Geeves v Inner West Council

The site and its context

1. The site currently contains a single storey warehouse building which occupies the entire site. The existing frontage of the building to May Street is occupied by a brick façade with a stepped parapet. This façade is proposed to be retained by the development.
2. Vehicular access to the site for the proposed development is off May Street, utilising an existing driveway at the western end of the site. The site has a 12.9m frontage to May Street and a depth ranging from 28.475m to 31.015m. The site is relatively flat.
3. The eastern boundary of the site adjoins a pair of single storey semi-detached dwellings that also front May Street. To the west of the site is a two storey warehouse.
4. To the rear of the site are single storey semi-detached dwelling houses that front Hutchinson Street. These properties are zoned for low scale residential development.
5. The following extract of DCP 2011 identifies the locality in the immediate proximity of the site, including Camdenville Park which is directly opposite the subject site.
6. The group of terrace houses to the north of the site (105-119 May Street) are listed as local heritage items.

Are the relevant preconditions to the exercise of power met?

1. The Court and the parties were assisted by expert planning evidence from Mr Chapman (Respondent) and Mr Addey (Applicant). Their joint planning report was tendered as Exhibit A.
2. The site is zoned R1- General Residential under the Marrickville Local Environmental Plan 2011 (LEP 2011). The site is not identified as a heritage item. Boarding houses are permitted with consent in the zone. LEP 2011 provides a maximum FSR for the site of 1.2:1 (cl 4.4 of LEP 2011).
3. The application is made pursuant to the provisions of the SEPP ARH and relies on cl 29(c) of that instrument to increase the allowable FSR on the site by 0.5:1 to provide a maximum permissible FSR of 1.7:1.
4. SEPP ARH at cl 29 provides standards that the consent authority (in this case the Court) cannot use to refuse consent to development if the FSR development standard is met. The clause states: "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). ..."
5. Applying the preceding clause, and the mapped FSR under cl 4.4 of LEP 2011, the relevant maximum FSR for the subject site is: 1.7:1

The FSR Standard:

1. Council argues that the development exceeds the FSR provisions applicable to the site and, as the applicant has not provided a written request that seeks to vary the development standard, there is no power to approve the development.
2. The power for such a variation to the FSR development standard is at cl 4.6(2) of LEP 2011. This clause enables development consent to be granted for development that contravenes a development standard, such as the FSR standard imposed in cl 4.4 of LEP 2011, but only if the conditions in cl 4.6(4) are satisfied. Clause 4.6(4) provides: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
3. Clause 4.6(3) specifies the matters that are required to be demonstrated by the written request: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.
4. The applicant maintains that the FSR standard is not breached and therefore a written request pursuant to cl 4.6 of LEP 2011 is not required. Council argues the alternative position.
5. There is a dispute between the parties as to how the FSR should be calculated. In particular which areas of the building are able to be excluded from the calculation of floor space. Clause 4.5 of LEP 2011 establishes how the FSR is calculated, and provides as follows: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). …
6. "Gross Floor area" (GFA) is defined in LEP 2011 as: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
7. In the planning joint report Mr Chapman argues that the architectural plans in Exhibit C do not accurately calculate the GFA of the proposed development. He argues that the application excludes areas from the total GFA of the development that are not encompassed by the exclusion for 'common vertical circulation' at subcl (d) of the definition.
8. The areas Mr Chapman argues are part of the GFA of the development are shown hatched in the following extracts of the floor plan:
9. It is acknowledged by the parties that if Mr Chapman's evidence is accepted by the Court the development exceeds the FSR standard at cl 4.4 of LEP 2011. Mr Rigg and Mr Gough accept that such a finding, in the absence of a cl 4.6 variation request being provided and upheld by the Court, would mean that the Court has no power to consent to the development.
10. Mr Adey disagrees with Mr Chapman's assessment and argues that the totality of the area of the floor plans enclosed by the door to the stair (shown hatched in paragraph [25]) fall within the exclusion of 'common vertical circulation'. It is Mr Adey' assessment that this area should be excluded from GFA, as demonstrated by the architectural plans, and therefore the development is compliant with the FSR standard at cl 4.4 of LEP 2011.
11. Mr Adey notes that on his evidence the GFA proposed by the development is 657.6m², less than the maximum GFA under the standard of 666.4m².

Findings

1. The GFA definition (at paragraph [23]) nominates 'stairs' as a form of vertical circulation. By definition therefore 'stairs' are excluded from GFA.
2. Consistent with the decision of Morris C in Landmark Group Australia Pty Ltd [2016] NSWLEC 1577 at [63], I reject the suggestion that the landings in the fire stairs are not part of the area for 'common vertical circulation' which is excluded from GFA. I am satisfied that a person using the stairs must travel along the landings to get from one level to the next. This is consistent with the definition of 'stairs' in the Macquarie Dictionary which contains the following definition: "1. one of a series or flight of steps forming a means of passage from one storey or level to another, as in a building. 2. (plural) such steps collectively, especially as forming a flight or a series of flights. 3. a series or flight of steps; a stairway: a winding stair."
3. I am satisfied that the landings are an integral and essential part of the stair and are excluded from GRA.
4. Applying this finding it is clear by reference to the architectural plans that the GFA is calculated at 657.6m². The area of the subject site is agreed as 392m². I accept the evidence of Mr Adey that this results in an FSR of 1.67:1, compliant with the maximum allowable 1.7:1.
5. I am satisfied that the FSR standard is not breached by the development and a cl 4.6 variation request is not required.

Maximum room Size:

1. Further preconditions to consent are provided at cl 30 of SEPP ARH.
2. Relevant to these proceedings cl 30 provides: 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: … (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, … (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
3. The development application does not fall within the exemption provided at subcl (2).
4. In the planning joint report Mr Chapman argues that the architectural plans indicate room areas that are erroneously calculated, and by his assessment exceed the maximum 25m² standard. The rooms in question are: Room 4, 5, 10, 11, 16 and 17.
5. The architectural plans nominate the areas of these boarding rooms as follows:

• Room 4: Gross: 34.7sqm Net: 18.6sqm
• Room 5: Gross: 33.7sqm Net: 23.0sqm
• Room 10: Gross: 34.7sqm Net: 23.9sqm
• Room 11: Gross: 33.7sqm Net: 23.0sqm
• Room 16: Gross: 34.7sqm Net: 23.9sqm
• Room 17: Gross: 33.7sqm Net: 23.0sqm

1. I note that no clarification is provided in the drawing set as to the terms 'gross' and 'net'.
2. The Council's Statement of Facts and Contentions state: "5. Insufficient information is submitted showing the calculation of the rooms size toconfirm compliance with clause 29(2)(f) and 30(1)(b) of SEPP - ARH and Part 4.3.3.5of the Marrickville DCP. Rooms 4, 5, 10, 11, 16 and 17 exceed the maximum room sizeof 25m2 excluding the kitchen and bathroom pursuant to clause 30(b) of SEPP - ARH." (Exhibit A)
3. In oral evidence it was acknowledged by Mr Adey, and the applicant's architect, that the architectural plans show these rooms exceeding the maximum room size of 25m².
4. Mr Rigg submits that the exceedence can be readily brought into compliance by the repositioning the entry door to these units to reduce their floor area. This would result in a consequential increase to the corridor length.
5. Mr Rigg argues that to effect compliance with the maximum room size development standard the following condition can be imposed on the consent: "Condition 14A: Rooms 4, 5, 10, 11, 16 and 17 shall not have a gross floor area of more than 25 square metres within the meaning of cl 30(1)(b) of SEPP (Affordable Rental Housing) 2009 by the relocation of the corridor entrance doors to reduce internal floor area." (Exhibit L)
6. Mr Rigg submits that the use of the term 'consent' in cl 30(1) of SEPP ARH should be read as the 'consent to the development'. He argues that the consent to the development properly incorporates the conditions of consent, including condition 14A, therefore making the approval itself consistent with the requirements of the clause.
7. Further Mr Rigg argues that the use of the term 'will not have' in cl 30(1)(b) in relation to the maximum room size standard demonstrates that the requirement to which the clause is focussed is the consent given, not the original application made for the development.
8. In the alternative Mr Gough argues that the Court cannot, and should not, accept the submission of Mr Rigg and rely on a condition of consent to amend the application for the following reasons: 1. The Court does not have the power to vary the standard in cl 30(1)(b) as it is a precondition to consent. In the absence of being satisfied by a variation request under cl 4.6, which has not been sought by the applicant, the court has no power to approve a development that does not meet the 25m² standard. Mr Gough argues that satisfaction of a precondition cannot be achieved post determination of the application. 2. That the applicant accepts that the plans before the Court do not comply with the 25m², and that any consent that was issued relying on the plans that breach the standard, would be invalid. 3. The condition proposed by the applicant is uncertain. Both in terms of what would need to be changed in the design of the building to achieve the room size standard, and in terms of the potential consequential impacts to the development of these changes.

Findings

1. A "development standard" is defined in s 1.4 of the Act to mean: provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed.
2. I am satisfied that the maximum room size nominated in cl 30(1)(b) is a development standard.
3. Equally I am satisfied that the relevant standard is a precondition that must be satisfied before the power to grant development consent is enlivened. My reasoning is as follows: 1. Clause 30(1)(b) of SEPP ARH fixes a maximum room size as a development standard that is to be met by the development. 2. I am satisfied that the terms 'must not consent to development' in the clause designate that this standard must be satisfied before a consent authority can exercise the power to grant development (Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [36]) and Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [65]. 3. I do not accept the submission of Mr Rigg that the clause is focussed on the consent (incorporating the conditions) rather than the development (Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [19]).
4. Consequently I find that the 25m² maximum boarding room size in cl 30(b) of SEPP ARH is a provision that must be satisfied before consent can be granted.
5. I note that it is the agreed evidence of the experts that the plans before the Court exceed this standard. Following a review of the plans in Exhibit C I concur with the evidence of the experts.
6. Consequent to these findings there is no power to grant consent to the development application and the appeal must fail.

Is it appropriate to issue directions for amendment?

1. During the course of the proceedings the applicant sought leave to amend their development application to, amongst other matters, bring the nominated boarding rooms into compliance with the 25sqm standard.
2. Further in closing submissions Mr Rigg sought leave to effect the changes detailed in condition 14A (refer paragraph [42]) in the architectural plans before the Court. The request for leave was dismissed.
3. Given the question of amended architectural plans was aired in the proceedings it is appropriate to consider if the Court should issue directions to bring the application into compliance with cl.30(1)(b) of SEPP ARH prior to the Courts final determination of the matter.
4. In Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156 Sheahan J detailed the Courts approach in some appeals of providing an opportunity to applicants to amend their application, prior to the making of any final determination. This is referred to colloquially as the Court's "amber light" approach. He notes in that judgement at [16] that the amber light approach 'involves delivery of an interim judgement which falls short of outright refusal of the appeal, but indicates elements of concern in the application which could be amended, such that the appeal could be upheld and approval granted' (emphasis mine).
5. Critically the "amber light" approach is essentially a finding by the Court that a particular proposal is not, in its current form, acceptable, but that with certain minor and identifiable amendments, the proposal would be acceptable.
6. I am satisfied that adoption of such an approach is not warranted for this application on the grounds outlined in the following paragraphs, namely that subsequent an amendment to effect compliance with the maximum room size the appeal would not be upheld on merit grounds.

Character:

1. As noted at paragraph [3] the Council argues that the development warrants refusal as the development is of a height, bulk and scale that is not suitable for the site and is inconsistent with the desired future character of the locality.
2. Clause 30A of SEPP ARH states: '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'.
3. Mr Adey's evidence is: "The proposed nil side setbacks are entirely consistent with the existing form of development on the site (which is built to all boundaries) and the desired future character of the area envisaged by part 9.25 of the DCP. The site is located in an area undergoing transition from dated single storey and two storey warehouse buildings to multi-level residential developments. The proposal is consistent with the desired future character of the area. … There are no numeric setback controls for St Peters Triangle, however Part 9.25.10 Built form requires: Building heights, setbacks and articulation influence development to ensure it fits within its desired future context. … The development has a 8.745m rear setback to allow for a deep soil landscaped area at the rear of the site to protect the amenity of the subject site and neighbouring properties. This is consistent with Figure 25.7 of Part 9.25. It is noted that the Height of Buildings Map in Figure 25.5 of Part 9.25 St Peters Triangle (Precinct 25) of Marrickville DCP 2011 stipulates a storey height control of 3 storeys for the subject site. However, the site has a maximum building height control of 17m under Clause 4.3 of the Marrickville LEP 2011. In accordance with Table 1 in Part 9.25 St Peters Triangle (Precinct 25) of Marrickville DCP 2011 a building height of 17m equates to a storey control of 4 storeys. The proposed boarding house comprises four storeys and has a maximum building height of 12.88m and therefore conforms with the Built Form controls of Part 9.25 St Peters Triangle (Precinct 25) of Marrickville DCP 2011. The proposal to maintain the existing historic facade, which is built to the street, whilst increasing the size of openings to provide visual interest and solar access to a new open space behind the facade. New levels are setback from the front consistent with the DCP. Retention and conservation of this facade is consjder preferable to an entirely new building and consistent with the desired future character for the precinct: To retain existing character buildings (groups or rows) and adapt, recycle and blend new with old. The new building length is 19.27 m, built to or close to both side boundaries in compliance with 9.25.10.4, C21, (1) of the DCP and representing a minor non compliance with (2), notwithstanding that good amenity is achieved throughout. This is a reduction in the existing building length of 31m, currently built to all boundaries of the site. As such the new rear building line will be consistent with the rear building line of the residential properties to the east, in compliance with the controls, objectives and desired character contained in the DCP. The proposal now provides 65.6m2 or 16.7% of deep soil landscaping at the front and rear of the site, consistent with Part 9.25.10.3 of the DCP. There is no numeric requirement for deep soli landscaping in Part 9.25.10.3 of the DCP." (Exhibit A)
4. Mr Chapman argues: "GC position is that the bulk and scale of the proposed building is not suitable for the site based on the following assessment: - The 4 storey building is contrary to the planning control at Part 9.25.10.2 of the DCP that requires a 3 storey building form at the western end of May Street. A 3 storey building height is an important planning outcome to ensure a suitable transition in building height is achieved to the R2 - Low Density zone (9.5m). The proposed 4 storey building is out of character with the existing building form on May Street and the desired future character in accordance with the planning controls. - There is no planning merit in the retention of the front fagade and it is recommended that the fagade is demolished to allow for a better design outcome for the subject site including the provision of a front setback of 3m. Part 9.25.10.4 of the DCP requires a deep soil landscape strip at the rear of the site. This is particularly important on this site given the rear boundary of the site adjoins the backyard area of 63 - 65 Hutchinson Street and these properties are zoned R2 -Low Density Residential. The proposed parking area encroaches into the deep soil landscape area. The encroachment of parking into the deep soil area at the rear of the site is exacerbated by the issue B plans. - As addressed above the 4 storey building is contrary to the planning controls and results in unreasonable visual bulk and scale to the adjoining single storey dwelling at 94 May Street the properties to the rear of the site. ... In my opinion, given the above assessment the proposed form and scale of development is not consistent with existing development in the immediate locality or the desired character under the planning controls." (Exhibit A)
5. I have also considered the oral evidence of the planners provided at the hearing that supplemented the above opinions, and the submissions of Mr Gough and Mr Rigg.
6. I prefer the evidence of Mr Chapman and I am satisfied that the development is inconsistent with the current, and desired future, character of the locality. I am satisfied that (notwithstanding the failure of the precondition at paragraph [52]) these inconsistencies would warrant refusal of the application (cl 4.15(b) and (e) of the Act). Further to Mr Chapman's reasoning I: 1. accept the agreed evidence of the planners that the relevant precinct is undergoing transition. 2. find that the development lacks responsiveness to the adjoining single storey development fronting Hutchinson Street. The specifics of this zone interface are demonstrated in the master planning of the St Peters Triangle (detailed at Figure 25.5, at s9.25.10.2 and at Street Section 1 in Part 9.25.11 of DCP 2011). 3. Notwithstanding the developments compliance with the maximum height control I am satisfied the bulk of the development is excessive at the rear, adjoining these single storey cottages and that a variation to Councils storey control at Part 9.25.10.2 of DCP 2011 is not warranted as the objectives of the control are not met. In particular 9.25.10.2 (4) which states: 'The transition between taller development and the adjacent lower scaled buildings must be done with development of an intermediate scale'. 4. Further the development fails to consider the principles detailed in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at [25]: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. 5. These reasons the warrant the refusal of the application (cl 4.15(a)(iii) and (d) of the Act).
7. As a result of the above I have not made directions for the applicant to amend their development to bring it into conformity with cl 30(1)(b) of SEPP ARH.
8. The Court orders that: 1. The appeal is dismissed. 2. Development application DA2017/00583 for partial demolition of the existing building and construction of a boarding house containing 18 rooms, including a manager's room and associated facilities at 96-98 May Street St Peters is refused. 3. The exhibits are returned with the exception of Exhibit 1. ……………. D M Dickson 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: 21 November 2018