GM Architects Pty Ltd v Strathfield Council

Land and Environment Court (NSW)|2020-08-07

Judgment

COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Strathfield Council (the Respondent) of Development Application No. DA2019/026 seeking consent for alterations and additions to an existing dwelling of local heritage significance known as 'Goongirwarrie' and its adaptive re-use as a boarding house containing 24 boarding rooms, 1 manager's room, manager's lounge and kitchen, reception, communal kitchen and laundry, business centre, a communal lounge, outdoor communal open space over basement parking accommodating 16 cars, 5 motorcycles and 5 bicycles at 55-57 Abbotsford Road, Homebush.
The Court granted the Applicant leave to amend the application and rely upon amended plans and other documents on 7 April 2020.
At the commencement of the third day of the hearing, the Applicant sought leave of the Court to further amend the application and rely upon amended plans and documents that are detailed at [49].

The onsite view and public submissions

On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) that set out arrangements for the staged return to face-to-face attendances in Court and on-site.
The parties sought an onsite view prior to the hearing. The Court granted the request and directed that the onsite view proceed subject to those attending being limited to seven (7) people.
I attended the site and in the presence of the parties and the experts, I inspected certain rooms within the interior of the existing dwelling on the site, the rear yard, and front and side setbacks after which I was taken to the intersection of Abbotsford Road and Meredith Street.
While in the rear yard, my attention was drawn to a stringline set out by the Applicant to depict the approximate outline of the proposed basement, and the heritage experts identified aspects of the alterations and additions made to the adjoining heritage item at No. 53 Abbotsford Road.
Those attending the onsite view then walked along the southern side of Abbotsford Road as far as the intersection with Homebush Road, before returning to the site along the northern side of Abbotsford Road.
At the conclusion of the onsite view, the hearing commenced at 12pm via Microsoft Teams.
In accordance with par 46 of the Court's Pandemic Policy, one objector, Mr Peter Dobrijevic, sought leave to address the Court via Microsoft Teams. Mr Dobrijevic's submission may be summarised as follows:

Boarding house development delivers a public good that must be held in balance with the reduction in property values that results from their development in existing neighbourhoods.
The statutory regime places a limit on boarding house development of 12 rooms, which is a scale Mr Dobrijevic would support.
The Applicant would have, or should have, known of the limitation in rooms that apply to the site.
Through personal experience, Mr Dobrijevic believes that larger boarding house development imposes a more adverse impact on property values of adjoining properties.

The issues

The background facts and contentions in this matter are set out by the Respondent in the Amended Statement of Facts and Contentions (Exhibit 1). The contentions may be summarised as follows: 1. Contention 1 - the development must be refused as the proposed development contains more than 12 boarding rooms, which is prohibited by cl 30AA of the SEPP ARH. 2. Contention 2 - the design of the proposed development is not compatible with the character of the local area as required by cl 30A of the SEPP ARH. 3. Contention 3 - The proposed development does not demonstrate the proposed landscape treatment of the front setback is compatible with the streetscape as required by cl 29(2)(b) of the SEPP ARH. 4. Contention 4 - the proposed development will have an unacceptable impact on the heritage item, the Abbotsford Road Heritage Conservation Area (Abbotsford Road HCA) and the adjacent heritage item. 5. Contention 5 - Inadequate information prevents a proper assessment of the boarding house and its impacts. 6. Contention 6 - The entry/exit driveway to, and layout of, the basement car park is unacceptable and the crest of the basement ramp will not protect against flooding. 7. Contention 7 - The proposed development is not in the public interest and would set an undesirable precedent within the heritage conservation area.

Expert Evidence

The primary contentions in this matter relate to heritage and town planning. The following experts assisted the Court in these matters and prepared a joint expert report that was marked Exhibit 3.

Town planning: Mr Andrew Martin, for the Applicant and Mr Glenn Apps, for the Respondent.
Heritage: Mr Peter Lonergan, for the Applicant and Ms Lisa Trueman for the Respondent.

Contention 1 is addressed by the town planning experts, and is considered at [65]-[139].
The heritage and town planning experts conferenced jointly, and agreed that a number of the contentions were interdependent. The joint expert planning and heritage report at Exhibit 3 identifies the agreed division of contentions to the respective disciplines:

Heritage: Contentions 2, 3, 4 and 7
Planning: Contentions 2, 3, 5 and 7

A contention in respect of car parking and driveway design was the subject of joint conferencing between traffic engineers, Mr Paul Corbett for the Applicant and Mr Ken Hollyoak for the Respondent.

Planning framework

The site is within an R2 Low Density Residential zone identified by the SLEP. The objectives of the R2 zone are in the following terms: 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.
The proposed development is for alterations and additions for the purposes of a boarding house development which is permissible in the R2 zone with consent.
As such, the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) applies.
Relevantly, State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019 (Amending SEPP) was published on the NSW Legislation website on 28 February 2019 and is agreed by the parties to apply.
The effect of the Amending SEPP is the insertion into the Affordable Housing SEPP of two provisions of particular relevance to this appeal:

Clause 30AA of the Affordable Housing SEPP
Clause 54C of the Affordable Housing SEPP

Firstly, the Respondent submits that the development the subject of the development application is prohibited by operation of cl 30AA of the Affordable Housing SEPP which commenced at the beginning of the day on the 28 February 2019, being the same day as the Development Application was lodged with the Council.
The effect of cl 30AA is to limit boarding house development in an R2 zone to a maximum of 12 boarding rooms.
The parties agree that cl 30AA of the Affordable Housing SEPP is a development standard that is amenable to variation under cl 4.6 of the SLEP. 1. cl 30AA of the Affordable Housing SEPP is in the following terms: 30AA Boarding houses in Zone R2 Low Density Residential A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
Secondly, cl 54C of the Affordable Housing SEPP is a savings provision in the following terms: 54C Savings and transitional provisions - 2019 amendment (1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement. (2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced. (3) In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing Amendment (Boarding House Development) 2019.
According to the Respondent, the savings provisions at cl 54C of the Affordable Housing SEPP does not apply by operation of the Interpretation Act 1987 which states, at s 24: 24 Time of commencement of Acts and statutory rules If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day
Historical notes confirm the Amending SEPP was published on the NSW Legislation website on 28 February 2019 which is, by operation of cl 2, the date on which the instrument is published.

Provisions of the Affordable Housing SEPP

The Aims of the Affordable Housing SEPP are set out in cl 3: 3 Aims of Policy The aims of this Policy are as follows - (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
The Affordable Housing SEPP makes plain, at cl 8, its relationship with other environmental planning instruments in the following terms: If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
As the site is in an accessible area, cl 27(2) applies to enliven the provisions at cll 29, 30 and 30A.
Clause 29 is in the following terms: 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 - … (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 … (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). …
Clause 30 contains certain standards for boarding houses, and the parties are agreed that the proposed development is consistent with the those as follows: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following - (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
The provisions at cl 30A of the Affordable Housing SEPP requires consideration of the local character: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Strathfield Local Environmental Plan 2012

While cl 4.4 of the SLEP set outs the floor space ratio applicable in the area, development in an R2 zone is granted an exception by operation of cl 4.4C of the SLEP. For lots greater than, or equal to 1000m2 in area, the applicable FSR for the site is 0.5:1 and it is common ground that the proposed development complies.
As the site is listed in Schedule 5 of the SLEP as an item of local heritage significance, is in the vicinity of heritage items, and is located within the Abbotsford Road HCA, the provisions of cl 5.10 of the SLEP apply and include, relevantly: … (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Strathfield, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) a heritage item, … (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, … (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development - (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. …
The Statement of Significance for the site appears at Appendix F of the joint expert report (and in Exhibit 2, tab 17). As it forms a central part of the heritage experts evidence, it is helpful to re-produce it here as it describes the item in the following terms: "A single storey face brick Federation house with asymmetrical façade. A slate roof has terra cotta ridge capping and finials, gables rendered with half timbering and a ridge gablet. Other elements include oiel de beouf windows, gable over a side entry, rendered chimneys and verandah posts. The fence is beautifully detailed with shaped timber pickets and gate. Verandah infill to the east detracts from the use. The front fence, gates, lawn, gravel driveway and plantings (note rose garden and picking garden to side and rear of property) are all in reasonable order. This Federation house in fair condition, is of local significance for its retention of its setting and architectural detail from the early twentieth century."
According to the Acid Sulfate Soils Map at cl 6.1(2) of the SLEP, the site is identified as being class 5 land.
Due to the excavation required by the basement car park, the provisions of cl 6.2 of the SLEP applies, and requires: 6.2 Earthworks (1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. (2) Development consent is required for earthworks unless - (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given. (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
The Respondent submits that cl 6.3 of the SLEP applies to the site, but that the Applicant has not provided evidence or material as to the applicable flood planning level on the site. That said, the parties are agreed that this matter is resolved by way of a condition of consent.

The approach to the proceedings

At the outset of the hearing, the Applicant sought to tender a written request for variation under cl 4.6 of the SLEP prepared by Mr Andrew Martin dated August 2020 (written request).
The Respondent objected on two grounds: 1. Firstly, the Applicant had, since the grant of leave for amended plans at [2] and until late on the eve of the hearing, maintained in writing to the Court and the Respondent that the application did not rely upon the operation of cl 4.6 of the SLEP. 2. Secondly, allowing the tender of the written request would prejudice the Respondent who could not, within the time allocated for the hearing, adequately consider the written request on either the first or second day.
In reply, Mr Tomasetti SC, counsel for the Applicant acknowledges that the Applicant had previously disavowed reliance on the Affordable Housing SEPP but that did not act as a barrier to adapting its position which it now does.
Furthermore, the written request is not a lengthy or complex document beyond the capacity of the Respondent and its experts to comprehend and may assist in the Court's determination of the matter completely and finally in accordance with s 22 of the Land and Environment Court Act 1979 (LEC Act) to completely and finally determine the matters in dispute and avoid the multiplicity of proceedings concerning any of those matters.
Prior to a ruling on the Applicant's written request, the proceedings were abruptly concluded by the Court's smoke detection and alarm system requiring the immediate evacuation of the Court. I adjourned the matter for an earlier commencement at 9.30am the following day.
At the commencement of the second day of the hearing, the Applicant sought leave of the Court to amend the application by relying upon the following:

Architectural plans that are said to be identical to those entered as Exhibit A, Tab N but with the amendments, when compared to the plans for which leave was granted at [2], clouded. The plans are accompanied by a schedule of amendments. Leave was not opposed by the Respondent subject to costs under s 8.15(3) of the EPA Act and were marked Exhibit F plans.
Record of correspondence between the parties in respect of flooding in the form of emails, marked Exhibit C.
An amended Plan of Management that is said to incorporate duties of the Boarding House manager in respect of waste collection, marked Exhibit G.
A proposed condition of consent that was foreshadowed in respect of the front fence.
An amended BASIX certificate, as the certificate before the Court did not account for the manager's room, marked Exhibit E.

As the Respondent had received, but had not the opportunity to review the documents above, I granted an adjournment to resume at 12pm.
Prior to the adjournment, the Applicant pressed the tender of the written request which the Respondent did not oppose subject to the objections made the prior day and on the understanding that the adjournment would provide the Respondent's planning expert time to consider the written request and provide a written response.
In this way, the manner in which the written request was required to be dealt with effectively dictated the nature of proceedings. While the heritage and planning experts had prepared a joint expert report, the oral evidence of the experts in each discipline was taken separately. Firstly from the heritage experts, and secondly from the planning experts, to allow Mr Apps to consider the written request and prepare a written response.
In the course of events, the time originally allocated for the hearing was exhausted midway through the evidence of the heritage experts and a further date of 12 August 2020 was listed for the remainder of the evidence to be heard.
The response to the written request prepared by Mr Apps was filed with the Court on 11 August 2020 and tendered by the Respondent on the third day of the hearing, marked Exhibit 9.
At the outset of the additional day of the hearing, the Applicant sought to further amend the application and rely upon amended plans and other documents as stated earlier at [3].
While the proceedings unfolded as described above, I propose to set out my reasons in a more ordered manner, commencing with consideration of the written request in respect of cl 30AA of the Affordable Housing SEPP and only then, if I am satisfied as to the matters required of me by cl 4.6(4) of the SLEP will I proceed to consider cl 30A of the Affordable Housing SEPP, after which I will consider the merits of the application.
That said, in order for me to form an opinion of satisfaction in respect of cl 4.6(4)(a)(ii), I must be directly satisfied that the proposed development is in the public interest because it is consistent with the zone objectives.
The third objective of the R2 zone is directly relevant to my consideration of the written request to contravene cl 30AA of the Affordable Housing SEPP as it seeks "T[t]o ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas."
Consistency with the third objective is the subject of dispute between the planning experts. The impact of the proposed development on the heritage significance of the heritage item, adjacent item and heritage conservation area is the subject of dispute between the heritage experts.
The third objective does not expressly require that development of housing not adversely impact the heritage item itself.
For that reason, I intend to consider the effect of the proposed development on the heritage significance of the adjoining heritage item and the Abbotsford Road HCA in respect of the written request, and not of its effect on the heritage significance of the item on the subject site.

Applicant's written submissions, filed 21 August 2020 (AWS).
Respondent's written submissions, filed 28 August 2020 (RWS).
Applicant's written submissions in reply, filed 3 September 2020 (AWSR).

The written request is considered

The Applicant's primary submission is that the effect of cl 29(1) of the Affordable Housing SEPP prevents the refusal of the application on the basis of density of scale as the proposed development complies with the FSR applicable to the site.
Relatedly, the Applicant submits that the Affordable Housing SEPP is drafted with heritage considerations in mind, as cl 29(1)(c) considers FSR in terms of a heritage item or Interim Heritage Order.
I do not understand the provisions of 29(1)(c) to set aside the provisions of cl 5.10 of the SLEP. In fact, I do not consider cl 29(1)(c) to be a relevant consideration in this matter for two reasons: 1. Firstly 29(1)(c) applies where a residential flat building is permitted, unlike in this circumstance where the R2 zone does not permit residential flat buildings. 2. Secondly, where there is no heritage item on the site, unlike in this circumstance where the site is a heritage item.
The Applicant also submits that the provision at cl 30AA of the Affordable Housing SEPP is a development standard amenable to variation in accordance with cl 4.6 of the SLEP because, following Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270, the provision does not prohibit the development in any circumstance but fixes a standard in respect of an aspect of the development, being the number of boarding rooms that may be provided by the development.
Clause 4.6 of the SLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 30AA of the Affordable Housing SEPP, but that power is subject to certain requirements.
As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), 3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and 4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
The Court must form two opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that: 1. the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and; 2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act but should still consider the matters in cl 4.6(5) of the SLEP (Initial Action at [29]).
In support of the proposal, a written request prepared by Mr Andrew Martin dated August 2020 (Exhibit D) states that the site area, being 1858m2, is three times greater in area than the minimum lot size required for a residential dwelling house set out in the Lot Size Map at cl 4.1 of the SLEP and so the theoretical maximum density that can be supported by the site and still comply with the development standard is 36 boarding rooms.
It also sets out grounds as to why compliance with the development standard found in cl 30AA of the SLEP would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard.
In doing so, the written request identifies that the development standard at cl 30AA of the Affordable Housing SEPP does not include express objectives and so it, or they, must be inferred.
In written submissions, Mr Tomasetti SC, counsel for the Applicant, submits that it may be assumed that the standard is directed to the density or number of people occupying a boarding house in the R2 zone on a typically sized allotment in such a zone, with a view to limiting the environmental impact of the population in a low density residential area (AWS, par 86).
But obviously gross floor area can be devoted to spaces that do not contribute directly to population density such as communal areas or circulation spaces.
The written request states the objectives of the development standard are as follows: "To ensure amenity impacts of boarding house development on adjoining and nearby properties such as overlooking, overshadowing and car parking impacts are able to be better managed."
It is important to record at this point that the Respondent's expert planner, Mr Glenn Apps, considers the objective identified by the Applicant to be derived incorrectly.
In support of his view, Mr Apps considers the objective as expressed by Mr Martin to be in essentially the same terms as that which appears in the Explanation of Intended Effect (EIE) (Exhibit D, Annexure B) which is more accurately described as a consequence of the objective and so represents the result and not the objective of the provision.
The EIE describes the proposed change to the Affordable Housing SEPP, at p 8, in the following terms: "The proposed amendment to the Affordable Rental Housing SEPP will provide for a new provision that limits the number of boarding rooms in a boarding house development on the R2 zone to a maximum of 12 boarding rooms. The intention of the proposed amendment is to ensure that the built form of boarding house development in the R2 zone is compatible with the built form of other development in the local area. The proposed introduction of a maximum room number for boarding houses is considered to assist in ensuring that amenity impacts of boarding house development on adjoining land and nearby properties, such as overlooking, overshadowing and car parking impacts, are able to be better managed. …"
This suggests to Mr Apps that the objective of cl 30AA is derived from the intention of the change which is "to ensure that the built form of boarding house development in the R2 zone is compatible with the built form of other development in the local area."
Put simply, the objective then is not to manage 'amenity impacts' as suggested by Mr Martin, but to manage the 'built form'.
The Respondent's written submissions (RWS, par 34) further identify excerpts from a Fact Sheet published by the Department of Planning and Environment (the Department) after the amendment of the Affordable Housing SEPP (Exhibit H) which it submits lends support to Mr Apps' view.
Page 1 of the Fact Sheet states, relevantly: "In February 2019 the ARHSEPP was amended so boarding houses are limited to 12 boarding rooms per site within the R2 Low Density Residential zone to better reflect the scale and built form of the surrounding area. The changes will help manage impacts on neighbouring properties such as overlooking, overshadowing and car parking. …"
Page 6 of the Fact Sheet (using the Fact Sheet pagination) states, relevantly: "… Q: Why was the 12-room limit introduced? A: The 12-room limit was introduced so that boarding house development better reflects the built form and character of the surrounding R2 Low Density Residential Area. …"
The Applicant submits that once an objective is achieved, the achieving of that objective necessarily incorporates the result of that objective and Mr Apps' argument that an objective and its consequence are distinct is a matter of semantics.
In any event, given that no objection can be taken to the density or scale of a boarding house under cl 29(1) of the Affordable Housing SEPP if it complies with the relevant FSR control, Mr Tomasetti considers it difficult to reconcile cl 30AA with cl 29(1).
According to the Respondent's submissions, the provisions are reconciled by a reasonable construction of the provisions contained at Division 3, Part 2 of the Affordable Housing SEPP to achieve a harmonious result.
The result would find that the objective of cl 30AA is to ensure that the built form of boarding house developments in an R2 zone is compatible with surrounding development which is in turn consistent with cl 30A and so does not require refusal on the grounds of 'density and scale' in accordance with cl 29(1) (RWS, par 45).
The parties submit competing objectives in respect of cl 30AA of the Affordable Housing SEPP and ask that the Court prefer one objective over the other.
I accept the Respondent's submission that the objectives at cll 29(1), 30A and 30AA should not be read with contrariety, and are not intended to be contradictory.
So read, the objective preferred by Mr Apps directly addresses built form in the R2 zone which is the subject of the provision and, while neither the Fact sheet nor the EIE have statutory force or effect, there is a consistency before and after the exhibiting of the proposed amendment to the Affordable Housing SEPP recognising the inter-relationship of built form and scale and consequential amenity impacts.
However, in the absence of the objective as framed by Mr Martin, Mr Apps' preferred objective does not, in my view, particularise impacts that are consequential to built form.
Likewise, in the absence of the objective framed by Mr Apps, Mr Martin's preferred objective lacks reference to the primary intent of the provision that is evident in both the EIE and the Fact Sheet published by the Department, and lacks the means to be understood harmoniously with cll 29(1) and 30A of the Affordable Housing SEPP.
Instead of the objectives being mutually exclusive, I am of the view that the two objectives proposed by the parties are complementary and, when read together, comprise both a statement of intent and particularised impacts by which the achieving of the intent is supported.
Understood in this way, the objectives of cl 30AA seek to manage both the built form and the amenity impacts in an R2 zone.
In further written submissions (AWSR, p 7), the Applicant proposes a revised objective in the following terms: "To ensure the number of residents in a boarding house development in the R2 Residential Low Density zone [sic] do not give rise to adverse amenity impacts upon the amenity enjoyed by nearby properties in the same zone and that amenity impacts are adequately managed."
However, for the reasons summarised at [96], I prefer the objectives as originally proposed to me which read, when joined, as follows: "• to ensure that the built form of boarding house development in the R2 zone is compatible with the built form of other development in the local area. • to assist in ensuring that amenity impacts of boarding house development on adjoining land and nearby properties, such as overlooking, overshadowing and car parking impacts, are able to be better managed."
I will now proceed to consider the matters as set out in the written request against the objectives in [99].
The written request states that it achieves the objectives of the standard in ways that may be summarised as follows:

The built form complies with controls such as the floor space ratio and the maximum height of building identified in the SLEP.
Limiting the external wall heights to well under the maximum wall height set out in the Strathfield Development Control Plan 2005 (SDCP) results in no adverse shadowing or overlooking impacts associated with the proposed development.
Side setbacks exceed those applicable to dwelling additions in the SDCP, and the front setback is at least 28m.
All car parking required for the development is contained wholly within a basement level.
A live-in manager, CCTV and a Plan of Management with house rules offers protection to local amenity that, in theory, exceeds the protections available to residents than in the event that development of this scale was for an extended family.
The proposed 25 rooms are evenly distributed across two existing Torrens title lots, with each lot being 37% larger than the minimum lot size.

As Mr Apps' view is that the Applicant has mis-stated the objective, it follows that he also considers the grounds on which the written request asserts compliance with the objectives of the standard are also misdirected. In summary, Mr Apps is of the view that:

While the FSR and height of the building is compliant, the footprint and massing of the development is excessive.
The side setbacks of the proposed development exceed those required by the SDCP for a typical dwelling addition, but the proposed development is not a typical dwelling addition and so the provisions of the SDCP are misapplied.
While overshadowing and overlooking impacts are satisfactory, Mr Apps does not consider that to be an objective of the standard.
The various systems and procedures proposed to regulate occupant behaviour in order to protect the amenity of the area is also not an objective of the standard.

Next, the written request sets out the following environmental planning grounds that it considers sufficient to justify the contravention of the standard:

There are no unacceptable overlooking, overshadowing or carparking impacts.
Side and rear setbacks provide adequate building separation to avoid adverse amenity impacts, and the step down in the site's topography reduces the overall height, bulk and scale of the rear addition when viewed from the street.
The retention and adaptive reuse of the existing heritage dwelling will maintain its historical significance and thematic reading of the character and nature of residential development along Abbotsford Road.
The additional rooms are contained within a well-designed integrated boarding house over a large site as opposed to two separate boarding houses operating alongside each other over two separate lots.
There are two Torrens title lots in existence and the room density is generally compliant when expressed over the two existing lots. The proposal provides 637m2 of boarding room gross floor area (GFA) which is 18.08% less GFA than a compliant boarding house combined over two lots which demonstrates that the GFA of the development is no greater than the theoretical maximum of a fully compliant 12-room boarding house on each Torrens title lot. Put another way, the proposal provides 50 persons on a 1,858m2 site which correlates to 37.16m2 of the site area per boarder.
The proposed development is a permitted use under the SLEP, is consistent with the objects of the EPA Act, provides affordable housing in an accessible area and represents an opportunity to retain and conserve the existing heritage listed dwelling.

Mr Apps considers the grounds set out in the written request as follows:

It is a matter of proper planning and design to address overshadowing and overlooking to adjoining properties but in any event, these are not matters directly related to the non-compliance.
It is also a matter of proper planning and design to provide adequate car parking. That said, if it is feasible to provide parking for 24 room development, then parking for a 12-room development is also achievable. Parking in a basement is an option available in either scenario and so is not a consequence of the non-compliance.
While the site is large in area, it does not follow that two separate boarding houses could be developed given the location of the existing dwelling straddling the two lots. Furthermore, as cl 30AA refers to 'land' and not 'lots', the provision is not applied to each lot, but to the site as a parcel of land.
Subdivision is not proposed, and is not appropriate given the location of the existing heritage dwelling on the site. For this reason, proposing that the GFA of the proposed development is distributed across two lots is a theoretical exercise only.
The footprint of the proposed rear addition is three times the footprint of the existing heritage dwelling which is not considered an 'acceptable urban design fit'.

The matters in cl 4.6(4)(a)(i) are considered

While the objectives of cl 30AA of the Affordable Housing SEPP at [99] vary from the objective originally construed by Mr Martin, I consider the written request to adequately address the second objective of the standard. I accept the proposed development complies with the FSR which is in part a function of the larger site area of the land. I also accept that it complies with the height of buildings control.
Taken together, the FSR and height are integral to the formation of footprint and massing which, in combination with the setbacks and arrangement of rooms do not impose overshadowing or overlooking impacts on adjoining properties, albeit due in part to the mostly solid enclosure of boarding room balconies that precludes a sightline from residents in the boarding rooms. While I consider there to be other adverse impacts arising from the car parking arrangement, I accept that basement carparking does not impose amenity impacts on adjoining land and nearby properties, consistent with the second objective of the standard.
However, the first objective at [99] seeks compatibility with the built form of other development in the local area, which I consider to be distinct from mere compliance with the numerics of FSR, height and side setbacks.
The planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 suggests that both physical impact, and visual impact are relevant when determining whether a proposed development is compatible with its context, which I consider to be a like phrase for the first objective of the standard.
At [26], Roseth SC, as he was then, provides the following guidance: "For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character."
The planning experts agree that the extent of the local area for the purposes of an assessment of character, while not recorded in the joint expert report (Exhibit 3), is the immediate visual catchment extending from Rochester Street to Meredith Street.
The character of the local area as defined above is, according to Mr Martin, set out in par 16 of Exhibit 3. This paragraph is in the following terms: "The local area comprises development including Federation and Californian bungalows, as well as some earlier Victorian examples. The Good Shepherd Seminary is directly opposite the subject site which is a large 2 storey brick building. A number of 1960's style 3 storey residential flat buildings in Burlington Road to the north provide a backdrop to the subject land."
The written request does not expressly deal with compatibility with the urban character of the Abbotsford Road HCA in addressing cl 4.6(3)(a) of the SLEP. That said, a reference can be found to character on p 10 of the written request as follows: "The retention and adaptive reuse of the heritage dwelling will maintain its historical significance and the thematic reading of the character and nature of residential development along Abbotsford Road."
If I infer the statement at p 10 to be referable to the first objective of the standard at [99], I can accept that the written request adequately addresses the first and second objective of the standard at cl 30AA of the SLEP.
In saying this, I note that my satisfaction is not required to be directly formed in respect of the particular matter but as shown by Preston CJ at [25] in Initial Action, I am only required to be indirectly satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a).
Next, in considering those matters required to be addressed by cl 4.6(3)(b) of the SLEP, I accept Mr Apps' position that basement car parking is not an environmental planning ground directly relevant to the particular aspect of non-conformance. Basement car parking could be a feature of a development that complies with the development standard. Alternatively, a development that complies may seek to address car parking in an acceptable manner that may or may not involve a basement carpark.
Furthermore, as the provision at cl 30AA of the Affordable Housing SEPP applies to the land, I do not consider the number of lots on the site to be an environmental planning ground. The survey, contained within Exhibit F, confirms the existing heritage listed dwelling straddles the two lots that comprise the site. It is not suggested that the land be subdivided and it is not suggested that the heritage listed dwelling be demolished.
Likewise, two developments comprising 12 boarding rooms each, and presumably providing car parking for 6 vehicles each, is also not proposed and is not a relevant comparison as the development the subject of the development application is in respect of a heritage listed item that sits, seemingly deliberately, in the middle of a large block and straddles the lots that underlie, within a heritage conservation area.
Finally, the development is said to enable the conservation of the existing heritage dwelling which would, in my view, also be enabled by a development that complies with the development standard and does not relate to the non-conformance with the standard in any way.
While I acknowledge that the written request addresses the physical impacts of the proposed development in respect of the environmental planning grounds as there are no unacceptable overlooking, overshadowing or carparking impacts, I do not consider the written request to have demonstrated that there are sufficient environmental planning grounds to justify the contravention of the development standard as required by cl 4.6(3)(b) of the SLEP.
In addition to those reasons set out at [115]-[119], the written request does not adequately address the visual impacts that contribute to the compatibility of the proposed development with the built form of other development in the local area, which is the first objective of the standard.
Three references to what may be considered visual impacts are found in the written request: 1. Firstly, "the urban design outcomes of the development, incorporating the additional boarding rooms at the rear of the development is an acceptable urban design 'fit' in the locality" (p 10, second dot point). I consider this to be a statement of wide generality that is not further supported by evidence, and the planning and heritage experts are divided on this aspect so the statement cannot be accepted without grounds. 2. Secondly, "Parking for the development is to be provided at basement level, thereby reducing the visual impacts of at grade parking at the rear of the site and the need to reduce the open space and landscaping around the building to the detriment of the garden setting of the area." (p 10, fourth dot point). For the reasons set out at [115], and considering the visual impact of the wide area of hardstand fronting Abbotsford Road, formed by the passing bay in the frontage, I can only conclude that the basement parking reduces the visual impact of at-grade car parking by imposing a visual impact of another sort at the street frontage. 3. Thirdly, "the step down in the level of the site from front to rear reduces the overall height, bulk and scale of the rear building. Eave line maintained to the rear pavilion" (p 10, sixth dot point on the page). If I infer this is in support of [121(1)], it does not address the urban character found in the statement of significance for the Abbotsford Road HCA which states that modern infill is, and so presumably should be in this case, generally unobtrusive.
While I have considered the written request as a whole, and inferred matters contained in the written request in a sequence that varies from the manner in which they are set out, I am unable to conclude that the written request has demonstrated there are sufficient environmental planning grounds to justify the contravention of the standard at cl 30AA of the SLEP.
For this reason, I must also conclude that the Court does not have power to grant consent. I also record here that I am unable to be satisfied, as required by cl 4.6(4)(a)(ii) of the SLEP that it is in the public interest to grant consent as, in my view, the proposed development is not consistent with the zone objective "To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas."
The written request addresses this objective by stating on p 12 that "the proposed design has taken on all of the necessary design cues and scale and form necessary to achieve a compatible visual fit having regard to the conservation area status and heritage item". It then refers the reader to justification in Section 7 of Exhibit D, which I summarise at [101] and which is focused on matters in respect of cl 4.6(3)(a), as distinct from the particular consideration I must give in accordance with cl 4.6(4)(a)(ii).
The focus of the zone objective in question is the impact on the heritage significance of the Abbotsford Road HCA and the adjacent heritage item as stated earlier. For whatever reason, the objective is not concerned with the heritage item itself.
In this case, the local area is within the Abbotsford Road HCA and a statement of significance describes the urban character in the following terms (Exhibit 2, folio 273): "Abbotsford Road contains a consistently high quality streetscape with housing dating from the late nineteenth and early twentieth century. There is some modern infill but generally it is unobtrusive. The streetscape is tied together by mature street planting and well-maintained gardens. Abbotsford Road is of particular significance for its architectural and aesthetic qualities."
The statement at [124] that the proposed design has taken on all of the necessary design cues and scale and form necessary to achieve a compatible visual fit having regard to the conservation area and heritage item' appears to address the built form of the rear addition which adopts a similar roof form and eaves line. It may also encompass "the step down in the level of the site from front to rear that reduces the overall height, bulk and scale of the rear building", (see [121(3)] although it is not expressly stated as a cue taken in respect of visual compatibility.
Part P at section 2.6 of the SDCP contains objective C, which is in the following terms: "… C. To ensure that alterations or additions to heritage properties are sympathetic to the item and reflect the predominant scale, height, proportion, character and setbacks of the existing property, and surrounding development. Control (iii) stipulates that: "Alterations and additions to heritage items must be located so as to minimise their visibility and prominence from the street or adjoining streets, and the height must not be seen above the main ridgeline of the building."
While the parties contest the relevance of Figure 1 of Part P at section 2.6 of the SDCP which supports the above objective and control, I consider the words in Control (iii) to take precedence over Figure 1 which is an indicative, 2 dimensional representation as diagrams in development control plans often are.
In my view, the proposed development does not minimise the visibility and prominence from the street. Instead, the rear addition is a like form and scale of the existing heritage dwelling that is only achieved by excavation in the side setback that is evident in the elevation fronting Abbotsford Road.
I do not accept Mr Lonergan's characterisation that the rear addition is not within the side setback. It clearly is. The balconies and screens to the ground level and first floor level boarding rooms are plainly visible in the south elevation (street) at drawing a201 (Exhibit F).
The drawing suggests that while the site may step down to the rear, the rear addition itself does not. Instead, the ridgeline and eaves line of the roof forms to the rear addition maintain the levels that approximate the existing heritage dwelling despite the fall of the land. In doing so, it presents a different built form than that evident in the existing heritage dwelling. Tall screening to boarding rooms, raised planter beds and other structures more associated with a two storey building are evident.
I also note that the statement at [124] is silent on other aspects of the proposed development where cues appear to be lacking such as the driveway to the basement car park which Mr Martin accepts is measured between 7.7m-8m in width at the front of the property, and which Ms Trueman in her evidence considers uncharacteristic as it has a passing bay at the street frontage.
According to Ms Trueman, this causes the driveway to extend in front of the projecting front gabled portion of the house when viewed from Abbotsford Road and the entry to the basement car park is visible, all of which is uncharacteristic of a property of the period, and inconsistent with the character of the local area.
For completeness, I note that Mr Lonergan counsels that the Court should "not equate heritage items with holy relics", and to that end items of heritage should not be 'mothballed' but be adaptively used. To that end, basement car parking is a preferable arrangement and its entry is 25m from the front boundary.
Furthermore, as for the area of hardstand evident in the front setback, Mr Lonergan refers to a visual analysis of the Abbotsford Road HCA at Appendix H (Exhibit 3) to assert that properties at Nos 96, 102 and 104 Abbotsford Road have straight paths from the street frontage to the house, and that Nos 44, 72-76, 78-80 and 82 Abbotsford Road are all heritage items, and show large areas of driveway and hardstand in the front setback.
My reading of those properties listed by Mr Lonergan in Exhibit 3 as having large areas of hardstand is that they are, in the majority, circular driveways set in large front grassed setbacks with none approximating the wide apron located so close to the street frontage from where the Abbotsford Road HCA is appreciated and, with the exception of No 44 Abbotsford Road, where the driveway abuts the side of the building, is so close to the heritage item as it is in the proposed development. Finally, none of the properties are seen with the driveway apron overlapping the front address to the street in the manner proposed, and as articulated by Ms Trueman at [134].
The Applicant submits that the driveway access is similar to that for which consent was granted in 2013 for a proposal that did not proceed. I record here that I do not consider the features or elements of a prior development application to be a relevant consideration in this matter.
According to Mr Seton, a more acceptable alternative lies in Part P section 2.8, Control (v) of the SDCP which prefers an entry to a basement carpark to be parallel to a side boundary, and not perpendicular to it as it is in this case. Such an alternative may be achievable if the proposal complied with cl 30AA of the SEPP ARH.
As I determine the written request does not demonstrate that there are sufficient planning grounds as required by cl 4.6(3)(b) of the SLEP, it follows that I cannot be satisfied that the written request has adequately addressed those matters in cl 4.6(4)(a)(i) of the SLEP.
Additionally, for the reasons set out at [124]-[137], I am also unable to form an opinion of satisfaction required by cl 4.6(4)(a)(ii) of the SLEP that the proposed development will be in public interest because it is, in my judgment, not consistent with the third objective of the R2 zone.
On this basis, the application should be dismissed and the appeal refused.
Relatedly, as the proposed development is not compatible with the built form of the local area, being an area within the Abbotsford Road HCA, I also conclude that the proposed development is not compatible with the character of the local area as required by cl 30A of the Affordable Housing SEPP.
However, in the event that I am incorrect in the assessment of the written request, I also record here that after weighing the evidence of the heritage experts, I conclude that the proposed development will adversely impact the heritage item and the Abbotsford Road HCA for the reasons set out below.

The proposed development adversely impacts the heritage item and the Abbotsford Road HCA

The experts consider the impacts on the heritage item, and the Abbotsford Road HCA fall into two categories: 1. Additions and alterations. 2. View and setting.

The impact of the additions and alterations

While the Applicant submits that cl 29(1) of the Affordable Housing SEPP prevents the Court from refusing the application on the basis of density or scale, the experts agree that, whether or not this is the case, the provision does not preclude refusal on the basis of visual bulk or siting.
Mr Apps agrees with Mr Tomasetti that the effect of s 4.15 of the EPA Act is that the actions of a consent authority, or the Court on appeal, are guided by the provisions of subs (2) where a proposal complies with non-discretionary development standards.
As the application before the Court complies with the height and FSR, the Court cannot take those standards into further consideration, must not refuse the application on the grounds that the application does not comply with those standards and must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards.
That said, Mr Apps shares Ms Trueman's view that the development standards applicable in this case, being FSR in particular, are also subject to an assessment as to the merit where the FSR has been achieved in the context of the site's heritage significance.
Ms Trueman's evidence in the joint expert report is that the proposed development to the rear of the existing heritage item is over-scaled (par 8), has an uncharacteristic scale, form, bulk and mass (par 77), and will alter the original shape of the heritage item (par 79).
Furthermore, as the Applicant has not prepared a schedule of conservation works, the precise extent of impact on the existing heritage dwelling is unknown, both externally and internally.
In her oral evidence, Ms Trueman considers the meaning of the term 'scale' in respect of heritage practice to be something very different to that in cl 29(1) of the Affordable Housing SEPP, which is consistent with matters of heritage significance sitting alongside those of FSR and other planning-based development controls.
Ms Trueman accepts the definition of 'scale' as it appears in Part P section 2.3 of the SDCP which reads: "Scale is the size of a building and its relationship with its surrounding buildings or landscape. It is important that new development at places of heritage significance respects the scale of the existing buildings and or landscape elements that contribute to the significance of the place."
The question of bulk and scale arises primarily as the proposed addition to the rear of the existing dwelling extends beyond the existing eastern elevation of the dwelling and so is visible from Abbotsford Road, which comprises a part of the setting of the existing heritage dwelling.
The impact not only arises because of uncharacteristic bulk and scale, but also from the demolition of the rear wing and chimney that can be clearly seen from Abbotsford Road, and the addition of the driveway and basement carpark entry, according to Ms Trueman.
Mr Lonergan is of the view that the demolition of the rear wing is not unreasonable given the distance from Abbotsford Road of round 28m, and as a portion of the rear wing is retained in the form of a wall that is incorporated in the rear addition.
As I understand it, the Respondent considers the rear addition to be too big and too close to the existing heritage dwelling so that it becomes overbearing. The preferred relationship between the existing heritage dwelling and the rear addition is in a manner shown in Figure 3 (Exhibit 1, folio 269), which would involve a single storey indented 'link'.
Mr Apps acknowledges the rear addition would assist in screening the uncharacteristic residential flat building to the rear of the site but only if the form, materials and detailing of the proposed development is more sympathetic to that of the heritage item. A diagram on p 12 of the joint report shows Mr Apps' preferred arrangement for a rear addition with a matching width to the existing heritage dwelling.
It is an arrangement not unlike that evident in the adjacent heritage item at 53 Abbotsford Road which Mr Lonergan considers to be invasive but, as he observes, was obviously approved.
Mr Lonergan's view of the impact of the driveway and basement carpark entry on the heritage item, and the Abbotsford Road HCA is summarised at [135]-[136]. The brick kerbing and gravel drive that was once an aspect of the heritage item is now gone and, along with the rear garage structure, were later additions in any event.
Adjoining the driveway is a access ramp and balustrade that Mr Lonergan considers to be consistent with the contemporary interventions on the site, and a common aspect of adaptive reuse.
A Google streetview image tendered by the Respondent (Exhibit 8) is said to show all will be highly visible from the Abbotsford Road HCA and it is the cumulative effect of the driveway, passing bay, basement carpark entry, ramped access, balustrade and the bin storage structure (proposed at the time of heritage evidence but subsequently amended) that adversely impacts on the heritage item and the Abbotsford Road HCA according to Ms Trueman.

The impact on the view and setting

An important aspect of the heritage experts evidence is what is meant by the term 'setting' as it appears in the Statement of Significance.
Mr Tomasetti submits that reference to the setting could mean its setting or siting in the street, or in the local area.
Ms Trueman considers the setting to be better defined as the existing dwelling on the block of land on which it sits, the open space in which it is placed, and the elements also referred to in the Statement of Significance including the garden and fence, and the views of the dwelling from and to the street.
The existing heritage dwelling is located in the approximate centre of the site, which is a 'double block'. Mr Lonergan suggests the position is coincidental, not intentional, and it was not uncommon for development to 'slide around' on lots, only for lots to be adjusted after.
I do not accept Mr Lonergan's suggestion that the dwelling, when erected, was sited by accident. There is no evidence of this, and the dwelling straddles two allotments that could not have been unknown at the time of its construction.
I prefer and accept Ms Trueman's evidence that the setting is that defined in the statement of significance to comprise "the front fence, gates, lawn, gravel driveway and plantings", and not the wider setting of the house in the street which is more properly considered the contribution made by the property to the Abbotsford Road HCA.
According to the evidence of the heritage experts, the view and setting are influenced by the relationship of built form and landscaping.
In general terms, Ms Trueman considers the traditional garden setting of the existing house to be a feature of its significance and the proposed landscaping would have an adverse impact on the heritage significance of the item as a whole. The garden setting establishes the traditional curtilage of the house and its retention is important for the significance of the site. Original elements such as garden beds, lawns and trees are proposed to be removed, and uncharacteristic elements are proposed in their place.
Some of these characteristic elements such as plantings, are evident in images contained in the Statement of Heritage Impact prepared by Mr Zoltan Kovacs at Exhibit A, Tab (g).
In Ms Trueman's view, the proposed landscaping design is uncharacteristic of the period as it is formalistic, with straight paths and large sections of lawn.
When the area of the driveway and paths, which appear to be paved on a concrete substrate, are considered, the area of hardstand in the front setback is uncharacteristic of the Abbotsford Road HCA.
In Mr Lonergan's view, it is rare for a house such as this to be set in original gardens. Where it is the case, there is likely to be high aesthetic or even scientific significance. However, this is not the case on the subject site.
In any event, the rear additions are, in Mr Lonergan's view, best described as being to the rear of the existing heritage dwelling, and not to the side (emphasis added), and proposed landscaping will soften and screen the proposed development when viewed from Abbotsford Road.
As stated at [169], I consider the setting of the existing heritage dwelling to be that described in the statement of significance, and comprising those elements identified by Ms Trueman in her evidence.
While Ms Trueman considers the landscape design and paths to be excessively 'formalistic', I am of the view that this alone does not adversely impact on the heritage significance of the item. There is so little of the original garden setting remaining that it cannot be said to be lost due to the proposal, and substantial landscaping is proposed, although only one tree appears proposed to perform the function of screening the new rear addition.
That said, I accept Ms Trueman's evidence that the elements proposed in the front setback and western side of the existing heritage item have a cumulative impact that will dominate the south western quadrant of the site. The hardstand driveway and passing bay, kerbing, ramp and balustrade are not similar in form or finish to those driveways surveyed by Mr Lonergan.
Being closest to the Abbotsford Road HCA, these elements will be highly visible and I conclude that these elements will dominate the frontage to the detriment of its heritage significance and that of the Abbotsford Road HCA.
In arriving at this conclusion, I also consider the late amendment proposed by the Applicant to the waste management on the site to cast further doubt on the compatibility of the driveway and basement carpark entry with the Abbotsford Road HCA.
As I understand it, waste is now proposed to be stored in the basement carpark itself. This leaves the bin storage platform that is currently located over the basement carpark entry opening redundant. If it is retained, its form and function is unclear. If it is removed, as now proposed (AWSR, p 33) it would have the effect of making the basement carpark entry even more visible from Abbotsford Road.
I also note the construction of the access ramp, located adjacent to the driveway, is currently proposed to be concrete, and formed by pouring the concrete against the existing heritage dwelling. Mr Lonergan concedes a different detail is preferred to ensure contemporary interventions are independent of the heritage fabric.
In short, while it is conceivable that an appropriate detail can be developed, it is not yet in evidence and the lack of attention to such detail does, in my view, demonstrate the value of a schedule of conservation works that would assist to clarify such detail and ensure the heritage significance of the item is appropriately respected in any future development.
The absence of such a schedule of conservation works may also have identified earlier the works required to conserve, or adapt the manager's accommodation which now, by the late deletion of the manager's ensuite, leaves the manager without a dedicated bathroom. While there is a shared unisex accessible toilet close by, it cannot go unobserved that the removal of the ensuite leaves the manager without access to a shower.

Costs

As stated at [65], the Court directed parties to provide written submissions following the conclusion of the hearing.
The Respondent's reservation of costs under s 8.15(3) of the EPA Act was not resolved prior to the hearing concluding, but are addressed by the parties' written submissions.
The Respondent submits that the amendments, which it lists, have a cumulative impact that require careful assessment against in the sensitive context of heritage significance.
I accept the Applicant's submission that, collectively and individually, the amendments listed are minor.

Orders

The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans at [49]. 2. The appeal is dismissed. 3. Development consent for Development Application No. DA2019/026 seeking consent for alterations and additions to an existing dwelling of local heritage significance known as 'Goongirwarrie' and its adaptive re-use as a boarding house containing 24 boarding rooms, 1 manager's room, manager's lounge and kitchen, reception, communal kitchen and laundry, business centre, a communal lounge, outdoor communal open space over basement parking accommodating 16 cars, 5 motorcycles and 5 bicycles at 55-57 Abbotsford Road, Homebush is refused. 4. All Exhibits 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: 02 November 2020

(2001) 116 LGERA 319

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