EACT Pty Ltd v Canterbury-Bankstown Council

The site

1. The site is a rectangular shape, oriented east-west, and covering a total area of 614.3m2. The site is currently occupied by a single storey brick and tiled roof residential dwelling, with a detached garage at the rear of the site.
2. The site is located on a corner lot that has frontage of 14.1m and 43.6m to Park Street (forming the eastern boundary, primary frontage) and Evaline Street (forming the northern boundary, secondary frontage), respectively. The western and southern boundaries of the site adjoin existing residential dwellings, a single dwelling to the west and a two-storey residential flat building (21 Park Street) to the south.

The issues for the Court's consideration in this appeal

1. In consideration of the amended plans and supporting documents relied on in this appeal, the Council's amended contentions for the Courts consideration, as provided in the Statement of Facts and Contentions (SoFC), dated 30 March 2020 are agreed as:

• overdevelopment and unsuitability of the site;
• inconsistency with character and streetscape;
• insufficient landscaping treatment (within setbacks);
• excessive bulk and scale;
• insufficient communal open space for communal area (CoS) and private open space (PoS) for the manager;
• not demonstrated limitation for site amalgamation;
• insufficient setbacks;
• unacceptable amenity impacts (solar access) to adjoining properties;
• inadequate amenity for lodgers with inadequate accommodation room size for double rooms;
• insufficient car parking spaces for 20 boarding rooms, reliance on car share, non-compliant access ramp and inadequate access to/from accessible space;
• inadequate Plan of Management (PoM);
• inaccurate or insufficient information for BASIX certificate, and reports for Building Code of Australia (BCA) and accessibility; and
• undesirable precedent and not in the public interest.

1. Due to the large number of interwoven issues, these contentions are assessed and grouped together in the judgment below, primarily based on planning, traffic/engineering and legal aspects of the appeal, as presented by the experts.
2. Before judgment was reserved, the Court made directions for the parties to amend conditions of consent as agreed by the parties to resolve some of the contentions, namely the driveway ramp. This information was filed with the Court on 12 June 2020, and the Court therefore focuses its attention on the contentions as pressed.

Relevant planning controls

1. The requirements of s 4.15(1) of the EPA Act are relevant for the Court's consideration and must be satisfied for the grant of the DA under appeal.
2. With regards to the proposed development as a boarding house, the provisions as set out in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) are relevant for the Court's consideration, and in particular, cll 29, 30 and 30A, which are in contention.
3. Clause 29 of the SEPP ARH provides standards for the Courts consideration, with those in contention emphasised in bold italics, below: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area) - (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if - (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
4. At cl 30, the SEPP ARH provides standards which are determinative, whereby the consent authority, in this appeal the Court, must not consent to development unless these standards are met, with those in contention emphasised in bold italics below: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following - (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
5. The proposed development must also satisfy the character provision to grant consent to the DA, as specified in cl 30A of the SEPP ARH, below: 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 site is located within an R4 High Density Residential zone, as identified in the Canterbury Local Environmental Plan 2012 (CLEP). The proposed development is permissible by consent in this zone, and contentiously achieves the objectives established in cl 2.3, as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
7. It is acknowledged that the CLEP was amended and commenced on 20 September 2019, hereafter referred to as Amendment 16. This DA is now caught by the savings provision in cl 1.8A, below: 1.8A Savings provisions relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. … (2) A development application made (but not finally determined) before the commencement of Canterbury Local Environmental Plan 2012 (Amendment No 16) for development on land to which that Plan applies is to be determined and have effect as if that Plan had not been made.
8. There is no contention that the relevant numeric development standards of the CLEP that was current at the time of DA lodgement are not satisfied. However, Amendment 16, and specifically cl 4.1C, which is a new clause that relates to lot size and frontage for boarding house development, is an issue of contention between the parties.
9. In consideration of the DA under appeal, the parties draw the Court's attention to the controls of the Canterbury Development Control Plan 2012 (CDCP), specifically those relating to: boarding houses; setbacks; building bulk; and landscaping. The parties agree that the CDCP (Amendment 3) was current at the time of DA lodgement, and that the CDCP was subsequently amended (Amendment 5), that commenced on 20 September 2019.

Evidence

1. The Court heard from the following experts in written and oral evidence at the hearing:

• Planning - Mr Garry Chapman for the applicant; and Ms Haroula Michael for the respondent.
• Traffic - Mr Richard Jones for the applicant; and Mr Raj Rajakumar for the respondent.

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

1. The contention as posed by Council relates to its assessment of an inconsistency of the proposed development, as designed, with the character of the local area. In essence, the issue revolves around whether the development presents in harmony with the streetscape and is visually compatible with other existing residential developments in the (R4) zone. The proposed landscaping, setbacks and building depth/articulation are all features that the parties seek the Court to consider, as they relate to consistency with the local character.
2. The planning experts agree that the local area around the site is defined between Duke Street (west), Gould Street (east), Redmond Street (south) and South Parade (north). The local area all falls within the R4 zone.
3. According to Mr Chapman, the character of the local area is of medium density residential developments, with built form predominantly as three to four storey residential flat buildings (RFB), with limited landscaped area in the front and rear setbacks, due to hardstand, structures and driveways. He explained that there are many properties in the area where the front setback includes built structures such as letterboxes, waste storage and solid brick fencing.
4. In contrast, Ms Michael considers that the local area is characterised by predominately two to three storey RFB's with some single storey residential dwellings, larger setbacks along Park Street, reasonable sized landscaping in the front setbacks with trees and grass, and pitched, tiled roofs.
5. The experts agree that there are a number of corner lots in the local area, which present with their side boundary to Evaline Street (being the longer frontage), although some also adopt the main resident entry from Evaline Street.
6. Without a site visit, I must rely in my assessment on the expert's submissions and the photographs of the local area, tendered in evidence. I observe from the photographs that the local area is dominated by RFB's, which appear as older stock, brick style, often with podiums elevating the building above the ground. RFB's are generally two to three stories with small solid brick balconies protruding into the front setback and with pitched, tiled roofs. There are a limited number of dwelling houses scattered around the area, which are generally single storey, of variable, older style.
7. I also note that the front setback in the local area is generally landscaped with grass and limited trees, although driveways, solid brick fences, letterboxes and waste bin storage is common within the front setback of the older RFB's, as was the style of this period of development. In particular, the RFB's at 21 and 23 Park Street, directly south of the site appears reflective of this older style development, which I consider is a common feature of the existing character of the local area.
8. Newer developments in the local area are fewer in example, such as at 18-20 and 22 Park Street, and are more reflective of the emerging, future character for the zone. These tend to be RFB's of three to four stories, with more expansive landscaping, generally without fencing in the front and side setbacks. I note that structures such as letterboxes are still a feature in the front setback, and the tiled pitched roof is common.
9. The SEPP ARH and CLEP are generally unhelpful in describing what weight should be applied to the future, desired character of a local area, as opposed to the existing character. Therefore, both existing and future, desired character are relevant for the Court's consideration in this appeal.
10. There was considerable discussion between the experts in defining the established and 'characteristic' setback along Evaline and Park Streets. Setbacks, as observed and provided for in the controls, are an important consideration in defining the character of the local area. The elements of consideration relied on by the experts include the variability/consistency in depth of setbacks, presence of structures in the front setback, relationship to adjoining properties and landscape treatment of the front setback.
11. The experts agree that for RFB's in the local area, including those on corner lots, the side setbacks to Evaline Street typically range from 2 to 4m. Single storey dwelling side setbacks are between 1 to 2m. In contrast, front setbacks along Park Street, which generally form the primary frontage, range between 4 to 6m. I observe from the aerial photographs tendered in evidence, more consistency in the front setbacks to Park Street. The experts agree that generally the more storied the RFB's, the greater the front and side setbacks. The experts also agree that the front setback to Park Street is established at 6m.
12. The setbacks provided in Amendment 3 of the CDCP, at the time of DA lodgement are described in C4.3.2.3, and in the amended CDCP, Amendment 5, are described in C7.3.2. The experts agree that the setbacks in these versions of the CDCP differ only in the numeric control of the side setback.
13. The setback objectives, numeric front setback control (of 6m) and front/rear deep soil landscape (of 5m), are comparable between the amended versions of the CDCP. However, Amendment 3 of the CDCP establishes a side setback of 4m with a 'minimum width of deep soil', whereas Amendment 5 is more specific, and requires for a boarding house, on a corner lot, in an R4 zone a side setback to be 5.5m, with a minimum 2m deep soil zone.
14. In assessing compatibility with the local area character, cl 29(2)(b) of the SEPP ARH, is relevant for the Court's consideration. The presentation of the boarding house is influenced by the landscaped treatment of the front setback, which relates to the streetscape.
15. The experts agree, and I concur that the proposed development does not numerically attain any of the established setbacks, as provided by in Amendments 3 or 5 of the CDCP, without built structures including planter boxes and basement.
16. The proposed development does attain a 6m front setback to the building line, however the basement, manager's PoS and retaining walls with planter boxes all protrude into the (6m) front setback, thereby reducing deep soil to a maximum width of 4.5m. The proposed side setback to the building line on the southern side of the site (adjacent to 21 Park Street) has a minimum of 1.67m setback, with no deep soil for most of the building length, due to the basement extending to the boundary. The northern side setback, along Evaline Street is a minimum of 2m to the building line, with a deep soil zone of minimum 1.5m along most of the building length. The rear setback to the building line is 7.5m, however within this setback is the driveway, which occupies the majority of the (rear) setback.
17. Mr Chapman argues that the proposed reduction in the numeric (building) setbacks and deep soil zones are compensated by planter boxes that provide appropriate landscaping and a building articulation that together effectively reduce the perceived bulk and scale of the building.
18. Ms Michael contends however that the insufficient (building) setbacks and deep soil zones result in a development that is bulky and uncharacteristic with the streetscape.
19. I concur with Ms Michael. It is accepted by both experts that the proposed development is numerically non-compliant with the setbacks and deep soil zone requirements, as established in the CDCP. I find as a consequence these reduced setbacks and the proposed landscape treatment within the setbacks does not satisfy the setback objectives (in C4.3.2.3 of the CDCP). Specifically, I consider that the proposed development does not: establish desired spatial proportions with the street, both to Park and Evaline Streets; provide sufficient separation between buildings, particularly to 21 Park Street; or establish compatible bulk and scale or streetscape. It limits the landscaped treatment in the setback due to the extent of the basement (and driveway) extending into the front, rear and side setbacks.
20. The massing of the building and basement structure towards the southern side of the site does not provide sufficient building separation between the site and the existing RFB at 21 Park Street. Based on the evidence before me, I observe that some apartments in the adjoining RFB at 21 Park Street will have their living/bedroom areas and balconies looking directly onto a long (up to 17m) and tall (three stories) brick wall that in parts is only 1.67m from the site boundary. The minimal extent of the proposed recesses along the (southern) side of the proposed building, reliance on planter boxes for landscaping and lack of appropriate articulation, results in an increase to the perceived bulk and scale of the proposed building on the site.
21. The experts relevantly took the Court to the CDCP at C4.3.2.4, for the objectives and controls for building depth, and which help inform the future, desired character of the local area. Control C2 requires a building depth of less than 25m, although in an R4 zone may adopt a 35m building depth, if there is sufficient deep soil in setbacks for canopy trees. The building depth of the proposed development is agreed by the experts to be at least 27m, and therefore to comply with control C2, relies on deep soil zones to provide space for canopy trees to grow, which are described as requiring a 6m x 6m dimension. It is agreed by the experts that the proposed development relies on planter boxes for substantial plantings and does not provide a deep soil dimension of greater than 4.5m width in any of the setbacks on the site.
22. There was no expert evidence provided to the Court on landscaping and specifically the volumetric requirement for deep soil to support canopy trees. Therefore, the Court must rely on the relevant CDCP controls, the landscape plan (Exhibit B) and Council's landscape architect response (to the landscape plan) to inform itself on the realistic potential for canopy tree/s to grow within the proposed front/rear and side setbacks. The experts agree however that landscaping is an important feature, which helps define the character of the local area.
23. Upon review of the proposed design, it is apparent that there is insufficient deep soil zone in the setbacks to accommodate a (medium sized) canopy tree. The deep soil zone in the front, rear and side setbacks all fail to achieve 6m x 6m in dimension, which is indicated in the CDCP as appropriate. In particular, there is no deep soil provided along the southern boundary of the site, where the potential impact from the building depth is most significant and likely to impact adjoining residents. A canopy tree would help soften the bulk and scale of the southern building wall. The applicant relies almost solely on planter boxes along the southern boundary, which according to the landscape plan (Exhibit B) provide for hedging plants up to 6 m height, and no canopy trees.
24. Further to this, based on the photographs tendered in evidence (Exhibit 9), it is apparent that the length of the southern boundary of the site, and therefore the proposed southern building wall will be visible in the streetscape (from Park Street), when viewed along the northern driveway of 21 Park Street. The visual presentation of the building from this perspective will appear as an extensive, poorly articulated brick façade that dominates the streetscape. I find this is uncharacteristic of the local area.
25. I also find that there are insufficient deep soil zones proposed around the site and a heavy reliance on planter boxes to accommodate landscaping in the front and side setbacks. The rear landscape is dominated by a driveway. The proposed landscape solution does not provide sufficient relief to the bulk and scale of a three-storey boarding house in the streetscape, nor provide a landscape treatment characteristic for the local area. I consider that the insufficient sized setbacks and deep soil zones will unlikely to promote canopy tree growth and are not sufficient to soften the bulk and scale of the proposed building to the streetscape.
26. Although, I recognise that there is a diversity of landscape treatment in setbacks across the local area, I find that the proposed landscape treatment on the site overall is uncharacteristic of the local area. The proposed development does not satisfy cl 29(2)(b) of the SEPP ARH.
27. Based on my assessment of the plans relied on for the DA, I consider that the reliance on the driveway at the rear of the site, together with an extensive basement, results in a development that projects further into the front and side setbacks than would otherwise be required. The 7.5m rear setback required for the driveway, results in a building and basement that minimises the setbacks and landscaping treatment opportunities on other sides of the site. Therefore, I find that the design of the building results in a boarding house that is incompatible with the character of the local area. It is also noted, that the applicant's proposed response to the contention that relates to driveway curvature (Exhibit K), explored in detail below, results in further incursion into the rear setback and therefore further reduction in deep soil landscape opportunity.
28. I am not satisfied that the controls, specifically C2(a) and (b) in C4.2.24, of the CDCP are achieved. The intent of the (building depth) control is to achieve objective O2, which is agreed between the experts to assist in character definition in the R4 zone. I find this objective is not satisfied, and therefore the proposed development is not of a scale that is visually compatible with the adjacent buildings, streetscape or the character of the local area.
29. Based on the evidence before me and my assessment, I find that the proposed development is not in character with the local area, because the proposed setbacks have insufficient deep soil or appropriate landscaping, particularly for canopy trees, and results in an incompatible bulk and scale as it presents to the streetscape. The proposed building depth, with minimal articulation and windows along the southern boundary, results in a long, high brick wall along the (southern) building face, that is incompatible with the adjacent building (being 21 Park Street).
30. I find that the proposed development is inconsistent with the existing and the desired, future character of the local area, and therefore does not satisfy cl 30A of the SEPP ARH. On this basis, I find that the DA does not comply with s 4.15(1)(a)(i) of the EPA Act and the DA under appeal must be refused.

Is the parking provision of the proposed development sufficient, safe and functional?

1. As explained in the SoFC, the Council contends that the parking and traffic related issues that remain for the Court's consideration include: insufficient onsite parking; reliance on a car share arrangement to supplement required parking spaces; incompatible traffic movement in basement related to accessible space (1); and dimensions of driveway ramp.
2. The relevant parking space requirements for the boarding house are outlined in cll 29(2)(e)(iia) and (iii) of the SEPP ARH, as follows: (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,
3. The experts agree that the proposed 20 room boarding house will not be undertaken on behalf of a social provider and includes a managers room. Therefore, according to cll 29(2)(e)(iia) and (iii) of the SEPP ARH, a total of 10 parking spaces is required to be provided on the site, of which one space should be designated for a manager. The experts also agree that the proposed development designates nine (9) parking spaces onsite, which includes one space to be dedicated as a car share (identified as space 3), one space for the manager and two accessible spaces (identified as spaces 1 and 2).
4. The experts disagree that the proposed provision of 9 spaces for car parking on the site is sufficient to meet the needs of the residents and that a car share space adequately compensates for the deficiency of the one car space required by calculation of cl 29(2)(e)(iia) of the SEPP ARH.
5. With regards to the proposed reliance on a car share arrangement, Mr Rajakumar states that the car share is not an appropriate solution to the car space deficiency and that the Council does not recognise car sharing arrangements in the CDCP.
6. Mr Jones however, contends that the provision of a car share space in lieu of the deficient car space, is: consistent with the intent of cl 29(2)(e)(iia) of the SEPP ARH; appropriate and reasonable, because it relates to the likely requirements of the potential clientele of the boarding house. His assumptions rely on accessibility to public transport, financial constraints of boarders to own a car, and that car use will not be the most preferred form of transport for boarders in this area. Mr Jones refers to an occupant survey study for boarding houses undertaken by the University of New South Wales (Exhibit 12) and the Council's 'Connective City 2036' Strategy (Exhibit N) to inform his rationale that a car share space is an appropriate replacement to the deficient parking on the site.
7. Mr Jones explained to the Court that the proposed car share space is designated in the PoM as space (3). The PoM also provides details on the function of the car space arrangement.
8. Mr Rajakumar contends the PoM is of insufficient detail to provide a framework for the reliable functioning of the car share arrangement for the boarding house.
9. I agree with Mr Rajakumar that the requirements of cl 29(2)(e)(iia) of the SEPP ARH, which identifies 10 car parking spaces for the 20 room boarding house, are relevant and appropriate to be applied for the proposed development. I disagree with Mr Jones that there is sufficient evidence provided on the demographics of the residents of the boarding house which would indicate that a car share space is a reasonable alternative to the required 10 car parking spaces on this site.
10. Based on the evidence before me, I am not convinced that the proposed nine car parking spaces, including a car share space as proposed, results in a functional parking arrangement. I am also not convinced that the residents of the boarding house would not seek to own a car, and that residents of the boarding house would prefer to rely on a car share arrangement to meet their needs. No local area specific traffic studies or relevant resident surveys have been provided in evidence that justify the reliance on the car share arrangement as a reasonable alternative to a compliant parking provision on this site. There is no evidence provided of how often a car share arrangement would be used or how many residents would rely on the car share. No traffic surveys have been provided in evidence which indicate that on-street parking is sufficiently available should boarding house residents seek to own more cars than can be allocated on the site. The consequence of the provision of insufficient parking on the site is potential amenity impacts to residents in neighbouring developments, as raised as an issue for the resident objector.
11. I am not convinced by Mr Jones' logic or evidence that residents of the proposed boarding house would not utilise the additional parking space on a compliant development. The limitation of the parking space and reliance on a car share arrangement are a consequence of the proposed design of the building and basement. I consider that a parking compliant development could function on this site with a different building design.
12. Mr Rajakumar agrees that the proposed amendment of the curvature of the driveway (Exhibit K), the removal of the waiting bay in the basement with traffic signalling (by condition of consent) and the change to the intersection of the driveway into the basement (Exhibit L), satisfies the relevant requirements of Australian Standards 2890.1:2004 Part 1: Off street car parking (AS 2890.1), specifically section 2.5, and that these relevant contentions are resolved.
13. The experts however disagree whether the swept paths in the basement, showing the movement of a car from the accessible space (1) through the aisle to the driveway, is safe and functional, and complies with AS 2890.1, specifically section B4.8 for parking in a residential car park.
14. Mr Rajakumar states that the location in the basement, the aisle width and size of the accessible space (1) results in potentially unsafe movements for a car entering and exiting this space. He contends that a car manoeuvring into and out this space would impinge on the lift access zone, which is unsafe, and would be unable to turn without conflict with the lift walls and the ramp structure. He considers that the purpose of relying on the AS2890.1 is to ensure safety and functionality for a development.
15. Mr Jones however considers that the size of the accessible space and aisle width are sufficient and compliant with AS 2890.1, and that manoeuvring out of and into the accessible space can be achieved in a safe manner. He relies on the experience of the driver to make the appropriate manoeuvres, although agrees that there may be some transgression into the lift access zone.
16. The experts agree that they have adopted different models to demonstrate swept paths, which may account for some discrepancy in the results. Based on the evidence before me, I agree with the swept paths provided by Mr Jones as being those that more realistically demonstrate the likely movements for a car utilising the accessible space (1). I accept that a car can functionally use the accessible space (1), although agree with Mr Rajakumar that the number of movements are likely to be more than three. I find the swept paths for accessible space (1) show consistency with section B4.8 of the AS 2890.1, as 5-point turns are permitted where required.
17. I accept the evidence of the experts that there may be a small transgression of a car utilising accessible space (1) into the lift access zone. I do not however accept that it is sufficient to rely on 'driver experience' to ensure safety. To satisfy the Court with regards to pedestrian safety, a bollard would be required to be positioned on the south-western corner of the lift, by a condition of consent.
18. Based on my assessment of the evidence, I find that the proposed development does not comply with cl 29(2)(e)(iia) of the SEPP ARH, and that although this issue as it relates to parking does not cause the development to be refused on its merits alone, it does suggest to the Court that the site is not suitable for the proposed development, is an overdevelopment and therefore does not satisfy s 4.15(1)(c) of the EPA Act.

Is the proposed double room size adequate?

1. The Council contends that some of the proposed double rooms are of inadequate size, as shown in the amended plans, because the space provided for movement around the proposed private (in room) kitchen facility is not properly excluded from the calculation of room size.
2. The relevant accommodation size requirements for a boarding house are described in cl 29(2)(f) of the SEPP ARH, as follows: (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case.
3. The Council therefore considers that the number of residents/lodgers proposed is excessive because some of the proposed double rooms are of insufficient size. The Council relies on the fact that the area around the kitchen facility should be fully excluded from the calculation of the room size, pursuant to cl 29(2)(f) of the SEPP ARH.
4. It is contended by Ms Michael that the area used for the purpose of the private kitchen facilities has not been accurately excluded from the room size calculation, and if done so, the relevant double rooms would be of inadequate size, and therefore cl 29(2)(f)(ii) is not achieved. Consequently, cl 30(1)(d) of the SEPP ARH is not satisfied, as the proposed boarding house does not provide adequate kitchen facilities for two lodgers in the (non-compliant) double rooms.
5. Mr Chapman however, argues that the plans accurately reflect the required excluded area used exclusively for the kitchen facility, and therefore, all rooms, including the double rooms are of adequate size. The proposed development satisfies cll 29(2)(f)(ii) and 30(1)(d) of the SEPP ARH. He has not excluded areas adjacent to the private kitchen facilities if they are within the corridor.
6. The amended plans relied on for the DA, in Plans DA 105 and 106 (Exhibit H) show two possible kitchen exclusion area options.
7. Based on the evidence before me and my understanding of the meaning of cl 29(2)(f) of the SEPP ARH, I agree with Ms Michael that a number of the proposed double rooms are of inadequate size.
8. The plans appear to take a variable approach to excluding the area adjacent to the private kitchen facilities when calculating the room size. For some rooms, the area across the full extent of the kitchen facilities are excluded, and in other rooms where the size is marginal as a double room, only part of the area in front of the kitchen facilities are excluded. I do not accept Mr Chapman's response to this discrepancy in defining the exclusion areas is because of the kitchen location in a corridor.
9. It is apparent that if a consistent exclusion area in front of the facilities for private kitchen use is made, then a number of the rooms are of insufficient size for a double room, as required in cl 29(2)(f)(ii) of the SEPP ARH. I understand that the exclusion area is intended to allow free movement in the kitchen area, both for functionality and safety. Therefore, the number of residents for the rooms deemed of inadequate size, is excessive.
10. I find that the proposed development does not satisfy cl 29(2)(f)(ii) of the SEPP ARH, and consequently the DA does not satisfy cl 30(1)(d) of the SEPP ARH. On this basis, the DA cannot be granted consent.

Is there an amenity impact to neighbouring development?

1. The contention as raised by Council in the SoFC relates to the potential impact and sufficiency of solar access for residents in the adjoining property at 21 Park Street, and particularly the north facing living areas and balconies on the ground floor.
2. The experts agree that the amenity requirements of internal (for boarding rooms) privacy and solar access are satisfied. The relevant solar access provisions of the SEPP ARH are described in cl 29(2)(c), and which the parties agree are not in contention.
3. The experts also agree that the amenity requirements of privacy and solar access are not adversely impacted for apartments on the first floor and the (bedroom) balcony on the north-eastern ground floor corner of 21 Park Street.
4. The parties refer to the relevant control for the Court's consideration as it relates to solar access for adjoining properties in C4.3.1 of the CDCP. It is noted that there is a variation between the amended versions (3 and 5) of the CDCP, relied on by the experts with respect to the minimum time to ensure sunlight to living areas on neighbouring developments, which has increased sunlight from 2 hours to 3 hours between 9 am to 3 pm at 21 June (winter solstice). However, the control to ensure properties already non-compliant with solar access are not further adversely affected and the objectives for solar access remain consistent between the CDCP amendments. For the purpose of this appeal, the neighbouring property is understood to refer to 21 Park Street.
5. The objective (O1) that relates to building depth, in C4.3.2.4 in the CDCP also refers to the preservation of sunlight to new and existing development, which is relevant for the Court's consideration in this appeal.
6. Ms Michael explains that based on the solar eye view study, provided in evidence (Exhibit A) and the joint planning expert report (Exhibit 4), the living areas and associated balconies on the north facing ground floor apartments at 21 Park Street are potentially detrimentally impacted with regards to solar access, due to the close proximity of the proposed development with a non-compliant side setback. She considers that existing solar access to the living areas in dispute is not fully understood based on the evidence provided, however by her estimation these areas will only receive solar access for 1 hour, between 8 and 9 am on the winter solstice, as a result of the development and therefore does not comply with the relevant CDCP control and objectives (in amendments 3 and 5). She draws the Court's attention to the existing development on the site as a single level dwelling.
7. Mr Chapman however considers that the existing lack of solar access and potential future loss to the north facing living areas on the ground floor apartments of 21 Park Street are a function of the orientation of the building rather than a consequence of the proposed development or reduced setback on the southern boundary of the site. He considers that a height and setback compliant building on the site in the R4 zone would not ensure solar access compliance to these living areas.
8. I find that the Court has not been provided with sufficient evidence to determine the existing solar access to the habitable areas on the northern side of 21 Park Street, the potential for loss of solar access, nor what the solar access would be for a setback compliant building on the site. Therefore, it is not possible for the Court to determine whether there is any detrimental impact to solar access to the neighbouring development (21 Park Street) from the proposed development or whether 'existing' levels of sunlight are retained, preserved and not reduced. The burden of proof is on the applicant to provide this information and evidence to support its position. Based on the evidence before me, I find the objectives for solar access (O1 to O3) and building depth (O1), as described in the CDCP are not proven.
9. I am unable to be satisfied that there is no unacceptable amenity impact to the neighbouring development of 21 Park Street from the proposed development, particularly whether the non-compliant side setbacks cause any detrimental impact. I am not satisfied that the proposed development complies with the relevant provisions of the CDCP, and therefore I find that upon consideration the DA does not achieve s 4.15(1)(a)(iii) of the EPA Act.

BASIX

1. The contention as raised by Council in the SoFC relates to a BASIX certification relied on by the DA that does not relate to the proposed development as amended.
2. The parties agree and I am satisfied that this contention is resolved by the provision during the hearing of the amended BASIX Certificate (Exhibit G), which satisfies the requirements of the State Environmental Planning Policy-Building Sustainability Index (BASIX) 2004. The Court notes that an amended BASIX certificate was provided to Court after the hearing and dated 1 July 2020.

Weight to be applied to a newly amended CLEP, particularly provisions for minimum lot size and frontage for a boarding house in an R4 zone

1. The contentions require me to turn my mind to the appropriate weight the Court should apply to the newly amended CLEP, hereafter referred to as Amendment 16.
2. The timeframe as it relates to the DA under appeal and Amendment 16 is as follows:

• DA lodged with Council - 3 December 2019
• Draft planning proposal seeking amendments to CLEP and CDCP exhibited - 11 December 2018 to 1 February 2019
• Notification of DA to residents - 27 March 2019
• CLEP (Amendment 16) commenced - 20 September 2019

1. The parties agree that Amendment 16 has a savings provision in cl 1.8A, although the weight to be applied to the new provision, cl 4.1C as it relates to boarding houses in the Court's determination is in dispute between the parties.
2. It is agreed by the parties that if the new provisions of Amendment 16 are given sufficient weight in assessment of this DA, the effect would be to prohibit a boarding house development on the site due to insufficient lot size and frontage, pursuant to cl 4.1C, as follows: 4.1C Minimum lot sizes for boarding houses (1) The objectives of this clause are as follows - (a) to ensure that lots for boarding houses are of sufficient size to accommodate boarding houses, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to minimise any likely adverse impact of the development on the amenity of the area, (c) to require the consolidation of 2 or more lots, where an existing lot is inadequate in terms of its area or width. (2) Despite any other provision of this Plan, development consent must not be granted to development for the purpose of a boarding house on a lot in a zone specified in Column 1 of the table to this subclause unless - (a) the area of the lot is equal to or greater than the area specified for that zone in Column 2, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that zone in Column 3. (3) In this clause - front building line means - (a) for a lot that has only one road frontage - the line the consent authority is satisfied is the minimum setback a building should be from the road alignment, or (b) for a lot that has more than one road frontage - the shortest of the lines (excluding an access handle or right of way for access) that can be calculated under paragraph (a).
3. The experts agree that pursuant to cl 4.1C in Amendment 16, the lot size and frontage for a boarding house development in an R4 zone requires 1000m2 and 20m, respectively. The experts also agree that the site of the proposed boarding house has a lot size of 614.3m2 and a frontage (along Park Street) of 14.095m. Therefore, pursuant to cl 4.1C, the site is currently (without amalgamation) of insufficient size for the proposed development as a boarding house.
4. There is no dispute between the parties that Amendment 16 was the subject of public consultation and proper notification to the consent authority, and therefore is properly made. There is also no dispute that Amendment 16 has commenced and was done so after the DA under appeal was lodged with Council. The dispute between the parties lies in whether Amendment 16 is a 'proposed instrument' for the purpose of the Court's consideration of this appeal, pursuant to s 4.15(1)(a)(ii) of the EPA, as follows. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - … (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and …
5. In support of the respondent's position, Mr Seton relies on Pepper J's decision in Maygood Australia Pty Limited v Willoughby City Council [2013] NSWLEC 142 and Spigelman CJ in Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289. Mr Pickles SC however, relies on the decision of Dixon C in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 (Alamdo judgment).
6. The parties agree that based on the date of DA lodgement with Council although not determined, was prior to the commencement of Amendment 16, and therefore the savings provision of cl 1.8A is applicable. The DA is assessed by the Court as if Amendment 16 had not been made.
7. Mr Seton however advocates that due to the timing of the commencement of Amendment 16 and the lodgement of the DA, which is still undetermined, Amendment 16 should be considered as a 'proposed instrument', rather than one that has been made, which is consistent with the purpose of s 4.15(1)(a)(ii) of the EPA Act. Therefore, cl 4.1C should be given some weight in the determination of the DA under appeal.
8. Mr Pickles argues that the savings provision, cl 1.8A(2) in Amendment 16 is explicit and requires the DA to be assessed as if Amendment 16 does not exist. In addition, because Amendment 16 is no longer a 'draft instrument', it cannot be considered as proposed for the purpose of the Court's consideration, pursuant to s 4.15(1)(a)(ii) of the EPA Act. Therefore, cl 4.1C in Amendment 16 has no work to do in the determination of the DA under appeal.
9. In order to understand the parties' competing submissions and to determine the appropriate weight to be applied to the newly formed provision in Amendment 16 that is in dispute between the parties, specifically cl 4.1C, an interpretation of the savings provision in cl 1.8A is required.
10. In determining the issue at hand, the Court must address two relevant questions. Firstly, what is the purpose of cl 1.8A as a savings provision in the newly commenced CLEP (Amendment 16)? And secondly, is Amendment 16 to be considered a 'draft instrument', as required in s 4.15(1)(1)(ii) of the EPA Act, and therefore should weight be given to cl 4.1C in determining the DA under appeal.
11. Based on the evidence before me, I find that cl 1.8A in Amendment 16 has the effect of instructing the Court, as the consent authority in this appeal, to determine the DA against the CLEP relevant at the time of application, and that being the CLEP operating at 3 December 2018. By adopting the expressed reading of cl 1.8A(2), it is clear to the Court that for this DA, this CLEP was not repealed by the savings provision in Amendment 16, and therefore still operates for this application. Therefore, there is no lot size/width provision specific for boarding houses in this zone, and I find that the DA satisfies the relevant provisions of the CLEP for lot size and width.
12. With respect to consideration of Amendment 16 as a 'draft instrument', I agree with the position of the applicant. The specific and logical terminology of s 4.15(1)(a)(ii) of the EPA Act informs the Court in its determination.
13. The parties accept, and I concur, that Amendment 16 was the subject of public consultation and notification to the consent authority. I consider however that Amendment 16 is no longer a 'proposed instrument' for the purposes of determining the DA before the Court, and as described in s 4.15(1)(a)(ii) of the EPA Act, because Amendment 16 has commenced before determination.
14. The approach adopted by the Court in this appeal is consistent with that determined by Commissioner Dixon in the Alamdo judgment, whom had regard to the exact phrasing of the relevant savings provision. In the Alamdo judgment, a newly amended planning instrument was made before judgment was handed down, and therefore the issue of the savings provision was required to be dealt with by Commissioner Dixon in her decision.
15. The decision made in the Alamdo judgment turns on the actual words adopted in the savings provision (cl 1.8A), which I note are the same as described in cl 1.8A of Amendment 16. Commissioner Dixon's determination relied on the fact that at the commencement of the newly amended planning instrument, the savings provision had the effect of replacing the 'draft' nature of the instrument, and therefore s 4.15(1)(a)(ii), formerly s 79C(1)(a)(i), of the EPA Act had no work to do in the relevant application.
16. At [21] of her judgment, Commissioner Dixon states: "[21] The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration."
17. I however recognise that my evaluation of this issue is not determinative in this appeal, as I have already determined that the DA should be refused on other grounds that relate to inconsistency with character.

Conclusion

1. The proposed development is assessed by the Court, based on the evidence before me, including the DA's (amended) supporting plans, documents, draft conditions of consent, expert reports and photographs.
2. In determining this application, I find that the DA does not satisfy the requirements of the relevant instruments, namely: the EPA Act, specifically subs 4.15(1)(a)(i), (1)(a)(iii), (1)(c) and (1)(e); and cll 29(2)(b), 29(2)(f)(ii), 29(2)(e)(iia), 30A and 30(1)(d) of the SEPP ARH. The reasons for my determination are principally because the proposed development: is not consistent with the streetscape and character of the local area; potentially causes adverse amenity impact to adjoining residences; presents in its design, as an overdevelopment of the site, which makes the site unsuitable; and is not in the public interest.
3. Therefore, DA 517/2018 is refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on an amended BASIX certificate, dated 1 July 2020, amended driveway design plan with swept path movements (Revision B), undated, and acoustic report (version 3), dated 29 May 2020. 2. The appeal is dismissed. 3. Development Application 517/2018, as amended, seeking the demolition of existing structures and construction of a three-storey boarding house of 20 rooms with parking on Lot 120 DP 3846, also known as 19 Park Street, Campsie is refused. 4. The exhibits, except for Exhibits 1, 3, 4, D and H are returned. ……………………. Sarah Bish Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2020