Hamdan Co Group Pty Ltd v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2018-04-13

Judgment

COMMISSIONER: This appeal, lodged pursuant to the provisions of former s 97 (1), now s 8.7 (1), of the Environmental Planning and Assessment Act 1979 (the Act), is against the deemed refusal by Canterbury-Bankstown City Council (the Council) of Development Application 213/2017 (the application). The application is for the development of a boarding house at 116 Croydon Street, Lakemba (the site).
The site currently contains a single storey dwelling house with a garage to the rear accessed by a driveway along the southern boundary. It is situated on the eastern side of Croydon Street, has an area of 607.5m², a frontage of 12m and a depth of 50.5m.
The application was lodged in June 2017 and proposed to demolish the existing structures and erect a 4 storey boarding house containing 34 boarding rooms, a manager's room, communal rooms and associated car, motor cycle and bicycle parking in a basement car park accessed from a driveway adjoining the site's southern boundary. The development exceeded the height permissible in the Canterbury Local Environmental Plan 2012 (the LEP) to accommodate a lift overrun. A flat roof was proposed.

Relevant Planning Controls

The application was lodged under the provisions of the LEP. The site is located within the R4 High Density zone and a boarding house is a permissible use in that zone.
The objectives of the R4 zone are as follows:

To provide for the housing needs of the community within a high density residential environment.
To provide a variety of housing types within a high density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.

The application is required to be assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP).
Under clause 29 of the SEPP, development consent cannot be refused on the grounds of density or scale if the development complies with specified FSR controls and is not more than the maximum building height permitted by the LEP. It was agreed that the development met both the FSR and height requirements of the LEP and of the SEPP as well as other provisions of cl 29 in terms of room sizes, parking, solar access to communal living rooms, and provision of private open space for residents and the manager.
The only SEPP standard on which development cannot be refused if complied with contended by the Council to not be met was landscaped area, specifically cl 29(2)(b) whereby development cannot be refused on the basis of landscaped area "if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located".
The development also met all of the standards required under cl 30 of the SEPP. However, the Council contended the development did not meet the provisions of clause 30A, whereby the consent authority, in this instance the Court, cannot consent to the development of a boarding house "unless it has taken into consideration whether the design of the development is compatible with the character of the local area".
The parties therefore agreed that landscaping and local character were the only SEPP provisions which remained in contention following the amendments to the proposal. However, the Council contended that there were also amenity impacts to consider as well as the site isolation of No. 114.
Detailed controls for development are found in the Canterbury Development Control Plan 2012 (the DCP). Chapter C7 is titled: "Boarding Houses" but contains only one provision as follows: Boarding house is defined under LEP. Boarding houses can be carried out under State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordability SEPP) and the LEP. Where a development application is required, an assessment of the relevant provisions of the Affordability SEPP and LEP will be undertaken.
The DCP, at Chapter C4, also contains provisions for RFB development including minimum lot sizes and frontages, isolated sites, open space, external wall height and storey controls, and setbacks. The height of RFBs, where the maximum LEP height is 11.5m (the height applying to the appeal site), is to be a maximum of 3 storeys with a maximum external wall height of 10m.
It was in dispute between the parties as to whether regard should be had to the RFB controls in Chapter C4 with the applicant contending they did not apply to boarding houses and the Council contending they were relevant to determine the proposal's compatibility with the local character.

Site Isolation

The Council contended that the proposal would result in the isolation of 114 Croydon Street which had an area of 607m² and a width of 12.06 m. It is also contained in the R4 zone.
The Council referenced the Court planning principles in dealing with site isolation established by Tuor C in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 as outlined below: 17 The general questions to be answered when dealing with amalgamation of sites or when a site is to be isolated through redevelopment are: · Firstly, is amalgamation of the sites feasible? · Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible? 18 The principles to be applied in determining the answer to the first question are set out by Brown C in Melissa Grech v Auburn Council [2004] NSWLEC 40. The Commissioner said: Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application.Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979. 19 In the decision Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189, I extended the principles of Brown C to deal with the second question and stated that: The key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity.To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road.The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments.
The Council acknowledged that there were no site isolation or site width provisions in the DCP for boarding houses but, given the site was in the R4 zone, considered that the RFB site isolation provisions in Chapter C4 were appropriate to apply given Karavellas.
Part C4.2.1.2 Isolated Sites states: Isolation of sites occurs where a property that adjoins a development site would be narrower or smaller than required to be developed under Canterbury LEP. Consequently the isolated site would be incapable of accommodating the form of redevelopment envisaged by the planning controls.
The objectives of the provision are to ensure sites are not sterilised by adjoining development so as to be incapable of being reasonably developed under the applicable controls. The DCP accordingly requires that applicants undertake negotiations with neighbouring owners to seek amalgamation for co-ordinated development if isolation would otherwise occur. If neighbours do not agree on terms for amalgamation, evidence is required of reasonable offers having been made including at least 2 recent independent valuations. The applicant is also required to prepare an indicative schematic design of the site being isolated and that site is to retain a reasonable level of amenity.
In this regard, the Council contended that the proposed development would not enable No. 114 to be redeveloped in a manner that achieved compliance with the applicable controls for a 3 storey RFB given the site's width and the DCP controls, with only minimal side setbacks being possible and consequently impacts on amenity for future and adjoining residents. It was argued even a dual occupancy required a minimum site width of 15m. Development of No. 114 would therefore not meet the objectives of the zone for orderly and economic development and be inconsistent with the principles of Karavellas noting the amalgamation with No. 114 was feasible.
Whilst initially contending that reasonable attempts had not been made by the applicant to purchase No. 114, at the hearing the Council accepted that such attempts had reasonably been made unsuccessfully.
Ms Duggan argued that Karavellas did not apply as that was a case where specific amalgamation provisions were incorporated into the controls as was not the case in this instance. Further, the Council had the opportunity to have specific site isolation and site width provisions apply to boarding houses in the DCP but had chosen not to include such controls unlike the provisions for other forms of residential development.
Nevertheless, the expert planners considered that site isolation was a relevant consideration and that the planning principles from Karavellas should be considered.
In this regard, the applicant had prepared a scheme demonstrating that a boarding house of the same design as proposed for the appeal site could be situated on No. 114.
The local character test is discussed further later. However, relevant to the site isolation issue, Mr Gosling was of the view that the DCP's vision for the locality is for 3 storey RFBs on sites at least 20m wide. The proposal would be inconsistent with this provision and would result in development of No. 114 also being inconsistent with this vision but the only redevelopment opportunity given its site width. Therefore, should two adjoining boarding houses be constructed at No. 114 and the appeal site, both developments would be incompatible with the prevailing character and would sit uncomfortably in the streetscape. This would be due to the reduced setbacks, lack of landscaping opportunities and the building form being much narrower than other buildings in the street. There would also be adverse privacy impacts as a consequence.
Mr Kennan did not agree that this was the case and it was argued that there should not be an assumption that all properties would be redeveloped for RFBs, with a range of other dwelling types being permitted. Ms Duggan re-iterated that the RFB controls could not be applied to boarding houses.
No design issues were raised with the proposed boarding house scheme prepared by the applicant for No. 114 other than in terms of the streetscape impact that two adjoining boarding houses on narrow sites would have.
Once privacy issues were addressed, other than the outlook to the development from the rear yard, the Council also did not raise any specific contentions in terms of the amenity impacts associated with the continued use of No. 114 as a dwelling house. No. 114 is to the north of the appeal site and there is a minimum 3m setback of the upper levels of the proposed development from the common boundary to this property.

Compliance with development requirements

As indicated, the only SEPP requirements in dispute between the parties were the adequacy of the front landscaped area having regard to cl 29(2)(b) and the local character compatibility consideration required under cl 30A.
The Council acknowledged that the only provision of the DCP that applied to boarding houses only required compliance with SEPP and LEP provisions. However, the Council submitted that the RFB provisions of the DCP gave guidance in the absence of other controls and also an indication of the desired character of the area. These were in terms of factors such as building separation and setbacks, number of storeys, and landscaping. The proposed boarding house did not meet a number of these controls.
The development provides a front setback of 6m, which is the same as is required for RFBs, and a rear setback of 5m, with an RFB requirement of 6m. Side setbacks proposed range from a minimum of 200mm to 2m at ground level. This increases to a minimum of 2m at upper levels from the southern boundary and 3m from the northern boundary. The RFB side setback control is a minimum of 4m.
In submissions, Ms Duggan argued that the Council was trying to apply controls that don't apply to boarding houses. The development meets all of the required development standards of the SEPP and of the LEP, namely height and FSR compliance.
The applicant also argued that the development provided a 6m front setback as was required for RFBs and this area would be landscaped including with a canopy tree. Further, that the form and design of the development was compatible with other development in the local area which contained varied dwelling styles, uses, setbacks and landscaped treatments.
The amended SFC (Exhibit 2) states, and the site view confirmed, that Croydon Street contains a mixture of development types and styles, including detached single storey dwellings and 2-3 storey RFBs (with ground floor parking and landscaping) with one 4 storey RFB at the southern end of the street. However, Ms Duggan noted that the street also contained the St Basils aged care facility, a child care centre and a hotel.
The Council maintained however that the 4 storey element with a flat roof and the inadequate separation from neighbours resulted in inadequate side landscaping and consequent amenity impacts as well as a built form incompatible with the character of the local area.
In terms of the cl 30A character test, the Council argued that 4 storeys was atypical in the street. The applicant argued that was at least one 4 storey RFB in the street and the proposed front building facing the street was only 3 storeys with a pitched roof. Ms Duggan also submitted that the rear 4 storey element would be setback in excess of 16m from the street suggesting that its visibility in the local area would be limited.
Mr Kennan further argued that, given the floor-to-ceiling heights required for boarding houses were less than for apartments in RFBs, the 4 storey element of the proposed boarding house was comparable to the height of a compliant 3 storey RFB.
In dealing with the character compatibility question, Mr Seton took the Court to Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at paragraphs 22-24 which state as follows: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?
The applicant argued that there were no unreasonable physical impacts on neighbours and the development was in harmony with the character of the street, noting it was a different form of development to an RFB and therefore did not have to be developed as if it were an RFB to be compatible.
However, Mr Gosling had concerns with the limited separation between the proposed building and St Basils to the south. He argued that the applicant could have amalgamated with the lot to the north to provide greater frontage and therefore greater side setbacks and landscaping.
Ms Duggan submitted that, whilst it may have been preferable for the site to be amalgamated with the adjoining site, this has not been possible as the owners did not wish to sell.
Mr Kennan also took the Court to an aerial photo of RFB development in Croydon Street (Exhibit K) to demonstrate that a number of RFB's had side setbacks of less than 4m contrary to Council's contentions.
Mr Seton submitted that it was relevant to consider desired future character in determining local character citing the Court's decision in Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270 where Tuor C held that likely future character was a relevant consideration in determining compatibility for the purposes of cl. 30A. The Council's argument was that the area was likely to undergo redevelopment for RFBs which were required to comply with relevant controls including site width and side setbacks, none of which were met by the proposed development.
Ms Duggan submitted that the SEPP did not reference desired future character and it was unreasonable to argue that the development could only be consistent with the streetscape and local character if it was developed in accordance with RFB controls. A variety of development was permissible in the zone which did not need to meet those controls, including that proposed by this application. It was argued that the Council should not mandate or assume that every site in the zone be developed for RFB on wide sites when a range of dwelling types, including boarding houses, were permitted and the zone objectives sought a variety of dwelling types.
Furthermore, the application could not be refused on the basis of its height or bulk if the height and FSR were complied with resulting in a specific built form outcome, and those controls were met. The Council therefore could not use the 'character' provision of the SEPP to override the core development standards of the SEPP and the LEP all of which were met by the application.

Amenity impacts for neighbours

The experts agreed that the standard minimum side setbacks for RFBs of 4 metres did not apply. Further however that, whilst the DCP doesn't have specific boarding house controls, it was not reasonable to have setbacks which resulted in unreasonable adverse amenity impacts for neighbours. Therefore a merit assessment of side setbacks was required.
The Council did not raise a concern with the northern or front setbacks but with the potential impact the development would have on neighbours to the south and east (rear).
In this regard, the expert planners agreed there would not be unreasonable overshadowing of No. 114. The Council was however, concerned at the visual bulk of the development when viewed from this and other adjoining properties.
The Council was also concerned with the outlook, daylight and solar access implications for St Basils, and privacy/overlooking of the RFB at the rear.
In terms of St Basils, Ms Duggan argued that there were no numeric controls for solar access to aged care facilities and maintaining such access for communal indoor areas should not be required, although she accepted that a reasonable level of amenity for residents had to be provided.
SJB, on behalf of St Basils, submitted that, whilst the amended development complied with FSR and height controls, its bulk, scale and built form were commensurate with that of an RFB. Therefore, it was not unreasonable to consider the development in the context of RFB controls. In this regard, it had smaller setbacks to adjacent properties than would be required for RFBs.
SJB submitted that the bulk of the building with minimal side setbacks would result in significant overshadowing with less than 15% of the communal open space receiving less than one hour of solar access between 9am and 3pm in mid-winter. This would have a detrimental impact on the amenity of St Basils' residents many of whom were unable to leave the property due to their health. The overshadowing would be in a location in which residents currently enjoy fresh air as well as solar access. It also appeared that the north facing openings to the internal communal spaces, being dining and living rooms, and at least two resident rooms, would receive less than an hour of solar access between 9am and 3pm at mid-winter.
SJB also advised that the proposed side setback would significantly reduce the potential for future development of St Basils where there was a strong prospect that St Basils would seek to upgrade and add to their residential care facilities. The proposed 2m side setback would effectively inhibit future compliant development at 130 Croydon Street which was an unacceptable burden placed on St Basils.
The applicant indicated that the boarding house design had been amended to provide a break in the building in an endeavour to maintain some solar access to and outlook from the communal outdoor area of St Basils. It was also noted that part of the courtyard areas were already covered by a pergola and would therefore already be overshadowed, and this outcome was not reflected in the overshadowing analysis undertaken.
In evidence, the expert planners agreed that the windows of residents' rooms in St Basils which overlooked the courtyard would still receive 3 hours of solar access in mid-winter however, a window at the rear of the complex close to the boundary would only receive one hour. The courtyard areas would receive some mid-winter solar access as a consequence of the amended design.
It was also agreed that any compliant development of the appeal site would affect the solar access to St Basils given the location of the outdoor courtyards immediately adjacent to the southern side boundary of the site.
In this regard, Mr Gosling accepted that the amended design with two buildings separated by central communal open space would have less of an overshadowing impact on the St Basils than constructing one building across the site even with a 4m setback from the common boundary. However, he sought both this design and a 4m side setback.
In terms of other impacts on neighbours, the Council argued that there was minimal deep soil landscaping adjoining the common boundaries given the extent of the basement but agreed that the landscaping strip along the southern boundary proposed in the amended application would assist in minimising impacts and improving outlook.
The Council's concerns with impacts to the RFB at the rear were the potential overlooking impacts to apartments at No. 266-272 Haldon Street primarily in terms of the overlooking of a balcony and several windows from the windows of the upper level rear boarding rooms.
Mr Kennan argued that there was sufficient building separation to the apartments to preclude overlooking, of at least 10m, and that the windows and balcony were offset from the boarding house rooms. Nevertheless, the applicant would agree to fixed privacy louvres. Mr Gosling accepted these would address the privacy issues in terms of the development to the rear.

Amenity for future boarding house residents

The Council initially contended that there would be poor amenity for future residents as a consequence of the lack of a lift, limited separation between the proposed buildings impacting the privacy of a number of rooms, and proposed floor-to-ceiling heights of a number of rooms.
A lift is proposed from the basement car park to the ground floor but not to the floors above. This would require residents of upper level rooms to use stairs including to access the communal areas, which the Council considered unacceptable, including that it would likely result in less use of these areas.
The Council also raised concerns with privacy in terms of the east facing windows of the front building facing the west facing windows of the rear building. In response, the applicant increased the separation between the two proposed buildings from 6m to 7m and agreed to provide semi-translucent privacy screens to the windows of the affected rooms in the front building.
The application was also amended to address the Council's concerns with the floor-to-ceiling heights of rooms in the rear building by providing a minimum 2.4m height. However, two rooms remained in the front building that did not meet this height as a result of the pitched roof. The Council considered that these rooms would have reduced amenity as a consequence, particularly given their limited depth and privacy treatments proposed to their windows.
Conditions of consent were filed with the only conditions not agreed to between the parties being those relating to converting the two affected single boarding rooms into one double room in order to achieve minimum 2.4m floor-to-ceiling heights for all boarding rooms.
Whilst the applicant argued that the proposed rooms would have adequate amenity, if the Court required it, the applicant agreed to accept the Council conditions requiring the conversion of the two rooms in question to comply with the minimum floor-to-ceiling height sought by the Council.

Findings

Notwithstanding the concerns raised by the Council and St Basils, I find that there are no substantive grounds for the Court to refuse consent to this application. It complies with all of the mandatory development standards of the SEPP and of the LEP, including achieving maximum height and FSR compliance.
In terms of site isolation, the Council accepted that there were no specific site isolation or lot width requirements in the DCP for boarding houses and that reasonable, albeit unsuccessful, attempts had been made by the applicant to acquire No. 114.
I agree with the Council that, notwithstanding the DCP does not contain site isolation provisions for boarding houses, it is relevant to consider if the proposal would result in the isolation of an adjoining site and preclude it from redevelopment given its location in a high density residential zone.
However, I also accept the applicant's argument that it should not be required for the applicant to ensure that adjoining owners can redevelop their site to the highest and best use of an RFB when those owners do not agree to sell their site to the applicant at a market rate to create a sufficiently wide site to enable an RFB redevelopment over both properties.
Given the Council acceptance that offers based on valuations had been made by the applicant and rejected on more than one occasion, reasonable attempts had been made to acquire the adjoining site to avoid its isolation. Furthermore, the applicant prepared a scheme indicating that No. 114 could be redeveloped for a boarding house with a similar development yield and outcome as is proposed by the applicant at No. 116.
The primary opposition to this outcome from the Council was that two boarding houses in the area would be even less compatible with local character than one boarding house. For the reasons I outline later, I do not accept that this would be the case given the boarding houses would be in a zone where such uses are supported and not required to be on sites with any designated minimum width or area.
Therefore, whilst regrettable, the isolation of No. 114 is not, in my view, a basis for refusal of the application.
Given this finding, the assessment of the application is that it is for a boarding house on a site which is therefore constrained by its width, area and context. In my view, the application as amended proposes a form of development that has had due regard to both this context and its neighbours given the inability to acquire and include the adjoining site at No. 114.
The site view and the streetscape analysis prepared by the applicant (Exhibit A) indicate that the local area, insofar as it relates to Croydon Street in particular, contains a diversity in dwelling styles and density. Development comprises RFBs up to 3 and even 4 storeys, single storey dwelling houses and a 2 storey aged care facility.
Whilst I do accept that RFBs are generally in a landscaped setting with side setbacks in excess of that proposed for the boarding house, it was also demonstrated that side setbacks varied and included lesser setbacks than sought by the Council, including those of some RFBs and St Basils.
I also agree with the applicant that it is not appropriate to require that boarding houses, which do not have specific controls under the DCP notwithstanding the DCP could include such controls, must meet the RFB controls, including in order to be compatible with the character of the local area. If it were the case that the same setback and site width controls for RFBs should apply to boarding houses, the DCP could, but does not, require this.
Nevertheless the development proposes a 6m front setback, consistent with front setback requirements for RFBs and a 5m rear setback, not a significant departure from the 6m required for RFBs. Canopy trees are proposed in both the front and rear setback areas and the planners agreed that privacy screens would address any concerns in terms of overlooking of neighbours. Furthermore, the balconies and windows of the RFB to the rear, which overlook the site, are offset and are in excess of 10m from the proposed rear building.
The application was amended with the front building confined to 3 storeys and containing a pitched roof to reflect the prevalence of pitched roofs in the locality. Whilst a flat roof and a 4 storey element is retained for the rear building, the extent of these elements would not, in my view, be of such magnitude to conclude that the development would be incompatible with the character of the local area.
In this regard, I also note, that whilst it might be visible from some vantage points and immediately adjoining properties, the rear building would have limited visibility from the street. Furthermore, the overall LEP height control is not breached and therefore, under the SEPP, the height can not be a ground for refusal. It is therefore difficult to see how the height proposed could be said to be incompatible with the local character, existing or permitted.
Whilst I agree with the Council that compatibility with the local area should include a consideration of desired future character that does not, in my view, assist the Council in this instance.
Firstly, unlike areas which are yet to reflect likely future character in terms of redevelopment, much of the local area has already been developed for RFBs and there was no evidence to suggest development on these sites would change significantly in the future. Secondly, the zone objectives encourage a variety of dwelling types which translate to a likely diversity in future built form outcome. Therefore, development which does not reflect an RFB outcome, with the associated design controls, should not be considered to be incompatible simply because it isn't an RFB.
Secondly, the local area also includes sites on the opposite side of Croydon Road which have lower permissible FSR and height controls under the LEP. These sites will therefore not be redeveloped for RFBs to the same scale or height as is permissible on the appeal site or adjoining sites on the eastern side of Croydon Road, further reducing any consistent future built form outcome in the local area.
The development will appear in the streetscape and local area not dissimilar to higher density residential development even if it is not an RFB and will be as compatible with the existing character as the RFBs, dwelling houses, aged care complex and non-residential uses within the local area. Whilst it may be a different use to its neighbours, I have therefore formed the view that the proposed development, as amended, is nevertheless compatible with these development forms albeit on a narrower site.
The development will also add to the variety of development types in an area which has been transitioning through redevelopment over time in response to the range of uses and form of more intense development supported and envisaged by the zoning.
Having regard to all of these factors, including the amendments to the application in terms of the façade, height, front setback, landscaping and roof style, I am therefore satisfied that the compatibility test of clause 30A of the SEPP is met.
In contrast, the Council's local character assessment was focused on compliance with RFB controls and outcomes which do not apply rather than the form and nature of the proposed use which is a boarding house where compliance with the bulk and scale requirements of the SEPP are met translating to the height and FSR proposed.
Had an RFB been proposed, then greater side setbacks would likely have been required or achieved but that is not the application or proposed use before the Court. Nor is it the only permissible use or form of development in the zone. The proposed boarding house on a narrow site still meet the zone objective, arguably moreso than if all sites in the zone contain RFBs which was the premise of much of the Council's evidence.
In terms of cl 29(2)(b) of the SEPP, I am unable to conclude that the proposed landscaped treatment is incompatible with the streetscape. The application was amended to introduce additional landscaping along the southern side boundary and in the front setback. The site view indicated that there is a variety of landscaping provided in Croydon Street not only for RFBs but for all development. In particular, there is diversity in the quality and extent of landscaping. Whilst it is the case that RFBs on wider sites in the area unsurprisingly have more extensive landscaping, given the required setback controls associated with RFB development, there was no evidence of uniformity in either the location or extent of landscaping in front setbacks to such an extent as to require a particular form or extent of front landscaping in this application.
Again, the Council's evidence focused on a comparison with the landscaping of RFBs in the street. Not only did the evidence suggest this varied, albeit I accept the majority of RFBs were in landscaped settings, it is also the case that other developments do and can exist in the street and it is not appropriate to have regard to only the landscaping of RFBs to establish landscape compatibility with the streetscape.
The SEPP only requires that the development cannot be refused on the basis of the front landscaping proposed if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located. The front setback is the same as that required for RFBs and I note the type of landscaping in this area is not opposed by the Council, only its width. In my view, the amended landscaping proposed in the front setback is not inappropriate for the proposed development, which is not an RFB, nor within the streetscape in which it is located. Therefore the landscaping proposed is not a basis for refusal.
In terms of the remaining contentions raised by the Council, in my view, the overshadowing of St Basils was the most significant issue as it is evident that there will be some adverse overshadowing impacts to communal, including courtyard, areas and to some resident's rooms, which is not desirable.
In this regard, I do not accept that the amenity considerations in terms of impacts on aged care residents, such as those in St Basils, should be lesser than for residents of other forms of residential accommodation simply because there are no specific controls for maintaining solar access to aged care facilities. Indeed the fact that the impact, particularly in terms of solar access, is on dementia residents who are confined to their rooms and a secured courtyard area suggests that increased emphasis should be given to preserving their amenity.
It was evident that the applicant accepted that adverse impacts on St Basils should reasonably be minimised and endeavoured to maintain a degree of solar access to the rooms and courtyards of St Basils by amending the application. The main amendment undertaken to improve solar access was to separate the development into two buildings and remove building bulk adjoining St Basils' northern courtyard areas, replacing it with open space.
The Council's expert planner accepted that this design feature would have less of an overshadowing impact on the courtyards than constructing one building across the site even with a 4m side setback. That suggests that a setback compliant RFB on the site would have a more significant solar access impact on St Basils than the boarding house now proposed. However, Mr Gosling sought both this design feature and a 4m setback. In my view that places an unreasonable constraint on the development of the site which, under any redevelopment of the site for higher density development supported by the zoning, would impact development to its south. I also note the overshadowing is not a result of breaches to the LEP height control.
Whilst there will therefore be, regrettably, some adverse solar impacts to St Basils that is, to an extent, a result of the layout and design of the St Basils' complex including open courtyards immediately adjoining a side boundary, albeit understandable given their northern location.
I therefore agree with Ms Duggan that the location and configuration of St Basils makes the facility vulnerable to adverse solar access impacts from any reasonable redevelopment of the appeal site under the R4 controls. St Basils has, in the design of their spaces, effectively borrowed amenity from the appeal site by locating courtyards and orientating some rooms and balconies in close proximity to the common side boundary with the appeal site, which is currently underdeveloped containing only a dwelling house with a large rear garden.
Whilst constrained by its frontage and isolation, the LEP controls permit development on the appeal site to the height proposed and some form of development commensurate with the LEP height and FSR controls would be reasonably expected to occur.
On balance, I have therefore determined that the degree of impact on the solar access to St Basils is acceptable in the circumstances.
Whilst SJB argued the development impacted the potential for redevelopment or upgrading of St Basils, no details were provided to the Court in this regard. However, any redevelopment involving additional height would need to be setback in any event from the common side boundary and could also potentially impact the outdoor courtyard areas of St Basils. In the absence of details on what may be proposed it is difficult to see how the application would unreasonably restrict the future upgrading of St Basils given its existing proximity to the boundary and the need to maintain amenity for its existing residents.
In terms of the amenity for future boarding house residents, I see no basis for not requiring all rooms to achieve a minimum floor-to-ceiling height of 2.4m and thus improve the amenity for occupants, particularly given the room depths and privacy treatments proposed for the two rooms that currently do not comply with this minimum.
The two affected rooms each have only one window for access to light and outlook and fixed semi-translucent privacy screens are proposed to these windows. In my view, there is therefore justification for the minimum 2.4m floor-to-ceiling height sought by the Council which will necessitate the two single rooms proposed each with a single window converting to one double room with two windows. That condition, accepted in any event by the applicant if required by the Court, is imposed accordingly. It brings the total revised number of boarding rooms to 21.
A condition is also imposed agreed to by the applicant for privacy measures to address all of the privacy contentions raised by the Council.
A lift is proposed between the basement and ground floor but not above. Whilst this will mean residents of rooms on upper levels will need to access rooms via stairs, this is not atypical for 3 storey RFBs and I note only 4 rooms will be located on the uppermost level. For this reason, I do not consider the lack of a lift to significantly impact the amenity of occupants or to be a likely disincentive to their use of communal areas at the ground floor. Furthermore, requiring a lift to upper levels would only add to the cost of a development required to be affordable.
The applicant also increased the separation between the two proposed buildings from 6m to 7m and agreed to provide semi-translucent privacy screens to the affected rooms in the front building. In my view whilst this is not ideal, I consider that it provides adequate amenity for occupants as it will still provide access for light and some outlook for occupants of the front building with no privacy mechanisms required for occupants of the rear building rooms opposite who will maintain full daylight access and an outlook to communal open space.
I also note the Council did not dispute the acceptability of the revised communal areas provided for use of residents which, in the amended application, comprises two communal rooms, one of which opens onto communal open space at the rear of the site, and two areas of communal open space including between the buildings. These will provide increased amenity for boarding house residents.
Finally, in terms of the neighbour objections raised that I have not otherwise dealt with that are relevant considerations, I note that the parking complies with the SEPP requirements and therefore cannot be a ground for refusal. There was also no evidence, including from the site view, that Croydon Street could not accommodate the additional traffic arising from the development which, in any event, would not likely be materially different to traffic arising from RFB redevelopment of the site.

Orders

The orders of the Court are: 1. Leave is granted for the applicant to rely on amended plans. 2. Development application 213/2017 for a boarding house at 116 Croydon Street, Lakemba, is approved subject to the conditions set out in Annexure "A". 3. The exhibits are returned other than Exhibits A, B, H and 2.

Jenny Smithson Commissioner of the Court Annexure A (169 KB, pdf)

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: 30 May 2018

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Cases Cited (5)