Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council

Relevance or weight to be given to amendments to CLEP 2012 and CDCP

1. I will now consider the preliminary, and to some extend threshold, legal dispute regarding the relevance or weight to be given to the amendments to the CLEP 2012 and to the CDCP made after the lodgement of the development application for the Proposed Development. The findings will inform the balance of the assessment of the Proposed Development.
2. There was considerable argument regarding the relevance of or weight to be given to the requirements and controls contained in draft or amended planning instruments and draft or amended development control plans.
3. The Applicant's case is that in accordance with the decision in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 (Alamdo) neither the CLEP 2012 nor the CDCP amendments relating to boarding houses are relevant. The Applicant argues that the Proposed Development should be approved because the Further Amended Plans (Exhibits C and E) address and resolve the contentions raised by the Respondent.
4. The Respondent carefully details in the SOFAC the amendment history of the CLEP 2012 and the CDCP which took place after the lodgement of the development application for the Proposed Development. The development application for the Proposed Development was lodged with the Respondent council on 21 February 2019.
5. The Respondent submits that the amendments should be given the weight of a draft instrument in accordance with the decision in Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 (Terrace Tower) and s 4.15(1)(a)(ii) of the EPA Act. The Applicant does not agree with this submission and instead submits that the effect of both savings provisions is that, given that the development application the subject of this appeal has not been finally determined before the commencement of those instruments, the development application must be determined as if [those instruments] had not commenced.
6. I am assisted by the submission of the Respondent that as the CLEP 2012 amendments as to site width and area are satisfied in the Proposed Development, "in this matter the LEP amendments are probably moot." Accordingly, I will only focus on the CDCP and in particular whether the amended provisions of the CDCP, in particular the controls in Chapter 7 - Boarding Houses, apply as controls relevant to the merit assessment of the Proposed Development or, as the Respondent submits in the alternative, the amended provisions are relevant only in relation to assessing the desired future character of the local area.
7. The SOFAC provides the following succinct summary of the CDCP Amendment No. 5 at par [13]: "(a) On 12 December 2017, the Respondent resolved to introduce controls into the DCP for boarding houses that generally accord with those in the Bankstown Development Control Plan. (b) The Draft DCP seeks to amend Chapter C7 - Boarding Houses to introduce controls relating to the built form of development for the purpose of boarding houses. (c) The Draft DCP was placed on exhibition together with the Draft LEP from 11 December 2018 until 1 February 2019. (d) On 26 March 2019, the Council resolved to adopt the Draft DCP subject to it coming into force on the date the Draft LEP is gazetted. (e) CDCP 2012 Amendment 5 commenced on 20 September 2019 and introduced Part C7 Boarding Houses."
8. The Respondent contends that CDCP Amendment No. 5 (which introduced Chapter C7 - Boarding Houses to the CDCP) should be given appropriate weight to the assessment and determination of the Proposed Development in light of the wording of the savings provision clause A1.9 in the CDCP Amendment No. 5 as follows: "A1.9 Savings Provision If an application has been made before the commencement of the DCP in relation to land to which the DCP applies, and the application has not been finally determined before that commencement, the application must be determined as if the DCP had not commenced."
9. The Applicant submits that the CDCP Amendment No. 5 has no legal status and relies on the Alamdo decision and referred the Court to [19]-[22] of that judgment where, Commissioner Dixon (as she then was) held that: "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 of cl. 1.8A that removes it from consideration."
10. As the Respondent relies on the Terrace Tower decision, it is appropriate to note that in Alamdo, Commissioner Dixon considered the Terrace Tower decision at [4]-[5] and as this consideration is relevant to the savings provision of the CDCP Amendment No. 5 I include the paragraphs in full as follows: "[4] The effect of this type of saving provision is dealt with in the applicant's written submission (AWS) dated 18 October 2012 at paragraphs 4 - 7. It states: 'In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129LGERA 195, the Court of Appeal authoritative construed a savings clause to this effect. The savings clause in the Sutherland 2000 LEP provided that, despite the repeal of the 1993 LEP, that LEP applied to pending development applications "as if this Plan had been exhibited but had not been made": [35]. That is, on all fours with proposed cl.1.8A in the proposed 2012 LEP. This kind of savings provision invited consideration of whether the draft Sutherland LEP (as it was then known) was certain and imminent. That question, the Court of Appeal held, was answered by the making of the draft LEP. Once it was certain and imminent, the Court moved to consider whether the proposed development would undermine the objectives of the new LEP: [6], [7], [50]-[57]. The Court of Appeal anchored its decision in the second limb of the savings provision, which has been quoted above: [51] "it remained a draft instrument as far as the proposal was concerned, by virtue of the command in the transitional provision"; "the argument was that none of the LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision or the stream of case law forming the background against which its terms are properly to be construed. The transitional provision requires the LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as 'made'. In other words, the decision was driven by the words in the savings clause that specifically addressed the position of the later LEP: "the application must be determined as if this Plan had been exhibited but had not commenced". That was the direction to which the Court of Appeal referred.' [5] The applicant submits however, that the above position must be contrasted with the savings provision expressed in cl1.8A of LEP 2012, which states: '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' (Emphasis added)"
11. On that basis, the Applicant submits that the Court should find that the CDCP Amendment No. 5 has no legal status for the present proceedings and is removed from consideration on the ground of public interest.
12. Relevantly, the Respondent disagrees with the Applicant and contends further and in the alternative, that much of the Council's argument is around clause 30A of the ARH SEPP which relates to the contention character and streetscape and poses the question of "what is compatible with the character of the area?". The Respondent says that the controls in the CLEP 2012 and the CDCP provide the answer, in particular: "to the extent that any future development will be subject to the DCP Amendment 5 therefore the controls which go to compatibility, such as front and side setbacks, landscaping, roof forms and the like are in the DCP as amended."
13. The parties acknowledge that the Town Planning Experts refer to Canterbury Local Environmental Plan Amendment No. 16 and CDCP Amendment No. 5 in the Joint Report as though they are relevant.
14. I accept that the planning instrument amendments are moot and the Proposed Development otherwise satisfies the requirements of minimum lot size and site width and I am for that practical reason only required to deal with the issue of whether any of the controls of the CDCP 2012 Amendment No. 5 are to be given any weight in relation to assessing the Proposed Development.
15. The Commissioner in Alamdo held at [19]-[21] as follows: "[19] I accept the applicant's interpretation of the savings provision in cl1.8A of LEP 2012 for the reasons outlined above. [20] The transitional provision in cl1.8A requires the LEP 2012 to be taken into consideration under s 79C(I) of the Act as if the Plan had been made but not commenced. The words in the savings clause under review in this case are different to those considered by the Court of Appeal in Terrace Towers. Therefore, the case at hand can be distinguished from reasoning of the Court of Appeal in Terrace Towers. I accept the applicant's submission that there must have been a purpose in the drafter of the clause removing the words "had been exhibited" from the final Plan as made. If I accept the Council's interpretation of the clause then it is irrelevant that the words "had been exhibited" were removed from the final version of cl1.8A. [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."
16. The Respondent submits that the CDCP Amendment No. 5 controls are a part of a suite of measures which the Council has introduced to properly deal with boarding houses and as such there is considerable public interest concern in ensuring that draft instruments are given significant role to play in assessment and the Respondent relied on the decision of Aldi Foods Pty Limited v Holroyd City Council (2004) 139 LGERA 259; [2004] NSWLEC 253 (Aldi).
17. The Applicant respectfully submits in its written submissions at pars [6]-[8] that: "[6] The respondent's reference to Aldi Foods Pty Limited v Holroyd City Council (2004)139 LGERA 259; [2004] NSWLEC 253 is misplaced. Its factual matrix is that a draft LEP had been placed on public exhibition at the same time as a draft DCP which proposed a master plan which indicated amongst other things, a new street layout, drainage arrangements building footprints and heights of buildings.( Aldi Foods Pty Limited v Holroyd City Council op. cit at [10], p. 262.) The question before the Court, during the course of a Class 1 Appeal concerning a development application, was whether the applicant be given leave to rely on an amended proposal that purports to respond to the joint opinion of experts that it is appropriate to develop the subject land pursuant to the draft LEP and draft DCP. (Aldi Foods Pty Limited v Holroyd City Council op. cit at [5], p. 261.) At paragraph [42] Talbot J held: 42 The most palpable inconsistency, however, is between the proposal and the long-term planning vision of the Neil Street Precinct Master Plan contained in the draft DCP. For this site the Master Plan shows the footprint of an eight-storey building following the line of a new road and swale. This is about as different from a single-story supermarket as it is possible to be. While a draft DCP is not among the matters to be considered under s. 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW), in this case it is an adjunct to the draft LEP and it is appropriate to take into account as a matter of public interest. [7] Aldi can be readily distinguished factually from the current appeal, which does not involve a draft LEP with an associated draft DCP proposing a master plan. Furthermore, Aldi concerns only the weight to be attributed to the draft DCP. [8] Whilst there are recent references to the Aldi judgment (Brown v Waverley Council [2018] NSWLEC 1660 at [31] and [61]; ACN 603 361 940 Pty Limited v Northern Beaches Council [2019] NSWLEC 1012 at [51]-[53]), they did not follow Aldi."
18. I note that the Town Planning Experts both defer to the CDCP Amendment No. 5 provisions for the purpose of determining the desired future character in the Joint Report. Ms Michael in the Joint Report at par [32] states that: "[32] […] Part C7 Boarding Houses (Amendment No 5) of the CDCP 2012 will assist in informing the desired future character as set out in Clause 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009."
19. Mr Chapman in the Joint Report at par [19] also relies on the standards in CDCP Amendment No. 5 in order to form the opinion that the Proposed Development is compatible with the desired future character of development in the R4 High Density Residential zone.
20. During the hearing the Town Planning Experts were asked about the applicability of the CDCP amendments. Ms Michael confirmed that standards and controls in the CDCP Amendment No. 5 "helps character definition and future character assessment" and Mr Chapman confirmed that it "helps guide desired future character".
21. Clause 30A of the ARH SEPP provides simply that: 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.
22. I accept the Applicant's submissions and find that Alamdo sets out the relevant principles as to how CDCP Amendment No. 5 should be considered in the present case and accept that CDCP Amendment No. 5 has no legal status for the present proceedings and are removed from consideration on the ground of public interest being the merit assessment as required by s 4.15 of the EPA Act. This finding is subject to and limited by the fact that I accept the Respondent's argument in the alternative, that the controls and development standards in CDCP Amendment No. 5 do have some work to do relevant and limited to the consideration of determining the desired future character of the local area for the purpose of consideration of compatibility pursuant to cl 30A of the ARH SEPP upon which the "character contention" is based.

Evidence and findings regarding Contentions

1. I will now consider the evidence during the hearing and address each of the four remaining contentions in order below.

Character and streetscape: Is the proposed boarding house compatible with the character of the local area?

1. The Respondent submits that this case is essentially about character and that this contention is the heart of the Council's objection and in written closing submissions states unequivocally that: "this case is about character in that the Proposed Development is not compatible with the character of the local area and the desired future character of the area."
2. The Respondent gives the following reasons for the proposition that the Proposed Development is not compatible with the character of the local area as follows: 1. The desired future character of the local area is guided and defined by the CDCP 2012 Amendment No. 5 and there are a number of sub-categories of controls being: 1. Height which is an objective assessment and the Proposed Development complies with these controls; 2. Setbacks which is an objective assessment and the Proposed Development does not comply; 3. Landscaping which is a subjective assessment and the Proposed Development does not comply. The Respondent stresses that the importance that attaches to landscaping to establish compatibility cannot be underestimated and refers to [29] of Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 1919 (Project Venture); 4. Whether the Proposed Development is visually compatible which is also a subjective assessment and the Proposed Development has a mansard style roof, being a roof form which is steeper than the usual pitched roof in the area as described by Ms Michael at par [26] in the Joint Report.
3. In order to define the concept of compatibility, the parties referred the Court to the planning principle of compatibility in urban environment which has been established by the decision of Senior Commissioner Roseth in Project Venture. Senior Commissioner Roseth concluded that being compatible is different from being identical and the Court has accepted that developments can exist together in harmony without having the same density, scale or appearance.
4. The issue to be determined in this case is one of compatibility and not sameness and in Project Venture the Senior Commissioner noted (at [22]) that: "the most apposite meaning [of compatible] in an urban setting 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 is the difference in these tributes increases, harmony is harder to achieve."
5. It is submitted by the Applicant that the design of the Proposed Development is compatible with the character of the local area, both present and the desired future character pursuant to its zoning. I have read the summary and assessment of cl 30A Character of local area detailed in the Statement of Environmental Effects prepared by Morphology Design Associates and filed 15 April 2020 at pages 12 and 13 (part of Exhibit A). The Town Planning Experts also address compatibility with the character of the local area in the Joint Report from pages 5 to 11 (Exhibit 2).
6. Under cross examination both Town Planning Experts stated that they undertook an assessment of character against the cl 30A objectives of the zone and visual assessment and controls. Neither Expert undertook an assessment of character against the Project Venture criteria.
7. The concern as described by Ms Michael in the Joint Report and in her answers during the hearing, is that the mansard style roof results in the Proposed Development reading as a four storey form. Ms Michael gave evidence that as some elements of the dorma windows can be seen from Fifth Avenue the building is therefore, in her opinion, read as a 4 storey building.
8. Mr Chapman agreed in cross examination that there are no other examples of the roof form as proposed by the Proposed Development in the visual catchment however he disagreed that the roof form is a mansard style roof and that it was his opinion that the Proposed Development would read as a three storey building. I note and accept Mr Chapman's comment in oral evidence that a significant factor identifying the 3 storey form of the building is the eave overhang.
9. The Applicant addressed the Respondent's contention as to visual catchment and the application of the planning principle regarding compatibility as set out in Project Venture by noting the relevance of the R4 High Density Residential zoning of the Site and within the local area which 'envisages a change of character, in which case compatibility with the future character is more appropriate than with the existing' (Project Venture at [23]). The Applicant submits that: "Uneven timing of redevelopment would cause the character of a locality to provide for some time uneven redevelopment in accordance with the R4 Zoning. Compatible is not sameness - capable of existing together in harmony (Project Venture at [22])"
10. In relation to visual catchment and I note that the visual catchment of the Proposed Development is seen in the videos which replaced the site inspection (refer to par [2]). The following could be seen in the locality: 1. a number of single dwellings; 2. the three-storey aged care facility immediately across the road from the Site; 3. the four-storey residential flat building to the immediate north of the aged care facility; and 4. a number of 2, 3 and 4 storey residential flat buildings in the local area.
11. The Applicant submits that the form of the building (noting its compliance with the building height and floor space ratio development standards) is such as would be expected within the locality with its R4 High Density zone and submits that: "The form of the roof is such that the buildings will be read as a 3 storey building. The argument about whether the roof form is or is not a mansard roof (or similar) adds little to the question of compatibility within the locality. The articulation along the front façade, together with its finishes and materials, are such that it cannot be suggested that the proposal is or would be, not compatible with the character (present or desired future) of the local area."
12. The Respondent suggested in opening that the timing to date of redevelopment emphasises the importance of the existing character. However, I accept that uneven timing of redevelopment would cause the character of the locality to provide for some time uneven redevelopment in accordance with the R4 High Density zoning, as can be seen already by the redevelopment at 77-87 Fifth Avenue with the four-storey residential flat building.
13. I find that whether the Proposed Development reads as a four storey or a three storey form is not determinative of compatibility however I find that on balance the roof form of the Proposed Development is not incompatible with visual catchment of the local area for the reasons given by Mr Chapman.
14. Landscaping is another factor raised by the Respondent to inform desired future character and in particular the deep soil landscaping of the Proposed Development.
15. The Proposed Development provides the required deep soil landscaping in the front setback to a depth of 5m from the front boundary. The Applicant submits that: "the complaint about the impact on the deep soil landscaping from (i) the path near the southern boundary being an emergency exit; (ii) the main entrance pedestrian path; (iii) the driveway dictated by the location of the heritage street trees; and (iv) the traffic signals and fire hydrant in the North Eastern corner of the site, cannot be sustained as those items are necessary items to be included within the front of a proposed development."
16. The Applicant submits that the purported inadequacy of deep soil areas along the side setbacks is resolved for this contention (that is in so far as it is relevant to the consideration of compatibility with the local character and streetscape) by the substantial landscaping proposed along the side setbacks in any event.
17. Mr Chapman acknowledges that the deep soil control is not strictly achieved but expressed his opinion that the planter boxes achieve the same outcome allowing 2.5m high Lilli Pilli, 4m high Myrtle and 2.5m to 5m high Tree Fern planting along the Northern and Southern side boundaries and he referred to the dimensions of the planter boxes specified in Drawing A-1202 Rev D. Ms Michael did not agree that planter boxes achieve the deep soil planting as required by the CDCP 2012 Amendment No. 5 however she did not dispute the planting outcome as described by Mr Chapman and that in relation to how the planting affects compatibility with the character of the local area she agreed that the landscape setting would be visually compatible.
18. I accept that the SEE accurately summarises the consideration for the Court as follows: "There is limited local reference in terms of a desired architectural styles as the area is currently in transition. […] The proposed development provides architectural articulated facades and passive surveillance to Fifth Avenue. A combination of material is proposed for this development in addition to play of light and colour due to the massing and architectural articulation. The proposed development is expected to sit in harmony with the surrounding future developments."
19. I am satisfied that compatibility with the character of the local area has been considered in detail by the Experts and in the submissions of the parties. The SEE, Expert Report and written submissions all examine the various aspects of Proposed Development as compared with the existing character. I have also referred to the videos shown prior to the commencement of the hearing and the photographs contained within the Joint Report and I have considered the desired future character and informed by the controls and standards introduced by CDCP 2012 Amendment No. 5. In accordance with the criteria in Project Venture I am satisfied that visual compatibility has been considered, and I find that the Proposed Development is on balance compatible with the character of the local area.
20. I find that the Proposed Development is not required to strictly comply with all the controls and development standards in the CDCP Amendment No. 5 in order for the Proposed Development to be able to be compatible with the character of the local area. I form this opinion for the reasons submitted by the Respondent, that the CDCP Amendment No. 5 has some work to do in that it guides the consideration of what the desired future character of the local area. I am satisfied that the Proposed Development has taken into account and is sufficiently consistent with the relevant provisions of CDCP Amendment No. 5 in order to be compatible with the desired future character of the local area.

Has the issue of potential site isolation been adequately addressed?

1. The particulars to the contention for site isolation in the SOFAC are limited to C4.2.1.2 titled "Isolated Sites" and is within C4.2 titled "SEPP 65 Applications". It is relevant to note that State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) does not apply to boarding house development and that C4.2.1.2 is not applicable to the assessment of this Proposed Development.
2. The Applicant submits that the contentions define the topics in dispute between the parties and that in the present case, given that the particulars of the contention do not apply, the contention, according to the Applicant becomes not relevant in the present case.
3. The Applicant notes that although chapter C7, (C7.2.2) of the CDCP 2012 deals with isolated sites, for reasons set out above (refer par [33]), it too has no legal status in the present case and it is also not referred to within the particulars to the contention.
4. If the Applicant is incorrect in this submission, I address this contention briefly and consider the Respondent's submissions as I accept that the question as to whether the Proposed Development might isolate 52 and 54 Fifth Avenue is a relevant matter for consideration by reason of s 4.15(a)(b) of the EPA Act which requires the consent authority to consider "the likely impacts of the development, including [...] social and economic impacts in the locality".
5. In relation to site isolation the Respondent concedes the steps taken by the Applicant to address site isolation as detailed in Appendix 7 of the Joint Report (Exhibit 2) however the Respondent argues that the planning principle in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas), requires a review of the following: 1. what negotiations took place in answer the question: Is amalgamation of the sites feasible? and 2. can you do something with the remaindered site? Or putting it another way, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?
6. The SOFAC additionally particularises and relies on the objectives on the R4 High Density Residential zone in the CLEP 2012 contending that: "(f) The objectives of the R4 Zone encourage types of development which meet the housing needs of the community within a high density environment. Approval of the Proposed Development which would sterilise 52 and 54 Fifth Avenue that only a dwelling house could be accommodated on each site or as a consolidated allotment the only form of residential development would be a dual occupancy or a boarding house under the CLEP 2012 Amendment No. 16. This would be inconsistent with the objective of the R4 Zone as it would not provide a variety of housing types to provide for the housing needs of the community in a high density environment."
7. In the absence of controls or development standards it is appropriate to refer to the planning principle in Karavellas which applies to the isolation of site by redevelopment of adjacent site(s) and the role of Court in assessing consolidation negotiations. The Respondent submits that whether the court refers to the CDCP provisions or the planning principle 'we come to much the same conclusion.'
8. The Town Planning Experts do not agree in relation to this issue and I note that in the Joint Report from pages 11 to 14 they respectively address their differing views.
9. I firstly note that the permissible uses of the adjacent sites at 52 and 54 Fifth Avenue Campsie are various and are set out in the R4 High Density zone Land Use Table in CLEP 2012 as follows: 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Business premises; Car parks; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Home-based child care; Home businesses; Hostels; Multi dwelling housing; Neighbourhood shops; Office premises; Oyster aquaculture; Places of public worship; Recreation areas; Residential flat buildings; Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Serviced apartments; Shop top housing; Shops
10. The first question is whether or not there will be an isolated site as a result of this Proposed Development. The Applicant submits that: "Collectively, 52 and 54 Fifth Avenue are capable of accommodating many of the forms of redevelopment envisaged by the LEP in the R4 high density residential zone (see land use table Exhibit 4 page 13. With respect to the 27 m frontage width (which is limited to residential flat buildings on a major road), the objectives to that control may well be able to be achieved despite the site of 52 and 54 Fifth Avenue having a width of 20 m rather than 27 m. It is questionable whether the classification of Fifth Avenue as a major road affects the impact of a residential flat building, and the compliance with the objectives in C4.3.1.1 (page 330 Exhibit 4). Section 4.15(3A) of the Environmental Planning and Assessment Act 1979 is noted."
11. Ultimately, the Respondent's concerns regarding this issue was summarised by Ms Michael during the hearing where she states that she believes where two valuations should have been obtained only one was obtained by the Applicant, that where a negotiation should have taken place the Applicant has provided a single offer and that rather than schematics and layout for 52 and 54 Fifth Ave only an indicative concept plan has been provided by the Applicant.
12. Ms Michael was asked by the Applicant what more could the Applicant have done if no response was received to the offer made? Her answer is that the recipients of the offer were given 14 days to make a life changing decision and that she did not feel that enough attempts were made.
13. It was submitted by the Applicant that the issue of isolated site is such as not to warrant refusal of the Proposed Development. I accept that submission.
14. In the present case I accept that the requirements set out in Karavellas have been satisfied by the following: 1. negotiations between the owners of the subject site and 54 Fifth Avenue are in evidence. These include an offer sent by registered post to the owner of 54 Fifth Avenue based on a recent independent valuation. (refer Appendix 7 to Joint Report Exhibit 2). I am satisfied that a reasonable offer has been made in the context of the independent valuation being increased by 8% as the value of the offer made by the Applicant and that amalgamation is not feasible resulting from no response as at the date of the hearing being received by the Applicant to its offer (noting the offer was dated 23 April 2020). 2. A conceptual plan for the isolated site was prepared and tendered to the Court, (refer to Site Amalgamation 52-54 Fifth Ave Drawing A 0050 Exhibit C) noting that this is a suitable concept proposal in R4 High Density although, similarly noting that residential flat buildings and multi-dwelling would be subject to the control of minimum 27m street frontage, thus, limiting the range of permissible options as per the land use table to potentially exclude residential flat buildings and mutli dwelling housing subject to SEPP 65. I am satisfied that notwithstanding that amalgamation might be desirable and likely to achieve a better planning outcome, the orderly and economic use and development of the separate sites can be achieved.
15. I find that the issue of site isolation has been adequately addressed for these reasons above.

Amenity for future lodgers

1. During the hearing it was established that the remaining outstanding aspect of this contention pressed by the Respondent is limited to particular (g) as particularised in the SOFAC which states that: "(g) The boarding rooms within the mansard like roof form will not provide the future lodgers an appropriate level of outlook or functional living areas and will result in a poor amenity."
2. The size of the proposed boarding rooms satisfies the requirements set out in cl 29(2)(f) of ARH SEPP and the Town Planning Experts in the Joint Report agree that the facilities in the rooms' kitchens include a sink, cooktop, microwave and fridge. The Respondent concedes that the design of the rooms meets the minimum requirement.
3. The Respondent submits that this contention falls into 2 categories. The first category is the Respondent's submission that the definition of dwelling and attic in the CLEP 2012 conspire to make the proposed six roof top dwellings prohibited. I do not accept this submission firstly because it is not included or particularised in the SOFAC and was only raised during submissions. Secondly, the definition of the word "attic" in the CLEP 2012 is noted however, the word does not perform any operative function in the controls that relate to the assessment of boarding houses and the amenity of lodgers.
4. The second category of the Respondent's contention is that the rooms' outlook or functional living areas will result in a poor amenity and the Respondent refers the Court to Drawing A-1205 Rev F.
5. During cross examination of the Town Planning Experts, questions were asked of them regarding the positioning of the windows and whether this positioning created an inviting space and whether the natural lighting was sufficient.
6. Each room on level 3 was explored by the Respondent in cross examination during the hearing regarding the layout, lookout and natural light for each room. The width of the windows was confirmed to be 2.5m. Ms Michael used phrases like 'not the best amenity', 'not ideal amenity' and 'not ideal layout' whereas Mr Chapman gave his opinion that the rooms on level 3 provide the future lodgers an appropriate level of outlook and functional living areas.
7. I find that as the rooms are each compliant with the ARH SEPP, I accept Mr Chapman's opinion that the rooms on level 3 provide the future lodgers an appropriate level of outlook and functional living areas. I find that the amenity for future lodgers in relation to appropriate levels of outlook and functional living areas is satisfactory and appropriate.

Solar access and impact on adjoining neighbouring private open space

1. As mentioned earlier, the solar access and overshadowing contention is limited to the impact of the Proposed Development on the private open space to the adjoining property at 54 Fifth Avenue which is said to be inconsistent with 1. Part C4.3.4.1 Control C5 of the CDCP requiring retention of a minimum of 2 hours of sunlight between 9 am and 3 pm on 21 June […] to 50% of the principal private open space; and 2. Part C7.6.1 of the CDCP Amendment No. 5 which requires a minimum of 3 hours between 8 am and 4 pm on the 21 June.
2. For reasons provided above, I am not required to assess compliance with the provisions of Part C7.6.1 of the CDCP which leaves only the consideration of whether 50% of the private open space of the adjoining property at 54 Fifth Avenue receives sunlight for 2 hours between 9 am and 3 pm on 21 June to the extent that PartC4.3.4.1 may be applicable to the Proposed Development (noting that Part C4 of the CDCP provides controls for Residential Flat Buildings).
3. The Joint Report provides at par [62] that the two planning experts have reviewed the shadow diagram - 3D (Existing building (Plan No. A-2106) and they agree that the ground floor windows on the north elevation of the dwelling house at 54 Fifth Avenue are currently overshadowed between 8 am and 4 pm at mid-winter.
4. The Applicant submits that there will be no further adverse impact. The Respondent says that the test is 'no worse off'. The Respondent submits that the neighbour's yard at 54 Fifth Avenue Campsie will only receive adequate sun between two and three in the afternoon and that the test of "should not be worse" is not met.
5. The Applicant submits that the Proposed Development retains an appropriate level of solar access to the property at 54 Fifth Avenue, especially taking into consideration the east west orientation of the subdivision and the R4 High Density Residential zone and relies on the evidence of Mr Chapman.
6. Mr Chapman states that the plan at Appendix 11 of the Joint Expert Report (namely the Shadow Diagram Drawings A-2103 Issue D, A-2104 Issue B and A-2105 Issue B) shows the solar access retained to the adjoining land. At par [63] in the Joint Report Mr Chapman explains that this plan: "shows the solar access retained to the backyard/private open space of 54 Fifth Avenue as 12 noon - 36.6%, 1pm - 43.6%, 2 pm - 50% and 3 pm - 52.4%. It is noted that the proposal varies the control at Part C7.6.1 of the DCP however, reasonable solar access is retained given the east-west orientation of the site and the R4 - High Density Residential zone. Further, the development proposal meets the height, FSR, side and rear setback controls."
7. During the hearing Mr Chapman was questioned about solar access and expanded his evidence to state that from 12 noon to 4 pm, the total area of backyard of number 54 Fifth Avenue being 270m2, an area of 100.97m2 receives sun being 36.68% of the private open space. The argument relied on by Mr Chapman for the Applicant is that although less than half of the private open space receives sun, the mere fact that the backyard is so large the actual area of the yard which receives sun is ample for amenity when more than 100m2 will retain solar access.
8. The Respondent submitted that and relies on Ms Michael's evidence which looks to Part C7.6.1 of the CDCP Amendment No. 5. During the hearing Ms Michael agreed that Part C7 of the CDCP Amendment No. 5 is not relevant in the present but in her opinion is used as a guide together with Part C4.
9. I find that Mr Chapman's evidence is preferred on balance as the controls relied on by Ms Michael are not relevant to the Proposed Development and given the east west orientation of the Site, the solar access retained in the private open space of the adjoining land is adequate.

Jurisdictional Considerations

1. There are a number of relevant jurisdictional prerequisites that require consideration.
2. Firstly it is relevant to note that both of the registered owners of the Site, 56 Fifth Avenue Pty Ltd ACN 613 213 246 and 58 Fifth Avenue Pty Ltd ACN 613 199 394 provided owner's consent by the conclusion of the hearing.
3. Secondly, s 4.15(1)(d) of the EPA Act requires the consent authority to consider any submissions made. The SOFAC details the fact that the Proposed Development was notified from 5 March 2019 to 3 April 2019 and eleven (11) submissions were received by the Respondent and I note that these submissions are included in the Supplementary Bundle filed 20 July 2020 (Exhibit 5). I have considered the concerns raised in the submissions most of which are either addressed in the SOFAC or addressed by the Further Amended Plans.
4. Finally, the BASIX Certificate number: 995415M issued Sunday, 17 February 2019 and filed on 15 April 2019 as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (Exhibit A) was referred to during the hearing and I accept the Applicant's advice that a new certificate is not required and that this Basix certificate in evidence can relate to the new plans.

Decision

1. I find that it is appropriate for the appeal to be upheld and development consent to be approved for the Proposed Development for the following reasons: 1. the Proposed Development will be compatible with character of the local area (refer pars [52]-[54]); 2. site isolation has been adequately considered and addressed by the Applicant (refer par [68]); 3. the amenity of the future lodgers of the rooms on level 3 of the boarding house will have appropriate level of outlook and functional living areas (refer par [76]); and 4. the solar access retained to the private open space of the adjoining property is adequate (refer par [85]).

Orders

1. The orders of the Court are as follows: 1. Leave is granted to rely on further amended architectural plans (Exhibit C) and Landscape Plans (Exhibit E). 2. The appeal is upheld. 3. Development consent is granted for Development Application No. 37/2019 as amended, seeking development consent for the demolition of 2 existing single storey residential dwellings and construction of a 3 storey plus attic boarding house with 1 basement at 56 and 58 Fifth Avenue, Campsie being Lots A & B in Deposited Plan 367942 subject to conditions of consent marked "A". 4. The exhibits, except for Exhibits 1, A, B, C and E are returned.

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: 15 October 2020