr Hang referenced DCP provisions for RFBs nominating a side setback control of 3m, but also indicating "side setbacks shall comply with building separation requirements". The RFB separation controls are indicated as (Pt B, 6.3 Setbacks and Separation, Item C7): "For residential up to 4 storeys 12 metres between habitable rooms and balconies 9 metres between habitable rooms and balconies and non- habitable rooms. 6 metres between non-habitable rooms."
In cross examination, Mr Seton noted that there were no building separation controls for boarding house development available. Mr Delapierre agreed, indicating it was a matter of merits. He also agreed that RFB controls could provide a "good starting point" for assessment of such development especially in the R4 zone. He also agreed that building separation could assist in visual and acoustic privacy. However, he was satisfied with the screening proposed for the walkway areas. He also did not believe the additional separation distance which might be interpreted from the DCP (for RFBs) would make a significant difference in acoustic terms. However he did agree that open walkways of this kind were not characteristic of the local area.
In cross examination by Mr Eastman, Mr Hang indicated the proposed screening provided an improved outcome than had been previously proposed, but he did not believe the privacy concern was "fixed". He also indicated that his concerns about congregation on the open walkways were not fully satisfied with the additional common room or PoM provisions. This was in part because he did not believe the second floor common room enjoyed good amenity ("inward oriented"), but generally it was the fact that boarding rooms did not have individual private outdoor space which would incline lodgers to seek out convenient external outdoor space from time to time, with the walkways a handy destination for this purpose.

[13]

Analysis

I generally accept the evidence of Mr Hang that the characteristics of the use make it likely that the open walkways will from time to time be used by lodgers as areas to spend time in the open air. Coming to a conclusion on the regularity of this is a subjective task. But I am convinced that it would not be an uncommon event (especially in warmer times of the year) to the extent that it seems to me that, without mitigation, the separation controls applying between habitable rooms and balconies (12m as per the DCP but also the Apartment Design Guide according to the evidence) constitute an applicable control in this instance.
Turning to the proposed mitigation (ie screening), it is evident that the open areas at the eastern and western ends of the walkways would have viewlines to the balconies and bedroom windows to the apartments to the south. The point was made by Mr Eastman that these parts of the walkways were the least trafficked. However, I would also see the openness of the walkways in these two areas as "attractors". That is, if there was a desire to be outside, lodgers might well be inclined towards the space where there was an outlook (view towards the outside), rather than that part of the walkway that was enclosed by screens.
In regard to acoustic impacts, I have some sympathy with the view of Mr Delapierre that compliance with the separation control would have marginal effect on the carriage of noise. However the numbers of lodgers are high in comparison to other housing in the local setting and the noise potential (at the source) is significant. Were the DCP's separation standard for RFBs achieved, there would be some improvements in terms of potential noise impacts (due to distance mitigation).
I only comment briefly on the physical impacts on the properties to the north (including the approved development 422-328 Guildford Road) to say that these impacts are seen as less than those to the south and I generally accept the view of Mr Delapierre that they are acceptable with the proposed screening and glazing devices.

[14]

Parking

Council has two related concerns in regard to on-site basement car parking: (1) the incorporation of vertical mechanical stacking ("car stackers") to allow two cars on each of six of the twelve ground level parking spots - to arrive at the proposed 18 car parking spaces, and (2) the fact that, as a consequence of basement floor to ceiling heights, some of the stacked spaces (while satisfactory height-wise for standard vehicles) would not be useable for taller "4-wheel drive" vehicles (also cited as "B99 vehicles").
In its contentions (Ex 2), Council indicated that the car stacker arrangement had not been demonstrated to be "functional, usable, convenient and safe" and that further evidence was required to justify the proposal.
In the joint report from traffic and parking experts (Ex 5), Mr M Lee (for the applicant) noted the DCP does not preclude use of stackers and indicated that the "Evolution Parking System" was proposed here and cited numerous examples of this system in Melbourne and some in Sydney, as well as three boarding house approvals in Sydney which involved car stacking; as well as examples in use in other higher density residential development. The applicant also tendered a letter from a company involved in the supply of the Evolution Parking System supporting the stackers (Ex E).
Mr A Toma (traffic and parking expert for Council) expressed the view that stacked spaces should not be counted for development control purposes, as there would be an inclination on the part of lodgers not to use them due to inconvenience. They would instead park on local streets, already evidencing parking congestion. This position meant that the proposal was under the parking standard indicated in cl 29(2)(e) of the SEPP. Mr Toma was also concerned about mechanical failures and the time taken for repairs and replacement. In cross examination by Mr Eastman in regard to SEPP requirements, Mr Toma indicated his view that a prerequisite for the inclusion of spaces was that they be "convenient".
Mr Toma acknowledged that there was good access to public transport with the station less than 500m away.
In cross examination by Mr Seton, Mr Lee acknowledged the evidence gathered in regard to the stacker system was limited to advice provided by the supplier, and that there was no expert investigation in regard to problems or risk. Again in questioning, Mr Lee indicated that the stacker system required power and would not work in instances of a power outage.

[15]

Analysis

Mr Eastman's submission is that as cl 29(2)(e)(iia) of the SEPP would require 18 spaces in this instance, and as 18 spaces are provided, compliance is achieved, and the Court as consent authority "must not refuse consent to the development" on parking grounds under the SEPP. He correctly notes there is no "gloss" to the SEPP to suggest parking spaces should mean "convenient" spaces as suggested by Mr Toma. Mr Eastman submits that this should be the end of the inquiry. In support he cited FFS Canterbury Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1145, where Commissioner Dickson gave attention to the question of car stackers in boarding house development and found in favour.
While I have some support for his view, I do not find the situation so unequivocal as Mr Eastman would suggest. It seems to me there is a reasonable expectation that, to qualify, parking spaces should be available for lodgers' vehicles. Indeed that parking spaces be available "at all times" is one of the conditions nominated in the without prejudice conditions agreed by the parties (Condition 161, Exs 7 and F). It was agreed by the experts that given the stackers involve mechanical devices there would be occasional problems with their workings. While it is reasonable to allow considerable leeway on this point, of risk of mechanical (or electrical) failure, the notable factor here is the proportion of stacked spaces proposed. There was no useful evidence provided on the reliability of car stackers over time for boarding houses. While this might be seen as of no real practical consequence where only one or two stacked spaces were proposed (eg the other instances of approved stackers for boarding houses cited by Mr Lee in Ex 5), the question cannot be completely ignored where only one third of the parking spaces are not related to the mechanical stacking devices, as is the case in this proposal. The greater the proportion of stacked cars the more reason the longer term viability of the spaces warrants clarity. I see the issue as meriting more evidence-based attention where high proportions of "stacking-affected" spaces are proposed. In this instance, I do not refuse consent on the grounds of parking but this is centred on the site's particularly good proximity to Guildford Station and thus the wider public transport system.
For the record, if this question of "availability" (in regard to car stackers) is set aside, I am not concerned that a small portion of parking spaces are not available to taller four wheel drive vehicles (mindful of Osborne v Woollahra Municipal Council [2013] NSWLEC 1264, considering [55] and surrounds).

[18]

Conclusion

I have found that the proposed development would be other than harmonious with the character of the local area in regard to its visual presentation and physical impacts (visual and acoustic privacy), mindful of the findings of Project Venture. But Mr Eastman is right in pointing out that this is not the end of the matter. Clause 30A of the SEPP only requires a consent authority to "take into consideration" this question of character compatibility. Mr Eastman is also correct in pointing to the SEPP's baseline concern with facilitating the provision of affordable rental housing. Of particular note is objective 3(b) of the SEPP to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards
His point (in his final submission) was that bonus FSR controls and other non-discretionary standards will bring implications. "It is inevitable that 'something has to give' in order to give effect to the provisions in (the SEPP). It is not that this is without merit limitation. It is of course. However, those are to be guided by the other provisions in (the SEPP) as well as looking at other general merit matters".
Mr Eastman also emphasised that the proposal is well under the applicable FSR control and complies readily with the height control.
I believe these are valid points. Sometimes certain implications might have to be accepted for the achievement of policy ambitions, and this location, near the station, could be a good one for those needing affordable housing. While both visual and physical character compatibility are important concerns and I accept the evidence of Mr Hang in regard to each, for me the compelling "general merit matter" in the consideration of this application, which is determinative, is the potential for direct impact on visual and acoustic privacy as enjoyed at 3-5 Kane Street. The proposed walkways over three levels, oriented towards and close to the living areas at 3-5 Kane Street with, again agreeing with Mr Hang, good potential to be logically used as outdoor areas to enjoy by some or many of the 41 lodgers (given the relatively small size of their accommodation rooms); would bring unreasonable impact and unfair effects on the everyday amenity experienced by occupants of these apartments. As indicated above at [34-[36], the proposed walkway screening cannot adequately address either visual or acoustic privacy deficiencies.

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (5)