Compage Group Pty Ltd v Georges River Council

The site and locality

1. The Land is on the north-eastern corner of Garfield Street and Hampton Court Road. It is located approximately 500 m from Carlton Railway Station which is in the centre of the Carlton commercial precinct. It is a rectangular allotment with a frontage of 12.21 m to Garfield Street and 36.39 m to Hampton Court Road. It has an area of 444.3 m2. The Land falls by approximately 1.67 m towards Garfield Street and has a cross-fall to Hampton Court Road of approximately 0.7 m.
2. The Land is located in an established residential area comprising predominantly residential flat buildings of different eras, although a few single dwelling houses remain. Adjoining the Land to the south-west at 41 Hampton Court Rd is a three (3) storey brick and tiled roof residential flat building and to the north-west at 29 Garfield St is a two (2) storey brick and tiled residential flat building.
3. A site inspection was carried out at the commencement of the hearing. The Court observed a wide variety of residential flat buildings in the area most of which enjoy generous front and side setbacks. These setbacks have enabled tree planting between and, in some cases, in the front of the buildings. These trees contribute significantly to both the character and amenity of the local area.

Environmental Planning and Assessment Act 1979

1. An express object of the EPA Act is to promote "the delivery and maintenance of affordable housing".

State Environmental Planning Policy (Affordable Rental Housing) 2009

1. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Rental Housing SEPP) applies to the Land.
2. Clause 29 of the Affordable Rental Housing SEPP provides that a consent authority must not refuse consent for development to which the clause applies on various grounds if the development complies with the applicable development standards specified in that clause.
3. It is common ground that the proposed development complies with the development standards specified in cl 29 for floor space ratio, solar access, private open space, car parking and accommodation size and accordingly development consent cannot be refused on any of those grounds. The building slightly exceeds the maximum allowable building height but the Council does not contend that development consent should be refused on that ground. Clause 29(2)(b) provides that a consent authority must not refuse consent on the ground of landscaped area "if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located". Again, the Council does not contend that development consent should be refused because of any breach of cl 29(2)(b).
4. Clause 30 of the Affordable Rental Housing SEPP provides that a consent authority must not consent to development to which the clause applies unless it is satisfied of each of the matters set out in that clause. These include the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager's room, requirements for motorcycle and bicycle parking, and use of the ground floor on land zoned for commercial purposes. These matters form the minimum standards required for a boarding house. The Council does not contend that the proposed development fails to satisfy any of these matters.
5. Clause 30A of the Affordable Rental Housing SEPP is central to the dispute between the parties. It provides: 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.
6. The application of cl 30A to the proposed development will be considered in detail below.

Kogarah Local Environmental Plan 2012

1. The Land is within Zone R3 - Medium Density Residential under the Kogarah Local Environmental Plan 2012 (LEP). Development for the purpose of boarding houses is permissible with development consent on land within that zone.
2. Clause 2.3(2) of the LEP requires the Court to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives for the R3 Zone are: • 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.
3. The proposed development is consistent with these objectives.
4. Pursuant to cl 4.3 of the LEP the maximum permissible height for development on the Land is 15 m. The maximum height of the proposed development is approximately 16.11 m, which exceeds the maximum permissible height, mainly due to the lift overrun. A cl 4.6 request was included in the Statement of Environmental Effects (SEE) prepared by Rod Logan Planning dated January 2020.
5. The proposed development has a floor space ratio (FSR) of 1.54:1 which complies with the applicable maximum FSR of 2:1 prescribed by cl 4.4 of the LEP.
6. Clause 6.2(3) of the LEP provides that before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. A Geotechnical Investigation Report prepared by WITT Consulting dated May 2020 was submitted with the DA which the Council says, and I accept, addresses the matters that must be considered under cl 6.2.

Draft Georges River Local Environmental Plan 2020

1. The Land is included within Zone R4 - High Density Residential under the draft Georges River Local Environmental Plan 2020 (draft LEP), which has been finalised but is yet to commence. The planning controls contained within the draft LEP are not dissimilar to those in the LEP and, in particular, the maximum building height and floor space ratio will remain the same. In any case the draft LEP contains a savings provision that, when made, will require the DA to be determined as if the new LEP had not commenced.

Kogarah Development Control Plan 2013

1. The Kogarah Development Control Plan 2013 (DCP) applies to the Land. It does not contain any provisions specifically relating to boarding house development. However, the Council contends that some of the DCP provisions relating to development for the purposes of residential flat buildings are relevant in identifying the character of the local area. Those provisions will be discussed later in this judgment.

The objector evidence

1. The DA was notified by the Council from 27 April 2020 until 11 May 2020. Six (6) submissions were received objecting to the development. A further 11 submissions were received by the Council from local residents wishing to be heard at the hearing of the appeal. These raised issues which included:

• Overdevelopment;
• proposed development not in harmony with nearby buildings and the existing landscape;
• solar access;
• car parking;
• social impacts;
• noise; and
• waste collection.

1. Oral evidence was given on site by Ms Zoe Liu, a resident of the adjoining residential flat building at 41 Hampton Court Rd. Ms Liu told the Court that she represented the executive committee of that building and also spoke on behalf of residents of the residential flat building across the street at 64 - 66 Hampton Court Rd and also some of the residents of the residential flat building at 29 Garfield St.
2. Ms Liu said that her main issue of concern was the setback of the proposed development to Hampton Court Rd. She pointed out that along Hampton Court Rd each building has a side setback from the boundary of the adjoining property. Sometimes this takes the form of a driveway and sometimes a garden area. The proposed development, however, would be "right on the boundary" with a setback of only 0.91 m.
3. She also drew the Court's attention to the front setbacks of buildings in Hampton Court Rd. Ms Liu said that each building had a front setback of about 5 m and that the front setback of her own building at 41 Hampton Court Rd was 5.7 m. The proposed development, however, would have a setback of only 510 mm.
4. Ms Liu also complained that the rear setback of the proposed development was out of step with other buildings in Garfield St which she said had rear setbacks of about 9 m. The proposed development would have no setback from the rear boundary.
5. She also raised a number of other concerns, including the impact of the proposed development on solar access, the risk of damage to foundations likely to result from building on sandy soils, garbage collection, car parking and sewerage problems.

The expert evidence

1. A joint expert report was prepared by the planners and urban designers engaged by each party (Ex 5). The Applicant's experts were Rod Logan (planning) and Rohan Dickson (urban design). The Council's experts were Eliyah El Khoury (planning) and Brian McDonald (urban design).
2. A joint expert report was also prepared by the engineers engaged by each party, Joe Bacha for the Applicant and David Milner for the Council (Ex 11). This report addressed the Council's contentions relating to stormwater disposal.
3. A joint expert report was also prepared by the parties' traffic experts, Michael Logan for the Applicant and Shereny Selim for the Council (Ex 12).
4. Finally, a joint expert report was prepared by Johnny Derwent, the Applicant's landscape architect and Craig Kenworthy, the Council's Landscape & Arboriculture Consultant (Ex 6). They also prepared a supplementary report to deal with changes to soil depths that resulted from an amendment to the carpark design made late in the hearing (Ex 13).

The issues in the appeal

1. The parties agree that the key issue for the Court to determine in the proceedings is whether the design of the development is compatible with the character of the local area. In addition, the Council says that the proposed development is an overdevelopment of the site, creates unacceptable internal amenity impacts on residents, and will result in unacceptable traffic impacts.

Is the design of the proposed development compatible with the character of the local area?

1. The parties agree that the Court's consideration of whether the design of the proposed development is compatible with the character of the local area should be informed by the planning principle established by Roseth SC in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture).
2. In Project Venture, the Senior Commissioner began by asking what was meant by "compatible". He said (at [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."
3. He then went on to propose a methodology for assessing whether a development is compatible with other development in the area: "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."
4. I propose to consider the compatibility of the design of the proposed development by reference to the two questions posed by Roseth SC in Project Venture: 1. Are the proposal's physical impacts on surrounding development acceptable? 2. Is the proposal's appearance in harmony with the buildings around it and the character of the street?

(1) Are the proposal's physical impacts on surrounding development acceptable?

1. In relation to physical impacts, the Council's only contention is that the proposed development will have a physical impact on the adjoining property at 29 Garfield St due to what it says will be a minimal setback and inadequate screening. The Council says that this will have a physical visual impact and will constrain the future development of the adjoining property.
2. The nature of the physical impact of the proposed development on the property at 29 Garfield St was explained by Mr McDonald in his oral evidence in this way. He gave evidence (Transcript, 1/6/21 p70) that the existing outlook for the residents of 29 Garfield St is a mixture of built form, landscaping and sky. His evidence (Transcript, 1/6/21 p71) is that, if the proposed development is constructed, the outlook will be one of built form only. In his view, the landscaping proposed on the boundary between the Land and 29 Garfield St is only to the first residential floor level and, he says, is "very minimal, as it's very low" and does "almost nothing to relieve the built form". This is because, on Mr McDonald's evidence, there will be 4 storeys of building above the height of the proposed landscaping.
3. The Applicant however submits that the residents of 29 Garfield St currently overlook the existing built form and roof of the existing dwelling on the Land and that, even if views of the sky are available standing at the windows, given the zoning and 15 m height limit applicable to the Land, some impacts to the existing outlook are inevitable. The Applicant makes the point that, even if a 3 m setback was provided along the side boundary, the impacts of the development would be similar given the height of the building and that the overlooking of a new, well-articulated building with landscaping is not inappropriate.
4. The Applicant also submits that the visual impacts might be further ameliorated by installing bamboo trough-pots, 3 to 4 m in height, to "green up" the building along this façade. This would be in addition to proposed vertical privacy screening above a 1.6 m solid upturn for the breezeway. However, these measures were not put to Mr McDonald when he gave oral evidence.
5. In its Closing Submissions in Reply, the Applicant argues that it has mitigated the impacts of the proposed development on 29 Garfield St by providing a podium shielded by Colorbond fencing, building separation above the podium, privacy treatments including glass blocks and highline windows, and a new landscape plan to green up this façade. It submits that, if the Court accepted that an outlook on a new, landscaped, well designed and articulated building was unacceptable, that would thwart the intent of the Affordable Rental Housing SEPP and indeed the redevelopment of the local area.

Findings on physical impacts on 29 Garfield St

1. The Council does not raise any contention that development consent should be refused because of any overshadowing or overlooking impacts. I also accept the Applicant's submission that the acoustic impacts of the proposed development on 29 Garfield St have been addressed except, perhaps, if the residents of the proposed boarding house are yelling or shouting, as referred to by Mr McDonald in his oral evidence.
2. The only physical impact of the proposed development on the property at 29 Garfield St is the visual impact. That impact, however, will be significant. I agree with Mr McDonald that, if the proposed development proceeds, the residents of 29 Garfield St will lose what I observed to be a relatively open view across to the existing single storey dwelling house on the Land, a view which includes the existing vegetation at the rear of the Land and also a view of the sky. That view will be replaced by what will inevitably present as a dominating 5 storey wall. While the articulation of the wall and the landscaping proposed will ameliorate the impacts of the proposed development to a small extent, those impacts will still be significant and cannot be ignored when considering whether the design of the proposed development is compatible with its surroundings.
3. While the Applicant quite rightly points out that the zoning of the Land means that the carrying out of higher density development on the Land is likely, and perhaps inevitable, in the future that should not result in impacts of the scale and nature of the proposed development. I do not agree with the Applicant that this finding will "thwart the intent" of the Affordable Rental Housing SEPP. While the SEPP clearly aims to facilitate the provision of affordable rental housing, it specifically requires consideration to be given to whether the design of the proposed development is compatible with the character of the local area. It necessarily follows that the intent of the SEPP is not to enable boarding house development the design of which is not compatible with the character of the local area. Physical impacts, such as the visual impact on adjoining developments, are relevant in considering such compatibility. In the present case, for the reasons given in the previous paragraph, I find that that impact would be unacceptable.

Compatibility with the character of the street

1. The Council's key compatibility concern is the visual impact of the proposed development and whether it will be "in harmony" with the buildings around it and with the character of the street. There are 2 separate, but related, aspects to this. One is the proposed side setbacks and the other is the proposed landscaping.

Compatibility and side setbacks

1. The Council's submissions in relation to side setbacks are that: 1. The side setbacks of the proposed development, being a nil setback to 29 Garfield St at ground floor level and a 510 mm setback to Hampton Court Rd are incompatible with the existing character of the area; 2. The minimal side setbacks would disturb the existing spatial relationship between buildings in the visual catchment; and 3. As a result of the minimal side setbacks, the proposed development cannot sustain canopy trees (which ties into the Council's concerns about the incompatibility of the proposed landscaping with the character of the local area).
2. The parties' experts agreed on the area which comprises the "local area" for the purposes of cl 30A of the Affordable Rental Housing SEPP. That area is shown in Ex J (see below) and may be described as broadly including the area bounded by Railway Pde, Andover St and Hampton Court Rd.
3. There is also general agreement between the experts on what makes up the character of the local area.

Council's expert evidence on compatibility and side setbacks

1. The Council's urban design expert, Mr McDonald, gave evidence (Ex 5) that the existing local character consists of an eclectic mix of residential flat buildings of different eras and single storey dwellings which, in general, are separated by a distance of between 9 and 13 metres and which commonly include tree planting between the buildings. In cross-examination, Mr McDonald agreed that there are some examples of buildings in the local area with narrower side setbacks. However, in his view, those examples were uncharacteristic of the side setbacks found generally in the area which he maintained were "reasonably consistent within a range of say 9 to 13 m" (Transcript 1/6/21 p44).
2. Mr McDonald says that, unlike other development in the local area, the proposed development would be constructed on the boundary with 29 Garfield St at ground level and with only a 510 mm setback on the Hampton Rd frontage. The proposed development would be constructed on the rear boundary for approximately half that boundary at ground level and would be set back 916 mm for the remainder.
3. Mr McDonald's evidence is also that the separation between buildings in the local area has enabled tree planting between the buildings.
4. While there are no specific planning controls in the DCP relating to boarding houses, Mr McDonald gave evidence (Ex 5) that regard should be had to the DCP controls relating to residential flat buildings in considering the compatibility of the proposed development with the existing and desired future character of the local area.
5. In this regard Mr McDonald in Ex 5 refers to the minimum site area (1,000 m2 ) and site width (24 m) for the construction of a residential flat building and says that the proposed development has a site area of only 444 m2 and a site width of 12.21 m. Mr McDonald then makes reference to the provisions of the DCP dealing with building setbacks and street interface, noting that an objective of these controls is to "establish the appropriate spatial separation of the built form to the public domain and adjoining development".
6. Mr McDonald's evidence (Ex 5) refers to Part C2.3 of the DCP which contains controls relating to residential flat buildings. Control (1) requires a front setback of 5 m for buildings up to 4 storeys on both streets for corner sites and 8 m above 4 storeys. Control (3) requires a rear boundary setback of 6 metres up to 4 storeys and 9 m above 4 storeys. Control (4) requires a minimum side setback of 6 m up to 4 storeys and 9 m above 4 storeys. Mr McDonald's evidence is that these controls are consistent with Part 2F of the Apartment Design Guide (ADG) and are aimed at providing sufficient land area to ensure that there is a balance between built form, building separation and quality of landscaping. He says that, in considering these controls, "it is obvious" that the proposed development (or a residential flat building) "should not be constructed" on the Land. Application of the front and side setback controls, he says, "leaves no room for a building" on the Land.
7. Mr McDonald also refers to what he describes as "the flow on effects of the contextual unacceptability of the proposed boarding house". These are: 1. A dominating 5 storey wall presenting to the existing 2 storey residential flat building at 29 Garfield Street separated from the side windows and balconies by about 2.5 m; 2. Minimal deep soil for effective landscaping along the Hampton Court Rd frontage to relieve the bulk and scale of the proposed building; and 3. A dominating 5 storey wall presenting to the windows and balconies of 41 Hampton Court Rd.
8. In cross examination (Transcript 1/6/21, pp41-42) Mr McDonald agreed that the assessment of character could be done by reference to ten factors proposed by the Applicant, being building use, height, density (bulk and scale), setbacks, landscaping, materials, articulation, street wall height, elevations and roof form, although he added an eleventh factor, "spatial characteristics". He also agreed that the proposed development would satisfy many of these 10 (or 11) factors but stressed that he entertained serious concerns about the proposed side setbacks, landscaping and density (transcript 1/6/21, p68).
9. The Council's expert planner, Mr El Khoury, echoed Mr McDonald's concerns. He says (Ex 5) that residential flat buildings are the predominant building form in the locality and given both the existing and proposed zoning of the land this is unlikely to change in the future. In his opinion the proposed development adopts the typology of a residential flat building but fails to consider many of the envelope controls that apply to a residential flat building. This, he says, results in the proposed development being out of character with development in the locality and not satisfying the requirements of cl 30A of the Affordable Rental Housing SEPP.
10. In considering whether the appearance of the proposed development is in harmony with the buildings around it and the character of the street, Mr El Khoury agrees that the minor breach of the height control by the lift overrun of itself does not result in significant environmental impacts; however, he points out that the 15 m height limit "is a maximum and not an entitlement" and that, given the small area of the Land and its corner location, the proposed development will appear taller and more prominent than other buildings in the area. He says this is especially the case given the large footprint the building adopts and the lack of significant stepping or side setbacks.
11. Mr El Khoury is also highly critical of the setbacks adopted by the proposed development. The building's ground floor is located on the boundary with the adjoining property at 29 Garfield Street with no setback at all and the setback along the secondary frontage (along Hampton Court Road) is only 510 mm, well short of the 5.0 m setback that is required by the DCP for residential flat buildings. He says that the proposed development does not observe any of the ADG recommended setbacks and does not provide stepping to the upper floors to reduce the perceived size of the building.

Applicant's expert evidence on compatibility and side setbacks

1. The Applicant led expert urban design evidence from Mr Rohan Dickson. Mr Dickson's evidence is that the DCP does not contain any controls specifically relating to boarding house development and the proposed development is only required to meet the applicable controls and provisions of the Affordable Rental Housing SEPP and the LEP and the general development controls in Part B of the DCP. He does not accept that the DCP controls for residential flat buildings have any relevance for the boarding house development the subject of this DA. Further he says it is unreasonable to contend that the proposed development can only be consistent with the local character if it is developed in accordance with the controls applicable to residential flat buildings.
2. Mr Dickson also gave evidence that, while the proposed development does not strictly comply with the development controls for residential flat buildings in the DCP, it takes into consideration the existing built form character of neighbouring built forms, consistent with cl 30A of the Affordable Rental Housing SEPP.
3. Mr Dickson accepted (Ex 5) that buildings in Garfield St and Hampton Court Rd have side setbacks of up to 6 m. His evidence was, however, that these setbacks reflected the side setback controls for residential flat buildings and stressed that these did not apply to boarding house development. Mr Dickson's evidence (Transcript 1/6/21, p74) was that the size of the side setbacks in the area generally varies with the size of the development site: wide sites have wide side setbacks and narrow sites have narrow side setbacks.
4. Mr Dickson's evidence is that the proposed development is in harmony with the buildings around it and the character of the street in that: 1. The proposed development (with the exception of the lift overrun) complies with the height limit anticipated by the LEP and is therefore consistent with the desired height of development in the streetscape; 2. The proposed development provides deep soil planting "at all boundary setbacks"; 3. The proposed setbacks do not result in any adverse visual impacts to neighbouring properties; and 4. The proposed building materials have been amended to improve the compatibility of the proposed development with neighbouring properties.
5. The Applicant's expert planning witness was Mr Rod Logan. Mr Logan stressed that there are no statutory planning controls for boarding house development regulating site area, setbacks or landscaped areas and expressed the view that the proposed floorspace, setbacks and landscaped areas are all acceptable on merit. He says that the test of compatibility is not a test of sameness and that the underlying floor space ratio and height controls anticipate development of the scale proposed by this DA. This is evident, he says, in the more contemporary development that has occurred in the local area.
6. He says that the built form of the proposed development "is respectful of the character of a RFB, but it is not necessary to employ ADG compliant setbacks to achieve a building that is in character with a RFB". His evidence is that any proposal to erect a residential flat building on the site would have a similar building envelope and footprint to the proposed development.

Applicant's submissions on compatibility and side setbacks

1. The Applicant submits that the Court's consideration of the DA should be made in the light of the fact that one of the objects of the EPA Act is to promote "the delivery and maintenance of affordable housing" and that the Affordable Rental Housing SEPP has been described as a "facultative and beneficial State environmental planning policy": 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 (at [19]).
2. The Applicant submits that there is no planning control on side setbacks for boarding house development in any of the applicable planning instruments. Relying primarily on Mr Dickson's evidence, the Applicant submits that the Court should find that within the local area large sites tend to have large setbacks and narrow sites tend to have narrower setbacks and that these are all "within character".
3. The Applicant argues that, applying the planning principle in Project Venture, 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 this regard the Applicant says that Mr McDonald's agreement that the proposed development complies with "8 out of 10" of the Applicant's factors for assessing compatibility is an important concession. To the extent that the side or rear setbacks are narrower than usual, the Applicant argues, compatibility does not require "sameness" and there are limited impacts associated with the side and rear setbacks.

Council's submissions on compatibility and side setbacks

1. While the Council did not go so far as to submit that the DA must comply with the ADG or applicable local controls for RFBs, it says that an assessment against these controls assists in determining the form of development that is reflective of the character of the area. It contends that the controls, particularly for side setbacks, should be looked to as a guide when undertaking the consideration required by cl 30A of the Affordable Rental Housing SEPP.
2. The Council adopts the comments of Gray C in Elcheikh v Cumberland Council [2018] NSWLEC 1165 (Elcheikh) at [38] that: "…, in order to be compatible with the future character of the local R4 area, the boarding house must reflect the controls that apply to the predominant residential form in the zone, which are residential flat buildings. However, as acknowledged by Mr McDonald, there is some flexibility in utilising those building envelope controls and I accept that, given that the site needs to be considered as one development lot, some flexibility is appropriate."
3. The Council submits that, coupled with the existing developments in the local area, the controls make clear that side separation between buildings is "a predominant contributor to character" and argues that the failure of the proposed development to observe setbacks similar to those prescribed for residential flat buildings by the DCP and ADG results in the Proposal not being within the range of what is 'compatible' along Garfield Street and Hampton Court Road.

Applicant's submissions in reply on compatibility and side setbacks

1. In its closing submissions in reply, the Applicant submits that ultimately, compatibility does not require "sameness" and the Court would find that the proposed development is in harmony with the surrounding spaces of the local area. It points to the development being set back on Garfield Street consistent with other buildings with deep soil and canopy tree landscaping in the frontage. Further, the Applicant says that there is no uniform side setback on the street or in the local area, and that the proposed development is in the form of a "numerically compliant, well articulated and visually appealing building, with significant boundary planting on the remaining elevations".
2. The Applicant points out that there are no specific side setback controls for boarding houses in any of the relevant planning controls. This, it argues, warrants a flexible approach in the circumstances. The Applicant relies on what it says is Mr Dickson's unchallenged evidence that there are some 14 isolated lots in the local area (Exhibit C tab B11) and that side setbacks are not uniform within the local area: there are large setbacks on large sites, and narrow setbacks on narrow sites.
3. The Applicant also relies on the reasoning of Smithson AC in Woodhouse & Danks Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1048 (Woodhouse) dealing with side setbacks (at [127]): "The contended Part 7 controls were those associated with the side setbacks; in particular, their width, the acceptability of the landscaping they contained, and the implications in terms of solar access… Whilst I accept that an assessment against the Part 7 controls may assist in determining the form of development that may be reflective of the future local character, I agree with the applicant that there is no statutory requirement for the proposed boarding house to comply with those controls."
4. The Applicant rejects Mr El Khoury's assessment against the ADG which, it says, applies the ADG with rigidity in circumstances in which the ADG does not apply to development for the purposes of a boarding house.

Findings on compatibility and side setbacks

1. I will deal first with the relevance of the DCP and ADG controls.
2. I accept the Applicant's submission that there are no specific side setback controls for boarding houses in any of the relevant planning controls and that this warrants a flexible approach in the circumstances of this DA. I also accept the Applicant's submission that the provisions of the DCP and ADG relating to residential flat buildings do not apply to boarding house development.
3. That, however, does not mean that the setbacks for residential flat buildings specified in the DCP and ADG are of no relevance to the DA. In this regard I agree with what Gray C said in Elcheikh that, in order to be compatible with the future character of the local area, the proposed development should respect the controls that apply to the predominant form of residential development in the zone, being residential flat buildings. As the Applicant submits, those controls should be applied flexibly; however, they still have a role to play in the consideration of the DA and cannot be ignored.
4. I do not perceive any substantive inconsistency between what Gray C said in Elcheikh and the approach of Smithson AC in Woodhouse. Smithson AC clearly accepted that the DCP controls may assist in determining the form of development that is reflective of the future local character. While there is no statutory requirement for boarding house development to comply with planning controls that are expressed to apply to residential flat buildings, as Smithson AC accepted in Woodhouse, an assessment against those controls can still assist in determining the form of development that is reflective of the future character of the local area.
5. Adopting this approach, I find that the future character of the local area for the purposes of this appeal is likely to comprise development that, consistently with the DCP and ADG, will generally observe relatively generous side and rear setbacks of between 6 and 9 m. Those setbacks are somewhat less than the side setbacks of some existing residential flat buildings in the local area which, on Mr McDonald's evidence, are between 9 and 13 m. They would, however, be sufficient to enable tree planting to occur between buildings.
6. The proposed development would not be set back at all from the adjoining property at 29 Garfield St at ground floor level and would be set back only 1.5 m on each other floor. It would be also not be set back from the adjoining property to the rear at 41 Hampton Court Rd for half its length at ground level and would be set back for the remainder by only 916 mm. The rear setback at other levels is only 3 m. These setbacks will result in a building that is very different to the likely future development in the local area which, as noted above, I have found is likely to have side and rear setbacks of between 6 and 9 m. The setback of the proposed development from its Hampton Court Rd frontage would be only 510 mm where the DCP would require a residential flat building to be set back 5 m.
7. The proposed development does not have to comply with these controls. However, I accept the Council's submission that the separation between buildings is an important contributor to character and find that the substantial discrepancy between the setbacks of the proposed development with first, the setbacks of the existing residential flat buildings in the local area, and second, the setbacks contemplated by the DCP and the ADG, means that the proposed development will not exist in harmony either with the existing or future buildings around it or the streetscape character of Garfield St and Hampton Court Rd.
8. The Applicant referred the Court to two decisions of the Court which it says are instructive when it comes to boarding houses on narrow corner sites with smaller proposed setbacks. In one of these decisions, Charalambous v Canterbury-Bankstown Council [2016] NSWLEC 1576, the Court approved a 6 storey boarding house on an isolated site of 253 m2 in Campsie. In the other decision, BCMA Investments Pty Ltd v North Sydney Council [2021] NSWLEC 1046, the Court approved a 4 storey boarding house at Wollstonecraft on a site of 300m2. I am, of course, not bound by either of these cases: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 and the factual circumstances in each of those cases are different to those before me in this appeal. Especially when the matter under consideration is the compatibility of the design of the proposed development with the character of the local area, the Court is not assisted by decisions of the Court in relation to other development proposals in other localities.

Compatibility of landscaping and streetscape

1. The Council's other contention is that the proposed development will adversely affect the streetscape of the local area due to the proposal's poor landscape treatment. It says that this results in the proposed development not being compatible with the character of the local area, contrary to cl 30A of the Affordable Rental Housing SEPP.

Council's expert evidence on compatibility, landscaping and streetscape

1. As previously noted, the Council's planning expert, Mr McDonald, gave evidence (Ex 5) that wider side setbacks are common in the local area with existing residential flat buildings and single storey dwellings generally separated by a distance of between 9 and 13 metres and that tree planting between these buildings is common. During the site inspection I observed that the local area contains a relatively high number of canopy trees given the relatively high density of residential development that has occurred.
2. The Council's experts expressed concern about the compatibility of the proposed landscaping on the Hampton Court Rd frontage of the Land with the character of the local area.
3. The evidence of the Council's urban design expert, Mr McDonald (Ex 5), was that the deep soil zones along Hampton Court Rd and at the rear of the Land are too narrow to sustain trees or other forms of planting that would effectively soften the visual impact of a 5 storey building. He says that the deep soil zone on the Hampton Court Rd frontage is only 510 mm which is insufficient to establish an acceptable landscape setting. The proposed "green ring" around the lower part of the building is, on his evidence, not compatible with the streetscape in which the building is located.
4. Mr McDonald's view is shared by Mr El Khoury. The deep soil zone along Hampton Court Road is, Mr El Khoury says (Ex 5), not wide enough to allow for sufficient space for trees to adequately screen the proposed development from the street. His evidence is that locating the ground floor of the proposed development along the boundary with the adjoining property at 29 Garfield Street is a poor outcome as it does not allow for a deep soil buffer between the allotments.
5. In terms of the compatibility of the proposed landscaping treatment with the character of the local area, the Council's landscaping expert, Mr Kenworthy, gave evidence (Ex 6) that the existing development immediately adjacent to the Land along Hampton Court Rd is set back considerably and provides for trees and deep soil planting, unlike the proposed development where the setback to be provided offers no opportunity to have trees planted to soften the bulk and scale of the development. The proposed setbacks are, in his view, inadequate to enable the planting of trees to reflect the existing development in both Garfield St and Hampton Court Rd, resulting in the proposed development being out of character with development in the area.

Applicant's expert evidence on compatibility, landscaping and streetscape

1. The Applicant's urban design expert, Mr Dickson, gave evidence (Ex 5) that the proposed development would provide landscape treatment at all boundary setbacks to improve outlook and visual amenity to residents, particularly to the rooms on the ground floor. His evidence was that the proposed landscaping at both street frontages would contribute to improving the existing landscape character of the area.
2. Mr Logan, the Applicant's planning expert, observed that there are no statutorily applicable landscaped area requirements for boarding houses and expressed the view that the proposed landscaped area was acceptable on merit. His evidence was that the proposed landscaped area to be provided to the primary street frontage on Garfield St was "arguably of a higher quality than that evident on immediately adjacent sites" and that the landscape character of the immediate streetscape is more influenced by street planting than any substantive planting within the front setback.
3. Mr Derwent, the Applicant's landscaping expert, says (Ex 6) that setbacks "are unique to the site shape and width". In this regard he points to the property opposite the Land at 36 Garfield Street which he says has the same limited set back to its Hampton Court Rd side. His evidence is that the property at 29 Garfield Street also has limited setbacks with no significant tree plantings and only one tree in the front setback. These are, he says, good examples of the narrow blocks in the area.
4. Mr Derwent gave evidence (Ex 6) that the nature of the site makes for what he describes as a "unique outcome" comprising plantings to create a green ring to run around the building at the ground floor and level one which he says will "create a visual amenity from the street with dominating cascading plants." The need for large screening plants is, in his view, not needed for this narrow site.

Applicant's submissions on compatibility, landscaping and streetscape

1. The Applicant submits that the starting point for a consideration of the proposed landscape treatment is cl 29(2)(b) of the Affordable Rental Housing SEPP. That clause provides that a consent authority "must not refuse" consent: (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.
2. The Applicant argues that, on its face, this control makes it clear that the emphasis for landscaping for a boarding house under the Affordable Rental Housing SEPP is the front setback area. It says that a non-compliance with cl 29(2)(b) is not contended against the Applicant and accordingly the DA cannot be refused on the grounds of "landscaped area". It also submits that compliance with the landscape control would necessarily mean that the overall "landscaped area" is within character for the purposes of cl 30A.
3. The Applicant then submits that, to the extent that there is scope to refuse the DA on the basis of landscaping and character, the following is the agreed evidence of the landscape experts: 1. cl 6.13(5) of draft LEP: in relation to future character, the "landscaped area" for the Site is 124m² or 27% of site area. This complies with the 10% requirement for the R4 zone by almost a factor of three; 2. green base: each setback of the will be landscaped with a combination of planting and planter boxes. A green base would be provided around the bottom of the building and all proposed plants would grow to maturity; 3. ADG: the 8.7% coverage of deep soil complies with the requirement of 7%; 4. primary frontage: the blueberry ash trees have unlimited soil and will grow to a height of 8m; 5. secondary frontage to Hampton Court Road: a two tiered landscape solution was proposed with 'ti plants' (Cordyline Glauca) growing to 3m at ground level and overspilling podium plantings above. The existing street tree would be retained and would contribute to the landscaped setting; 6. rear setback: Mr Derwent and Mr Kenworthy agreed two Quandongs would replace the Banksia Serrata and could grow to a height of up to 6m in the planter box in the south west corner marked yellow at exhibit E.8 The Applicant proposed a condition of consent in this area in its conditions in reply. This area would otherwise have the benefit of on plantar shrubs and vegetation on adjacent land; and 7. Side setback to 29 Garfield St: as set out in the landscaping plans at L-02 G the podium plantings are a mix of low maintenance (shallow rooted) succulent species including max cook, blue grow and green sticks, growing to a height of 1m. The experts agreed these species would grow to maturity. Otherwise, in relation to this façade, the north elevation plan (A008) shows that the landscape treatment is 'book-ended' by Banskia Serrata (to be replaced with Quandongs) at the rear, and the blueberry ash visible at the front. A 1.8m high fence is below the planter box.

Council's submissions on compatibility, landscaping and streetscape

1. The Council submits that it is clear from the evidence that the proposed development's bulk and minimal side setbacks constrain the landscaping treatment. This in turn causes the proposed development to be incompatible with the local area by removing any opportunity to provide deep soil and plant trees large enough to soften the scale of the building when viewed from Hampton Court Rd and adjoining properties.
2. The Council argues that landscaping is an important contributor to urban character and relies on Mr McDonald's evidence that landscaping "operates to relieve bulk and scale" (Ex 5). While not contending that the DA does not comply with cl 29(2)(b) of the Affordable Rental Housing SEPP, the Council submits that this does not constrain the character analysis required by cl 30A.
3. The Council notes that the Applicant's expert, Mr Dickson, accepted in cross examination that the setback to Hampton Court Rd is of greater visual prominence than the front setback. The Council says that this causes the landscape treatment of this area to be an important matter for the Court's consideration, as is the landscape treatment of the north and western setbacks of the Land given their presentation to and ability to mitigate impacts on adjoining properties.
4. The Council says that, in cross-examination, the Applicant's landscape expert, Mr Derwent, gave evidence that Hampton Court Rd was characterised by mature trees and accepted that there are currently no cascading plant walls on Hampton Court Road or Garfield Street. It also relies on the evidence of its own landscaping expert, Mr Kenworthy, (Ex 6) that 'the properties surrounding this development have deep soil zones capable of supporting large significant trees'.
5. Finally, the Council submits that, having regard to this evidence, the Court would find that the landscaped treatment of the proposed development is not compatible with the local area.

Applicant's submissions in reply on compatibility, landscaping and streetscape

1. In its submissions in reply the Applicant argues that the proposed trough planting of bamboo offers a practical and pragmatic solution to improve the side planting on the north elevation to further mitigate the concerns raised by Mr McDonald about visual impacts.

Findings on compatibility, landscaping and streetscape

1. I do not accept the Applicant's submissions on the relationship between cll 29 and 30A of the Affordable Rental Housing SEPP. Clauses 29 and 30A must each be given work to do. While compliance with the numerical standards set out in cl 29(2) precludes a consent authority from refusing development consent because a DA does not comply with one of those standards, cl 30A imposes an additional consideration in relation to the compatibility of the design of the proposed development with the character of the local area. Compliance with the numerical standards in cl 29(2) does not of itself mean that the design of the proposed development is compatible with the character of the local area within the meaning of cl 30A.
2. This finding is consistent with several previous decisions of the Court dealing with the relationship between cll 29 and 30A. In Gregory v Central Coast Council [2017] NSWLEC 1400, Dixon SC said (at [19]) that: "...it does not follow that compliance with the standards referred to in cl 29 requires density, floor space and height to be disregarded for the purposes of a consideration of the 'design of the development' required under cl30A."
3. In Elcheikh, Gray C said (at [40]) that: "[The ARH SEPP] also requires that the consent authority consider compatibility with the local area (cl 30A), but does not set out a framework of objectives, standards and design principles for local areas, as the [relevant LEP and DCP] do. The mere fact that there is compliance with the standards in cls 29 and 30 does not mean that the proposal is compatible with the local area in accordance with cl 30A."
4. More recently, in Qian v Willoughby City Council [2020] NSWLEC 1069, Horton C said (at [29]): "I also consider it entirely possible for a proposal to comply with the numerical controls of cl 29(1) and (2), and to simultaneously offend the character test in cl 30A. Consider a proposal that complies in every respect with the provisions at cl 29, but appears as an unrefined dull box set within a local area defined by richly detailed historic buildings. Or the inverse, where an applicant proposes an historical pastiche in a local area characterised by innovative and contemporary design."
5. I have concluded that while the DA cannot be refused on the ground that the landscaping in the front setback area is inadequate, it is relevant to consider the overall landscaping treatment proposed in considering whether the design of the proposed development is compatible with the local area under cl 30A. I do not agree with the Applicant that compliance with the landscape control in cl 29(2)(b) means that the overall "landscaped area" is necessarily within character for the purposes of cl 30A.
6. While I accept that, to be compatible, the proposed landscaping treatment does not have to be the same as that existing elsewhere in the local area, I have decided that that the proposed "green ring" of cascading plants and the minimal landscape treatments on the rear setback and the side setback with 29 Garfield St would not be "in harmony" with the landscape character of the development in the local area, both now and into the future. In this regard I accept the evidence of Mr McDonald that the landscape character of the development in the local area, both at present and into the future, is one that contains canopy trees within wide areas of building separation. The podium plantings in the side setback to 29 Garfield St, in particular, which comprise a mix of low maintenance, shallow rooted, succulents species growing to a height of 1.0 m, will do nothing to ameliorate the visual impact of the proposed 5 storey wall on the adjoining development at 29 Garfield St. I have also concluded that the proposed trough planting of bamboo proposed by the Applicant would not materially improve the impact of the proposed development on this boundary.

Conclusion

1. Clause 30A of the Affordable Rental Housing SEPP provides that a consent authority must not consent to development to which the clause applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. For the reasons given above, I have concluded that the design of the proposed development is not compatible with the character of the local area.
2. My finding of incompatibility is not of itself fatal to the granting of consent to the DA. However, the duty to consider compatibility imports an obligation to give "proper, genuine and realistic consideration" to the matter: Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 (at 292); Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 at [43]; Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54 (per Macfarlan JA at [117] and Sackville AJA at [125].
3. In exercising my discretion under s 4.15(1)(a)(i) of the EPA Act, I am required to give consideration to the provisions of any environmental planning instrument that applies to the Land. Clause 30A of the Affordable Rental Housing SEPP expressly requires consideration to be given to whether the design of the proposed development is compatible with the character of the local area. In my view, while not determinative, the provisions of cl 30A are "so directly pertinent" to the DA as to be entitled to "significant weight" and to be considered as a "fundamental element" in or a "focal point" in the determination of the DA: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (at [75]).
4. Adopting that approach, in my view cl 30A adds an important additional layer of consideration to the evaluation of a development application made under the relevant provisions of the Affordable Rental Housing SEPP. In addition to compliance with the relevant development controls, consideration must also be given to whether the design of the proposed development is compatible with the character of the local area. For the reasons given earlier in this judgment I have found that the design of the proposed development would be incompatible with the character of the local area because: 1. It would have an unacceptable visual impact on the adjoining property at 29 Garfield St; 2. The proposed side setbacks are so different from those provided by other development in the local area that the proposed development will not exist in harmony either with the existing or future buildings around it or the streetscape character of Garfield St and Hampton Court Rd; and 3. The proposed "green ring" of cascading plants and the minimal landscape treatments on the rear setback and the side setback with 29 Garfield St are not "in harmony" with the landscaping treatment commonly found in other developments in the local area now and likely to be found in new residential flat building development in the future.
5. I have concluded that the proposed development is in these respects fundamentally incompatible with the character of the local area such that development consent should be refused.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application No. DA2020/0133 for the demolition of an existing single storey brick and tiled roof dwelling house and associated structures and the construction of a five (5) storey boarding house comprising 23 rooms (including a manager's room) on the land described as Lot 1 DP 951678 and known as 31 Garfield St Carlton is refused. 3. The exhibits are returned with the exception of Exhibits A, B, J, L, 1 and 10.

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