Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095 | Case summary

Compatibility with the character of the local area

Under clause 30A of the ARH SEPP, the consent authority cannot consent to the development of a boarding house under the SEPP "unless it has taken into consideration whether the design of the development is compatible with the character of the local area".
This does not mean that development cannot be granted even if design is incompatible with the character of the local area but requires the consent authority, in this case the Court, to first consider the compatibility issue.
The experts gave evidence on what they considered constituted the local area for the purposes of cl 30A. A plan showing their respective 'local areas' became Exhibit H in the proceedings.
Mr Johannsen initially considered the area only comprised the adjoining sections of Ray Road and Cooke Way being the immediately adjacent streets. However, in evidence, he extended the area which, although still more confined than the area identified by Mr Harding, included Ray Road between Kent Street and Holden Avenue as well as Holden Avenue and Cooke Way.
Mr Harding's area included Mr Johannsen's area but was extended up to two residential blocks further to the north, south and west and for a much larger area to the east to include all of Ray Road almost to Beecroft Road. This aligned with the eastern boundaries of the R2 zone but did not encompass the entirety of this zone which is the dominant zone in Epping.
Mr Johannsen described the character of 'his' area as single lot housing being predominantly older single storey dwellings with a distinctive bungalow character. Lots had well defined front and rear gardens, individual fencing and landscaped settings. He considered the development typically had driveways and carports or garages at grade with the priority generally given to landscaping rather than built form.
In contrast, Mr Harding believed the local area, as he defined it, to be in transition. Whilst predominantly low density residential, it was not just residential in character but there were other uses such as the child care centre in Ray Road relatively close to the site. He argued that new homes had a different shape to what has existed in the past and he noted this was not a conservation area nor an area with a single discernible built form. Rather, there was a range of building elements with garages at and below grade, different styles of windows and varying roof pitches. He noted the child care centre had parking within its front setback. Mr Harding did accept that older single storey dwellings predominated but stated many sites were underdeveloped and there were examples of new 2 storey dwellings including in Cooke Way and therefore in the local area as defined by Mr Johannsen.
Mr Harding did accept that parking below grade was generally limited and there was a predominance of driveways at grades reflecting the topography. However, he noted some properties had been excavated to provide at grade driveways and that the slope of Ray Road was such that, on the northern side, there were many driveways at grade but the southern side differed.
The experts agreed that there was a predominance of landscaping in front setbacks although Mr Harding noted that some properties, such as 92 Ray Road, had at least half their front areas paved, so there were exceptions to the predominant form. He also noted some dwellings had large retaining walls on their boundaries. In summary, as part of the area's transition, possibly as a result of development reflecting complying development, some sites had been redeveloped from modest dwellings into dwellings greater than single storey or even 2 levels.
The Council noted that both of the defined areas had been exempt from State policy requiring increased densities to meet housing targets however, accepted that this didn't mean that existing dwellings weren't being redeveloped. Mr Johannsen agreed that several houses had been upgraded but argued the majority remained older style solid brick single storey dwellings so that the larger dwellings did not dominate. Neither did any development have basement garaging of cars. He did agree however, that there was a wide variety of roof pitches and fairly uniform front setbacks.
Mr Johannsson referenced the Hornsby DCP general objective to encourage high quality development that contributes to the existing or desired future character of the area, with particular emphasis on the integration of buildings with a landscaped setting. In this regard, he accepted that the Council should have regard to future character of the area and that over time more 2 storey development would likely happen. However, he thought it would be substantially less than 100% of the existing dwelling stock. In this regard, both experts agreed that the planning controls will stay largely as they are.
Mr Johannsen argued that the proposed boarding house failed to provide a form of development in keeping with the existing and desired future streetscape and local character. In the Joint Expert Report, he stated that, if the boarding house presented in any significant manner as 3 storeys, as he considered it did, then the proposal was out of character with the predominantly 1 and 2 storey character of the area. He clarified that the reference to 3 storeys was to 3 conventional floors as distinct from two 2 storeys with attic rooms.
Mr Johannsen was primarily concerned that the building would have a visual impact when viewed from the footpath opposite the site and adjacent to the site and would be out of character with the low density residential context in which the site was located.
Mr Harding was of the view that the proposed development would not be out of character with the area as much of the lowest level of the building, which created the third storey element being primarily the basement, would be below ground and there would only be one location where there was any indication of a third storey. That was on the western side of the building. In his opinion, even when looking down the side setback from the footpath, the front section of the building, which is 2 storeys with an attic, will prevail over any point of the building at which there were 3 conventional storeys.
Nevertheless, as a result of this issue being raised during joint conferencing, the applicant had relocated the fire egress path in the amended application to allow further planting at the street frontage and along the western boundary so that it would screen the third storey element from the public domain.
Mr Johannsen agreed that this additional landscaping would reduce visual impact concerns but he did not accept that it would remove them.
In order to determine local character compatibility, the applicant took the Court to Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at paragraphs 22-24 which state as follows: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?
Mr Harding noted that the front setback of the boarding house was consistent with other dwellings in the street and with the likely form of new development that would be achieved through complying development in the area. He argued that the parts of the proposal that were visible from the public domain were not inconsistent with the types of development that could be expected in the area.
Mr Harding also cited the nearby child care centre where there is a car park within the front setback and a form of building different to that which might be expected from a dwelling. He argued that the proposed boarding house sits within this range of different building types and is not so different as to be uncharacteristic of the area.
Mr Johannsen noted there were minimal setbacks or variations to the building when viewed from both the front and sides and this, along with the window configurations, contributed to the building appearing 'alien in its setting'. Furthermore, there were no other basement car parks in the area. Therefore the development was not well suited to its context.
In terms of front setback, Mr Johannsen argued that the proposal differed from typical examples of front yards in the vicinity. It had a large driveway to a basement car park and paved areas which were an anomaly for front yards which typically comprised planted landscaping. This also increased the potential noise impact on neighbours. He accepted the extent of landscaping at the rear of the development was reasonable but considered the rear communal open space did not have good solar access
In response to these concerns, Mr Harding argued that compatibility was not likeness and that a boarding house was not a traditional residential use nor intended to be a dwelling house. In terms of the extent of the driveway dominating the front setback he referenced 25 Cooke Way which was atypical of others in the street and he noted the child care centre had a double width driveway and parking in the front setback. Furthermore, a landscaped area of 20m² had been provided in the front setback, modifications undertaken to provide additional landscaping by relocation of the fire access, and the manager's open space adjoined the front communal open space area which would assist with controlling use of that space.
Mr Johannsson argued that landscaping is not usually used to screen a problem and that the western wall would still be visible walking along Ray Road and from 125 Ray Road. His issue was not so much the building's appearance at the front but at the side including the dormer windows which were an anomaly in the area.
Mr Harding argued that most of the images provided to the Court showed that the building would not be perceived as 3 storeys. He reiterated that a complying development could be two storeys over 3 levels as an attic was not considered to be a storey. In that regard the development would be compatible. He also noted that the images provided did not show a fence but that a 1.8 m high side fence was proposed which would screen much of the offending section of wall.
Mr Harding also argued that, from 125 Ray Road, if the property was developed as a 2 storey dwelling house at grade the neighbour would likely see a 6m high wall plus a roof. The proposed boarding houses was only effectively 1.5 storeys in this location with dormer windows 4.3m from the boundary and would not be visually dominant compared to what complying development could be. He considered the dormer windows to be a minimal element; they were not of sufficient size to be visually intrusive and were a better alternative than a 6m high wall.
In terms of the windows, the Council had no issue with the ground floor windows proposed and it was confirmed that the windows at the first level would be opaque or highlight to protect privacy. It was agreed that one of the windows initially proposed as opaque should be clear to improve solar access as there would be no associated overlooking. The experts agreed the conditions could adequately deal with limiting opaque windows to those where privacy was required whilst other windows should be glass to improve solar access. No other privacy or overlooking issues arose from the amended application.
In closing submissions, Mr Clay advised the Court that the development application in its previous iteration was unacceptable in terms of potential impact on residents but that substantial modifications had been undertaken to address neighbours' concerns. He argued the compatibility test in terms of the local area was not the immediately adjacent neighbours, it was the broader area. He noted that the building materials of the proposed boarding house picked up cues from adjacent buildings and that the building was overwhelmingly 2 storeys and would not appear in the streetscape as 3. Further, the boarding house was not seeking to be the same as dwellings in the area, nor should it, but rather had been designed to be compatible with them and to respect the controls that applied for development in the area.
Mr Clay claimed that the amended application had much to commend it. The height complied with at the 8.5m LEP height control and only at the apex of the roof pitch did it reach this height otherwise it was under it. All of the required standards of the ARH SEPP were met. The only issue was the local character test there were no other merit issues. He argued that there was no perceptible difference in the two local areas defined by both experts other than their extent. In terms of their character, they are in the same residential area and both include some non-residential uses.
Mr Clay considered that the experts had agreed the following in terms of local character: 1. Properties generally have front landscaped setbacks with regular side and rear setbacks although some buildings have retaining walls given the topography as well as paving and/or parking in the front setback. 2. There are examples, albeit limited, of substantial new 2 storey dwellings in Cooke Way however, this is not an area zoned for high density development. 3. As older dwelling stock is redeveloped what exists today as typical, such as totally landscaped front areas, may change. 4. There is no conformity of design in terms of new development. 5. The site is not in a heritage conservation area. 6. The boarding house could coexist at a different density to adjoining dwellings provided that the physical and visual impacts were acceptable in terms of its relationship to its surroundings. 7. The development complied with required setbacks and height and dealt with its relationship to boundaries and neighbours in terms of amenity impacts. The 11m rear setback lined up with the setback to the east and enabled a rear yard as was typical in the area. 8. At issue was the landscaped setting at the front. In this regard, the front setback was halfway between its neighbours.
Mr Clay contended the applicant was using the slope of the land to achieve compatibility by providing screened basement parking in what would still be perceived from the street as a 2 storey building, that a double driveway was not unique even if not common in the area and could not be determinative of character, and some landscaping was being provided in the front setback and along each boundary.
He noted that Mr Johanssen had stated that if the building presented in any significant manner as 3 storeys that would be considered out of character. The applicant strongly argued that the development couldn't be said to present in any significant manner as 3 storeys with the only third storey element largely screened and imperceptible from the street. He argued that front yards had a mixture of hedges, driveways and landscaping and that cl 29(2)(b) was only a ground on which the application could not be refused not a mandatory standard.
In closing submissions, Mr Clay argued that the value of the land was supporting redevelopment which was changing the character from the traditional housing stock that predominated today and that it was just a question of time before the area became somewhat different to how it appeared today. In this regard, the only difference between the experts in terms of the transition of the area was the pace of change not whether or not it would occur as both agreed it was already undergoing change albeit new development did not currently dominate. He noted that past Court judgements confirmed that the application could be approved even if it was incompatible but argued it was not. Finally, Mr Clay argued that the application should not be refused for a small third storey element if that was the sole basis for determining incompatibility under cl 30A which was agreed was the only remaining basis for refusal.
Mr Seymour, counsel for the Council, argued that, even if the application met all of the cl 29 provisions of the ARH SEPP, it still had to meet cl 30A. He took the Court to several authorities on compatibility and what constituted the local area.
Mr Seymour argued that what is typical for the area is older single storey dwellings on single lots with limited 2 storey redevelopment. Another feature was large open front yards. He also argued that people were drawn to the area for the character of the dwellings. In contrast, the proposed development had incongruous elements including a third storey which would be seen. The plans had been amended to screen this third storey element to some degree but this was indicative that it was an issue of concern.
Mr Seymour advised that the Council remained concerned with the large driveway and the excavated garage which did not follow the topography and was atypical of the area. The dormer windows were also uncharacteristic elements in order to allow living areas in the roof. He submitted that the boarding house would be incompatible in the streetscape in terms of what the neighbours have and would present as overly bulky and have adverse visual and physical impacts exacerbated by inadequate landscaping in the front setback. He disputed that the area was in transition stating this was not supported by the evidence - any new development was just people upgrading in response to the value in the land.
If the Court did not agree with the Council, Mr Seymour noted that the conditions filed as Exhibit 6 were agreed by the parties and were considered by the Council to be necessary to protect the amenity of neighbours and to minimise impacts. The conditions included requiring Council approval for removal of any trees, other than 2 trees in the front yard, adequate protection of trees located within adjoining properties, and a splay for the driveway to improve sightlines for pedestrians from vehicles exiting the site. A traffic management plan was required and conditions imposed on the use of the roller shutter door so that noise would not be unacceptable at the boundaries.

Findings

The application before the Court was substantially different to that which had been refused initially by the Council and which was the subject of significant opposition. The applicant conceded the initial application was unacceptable in its scale and density and was amended accordingly.
Specifically, the revised application reduced the height to comply with the LEP maximum and the number of rooms from 25 to 15, a reduction of 40% in density, but retained an onsite manager. The applicant also took on board comments of the Council's expert planner in terms of improved solar access and additional landscaping to the front and side to assist with screening the third storey element.
The amendments to the application were such that, of the original 47 particularised contentions raised by the Council, only 3 remained of concern: that the development was not compatible with the local area, the landscaping of the front setback area was not compatible with the landscaped front setbacks in the street or area and was a result of providing basement parking which was not characteristic of the area, and the boarding house had side dormer windows uncharacteristic of the area. In essence, the Council argued that the latter two issues were not of such significance as to warrant refusal per se, but contributed to the failure of the development to meet the area compatibility test under cl 30A of the SEPP.
The only determinative issue for this appeal therefore is whether or not the boarding house development is compatible with the character of the local area.
In terms of determining the local area, I was satisfied that, although the experts differed on its extent, and the Court did not view the full extent of both areas, there did not appear to be a significant difference in the character between the two areas designated. It was agreed that both display common characteristics of predominantly older style dwelling houses in a low density landscaped environment. Whilst predominantly single storey, there was evidence of some upgrading of dwellings and new dwellings at 2 storeys. Whilst driveways were generally at grade they were not universally so and there was some evidence (although in the minority) of parking and paving in front setback areas. There was no evidence of any other development with basement parking but the child care centre in Ray Road, included in both experts' local areas, had parking in the front setback albeit such parking was not typical of either area.
The requirement of cl 30A of the ARH SEPP is to consider if the design of the development is compatible with the character of the local area. It is not a requirement that the design of the development must be the same as predominant development in the area. Indeed as a boarding house, the design by its very nature cannot be that of dwelling house particularly given for example the requirement to accommodate a minimum amount of onsite parking, in this case 4 cars and 4 motorcycles.
For the reasons that follow, I have determined that the proposed development is not incompatible with the existing or emerging future character of the area in which it is situated. Therefore it does not preclude approval to this application. Given my finding in this regard, and notwithstanding the concerns raised by residents, I find that there are no other substantive grounds for the Court to refuse consent to this application.
I have come to the conclusion on compatibility for the following reasons. Firstly, Ray Road is not a quiet residential street of uniform development and it already contains at least one development in close proximity of a commercial nature and atypical design being the child care centre. On the Court view there was also evidence of some redevelopment and new development in the area, including in Cooke Way at the rear of the site, where there was, albeit only a few, new or extended dwellings which were not typical of the older dwelling stock and not dissimilar in height, bulk or scale to the boarding house proposed.
Secondly, the DCP controls make reference to both existing and future character, and it was not suggested by the Council that future character meant maintenance of the style, form or size of buildings that exist today or which precluded dwellings of greater than single storey, rather they permit buildings up to 8.5m in height.
In this regard, the only core LEP control on development in the area is height and the development complies with that control and is in fact under the permissible height for the majority of the building, albeit I note that this is largely due to the proposed excavation for the basement/lowest level.
I do accept that, if viewed in its immediate context, the proposed development is not in keeping with the two adjacent neighbours as both are single storey dwellings. However, in the future, there is opportunity for both dwellings to be extended with additional storeys and a contemporary 2 storey dwelling could be developed on the site which met the current controls and would also be out of character with the existing neighbours.
The proposed development includes a basement car park/lower level resulting in a partial third level over part of the site which I accept is not typical. However, that does not make in incompatible or inappropriate. The car park has been integrated into the design and is required to deal with the parking requirements of the SEPP. This is in my view a preferred parking solution - ie to provide the required 4 car spaces and 4 motor cycle spaces in an excavated basement, rather than providing the parking at grade in the front or rear yard which would also be atypical in the local area and have potentially greater visual and/or amenity impacts.
As it is accepted that boarding houses are permitted in the zone but require offstreet parking, the parking solution proposed is an appropriate one to maximise the portion of the site available for landscaping. It also partially addresses objector concerns about provision of adequate offstreet parking.
Even with providing the driveway access to the car park, some 45% of the frontage of the site will be landscaped. Whilst this is not characteristic of the streetscape it is not a unique outcome in Ray Road and is of itself not a sufficient basis for refusal. In this regard, it is not a requirement to provide a landscaped front setback consistent with the streetscape under the SEPP, it is only a requirement that, if it is provided, it cannot be a ground for refusal.
Whilst I appreciate that dormer side windows are not characteristic of dwelling houses in the area, the development is not for a proposed dwelling house and does not need to be designed as such, albeit the design has attempted to a large extent to appear not dissimilar to a large dwelling house.
Finally, I cannot conclude that the proposed boarding house presents to any significant degree as three storeys. If it did, this was Mr Johanssen's not unreasonable primary test of incompatibility. The only third storey element is largely to accommodate the basement, is likely not to be able to be seen as a result of the proposed boundary fence, and will be screened to some degree by landscaping. As the building will present most significantly as 2 storey with a front façade not out of character with contemporary 2 storey dwellings and of the same height as such development could be built, it could not be found to be incompatible with the local character.
Having regard to all of the evidence, I have therefore formed the view that the application meets the Project Venture test that the boarding house is capable of existing together with dwellings in the area without being required to be the same as them in terms of having the same density, scale or appearance. The difference in these attributes is not such that harmony is unable to be achieved or incompatibility arises.
Even if I am wrong and the development is not compatible with the local area, I have considered the design of the development and its compatibility with the local area and have concluded that it should nevertheless be approved.
I also note the compatibility test is in terms of the design of the development not the proposed use of the building as a boarding house which was one of the issues of concern to objectors.
The atypical elements of side dormer windows, a basement car park/lower level resulting in a partial third level, and restricting the amount of landscaping in the front yard primarily so the car park and facility can be accessed, does not in my view warrant a conclusion of incompatibility.
The site is not within a heritage conservation area and there was not complete uniformity in terms of the use of the front yard, of retaining walls, of roof pitches or of materials of construction particularly of new dwellings. Whilst I accept the local area under either expert's definition is predominantly dwelling stock of a particular age, height and character, there were occasional examples of new infill development which departed from this character and which is informing the new and emerging character.
The LEP controls permit development up to 2 storeys on the appeal site to a height not dissimilar to what is proposed, and potentially higher. There is no FSR control but, at 0.69:1, the floor space proposed within a compliant height limit is not out of character with what might reasonably occur were the site to be redeveloped for a large residence as it permissible. In short, in terms of bulk and scale, the planning controls envisage a form of development not dissimilar to what is proposed.
In terms of the issues raised by neighbours, it is common for boarding houses in low density residential areas to be opposed by a significant number of neighbours. The ARH SEPP however, encourages their development in such areas to provide an alternative form of housing which is affordable subject to the form and scale of the development not being incompatible in its context and the amenity impacts being acceptable. I have formed the view that the compatibility test is met and the experts agreed that there were no unreasonable amenity impacts.
Having regard to the fact that the immediately adjoining properties contain single storey dwellings, the application was amended to remove or minimise to an acceptable degree any adverse amenity impacts that the development may otherwise cause to these neighbours in terms of overlooking and overshadowing. In this regard, there is some merit in the applicant's argument that the applicant was required to comply with more stringent requirement and assessment than a 'compliant' new dwelling would necessarily face.
The impact on property values is not a relevant planning consideration and the impact on traffic and parking is deemed to be satisfied given the compliance with the parking provision of the ARH SEPP, and that there were no safety or capacity issues raised by the Council. As the parking complies with SEPP requirements, the amount of parking provided cannot be a ground for refusal under the SEPP.
Conditions of consent have dealt with controls on noise and management of the boarding house. In considering these agreed conditions and the amendments made to the application, and taking into consideration the issues raised by the objectors, I am satisfied that it is appropriate to grant consent to the proposal.

Epping Property Developments Pty Ltd v Parramatta City Council

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