Kohler Bros Property Group Pty Ltd v Penrith City Council

The site and the locality

1. The site is comprised of two lots legally described as Lot 56 in DP 31423 and Lot 57 in DP 31423. It is located on the northern side of Second Avenue and has a combined site area of 1,114.6m², a combined frontage to Second Avenue of 30.48m and a depth of 36.575m. It has a slope towards the north-east of between 0.74m and 0.42m. The site currently contains a single storey dwelling on each lot.
2. A landscaped blister island sits in front of the site, and vehicular access to the western part of the site is obtained from a slip lane that runs along the frontage of the site and parallel with Second Avenue. An aerial view of the site is shown at Figure 1.
3. The site is located diagonally opposite a roundabout that provides entry to UWS via Dunstan Avenue to the south, and is located close to the intersection of Second Avenue and Morphett Street, which is 32m to the east. Kingswood Railway Station is located approximately 1.3km to the north-west, and the Kingswood campus of TAFE NSW is located at the end of Second Avenue around 350m from the site. The residential area in which the site is located, north of UWS, is predominantly characterised by single dwelling houses but it is in a state of transition, having been rezoned from low to medium density. A number of existing boarding houses are located at 51, 53 and 95 Second Avenue, and boarding houses have recently been approved at 91 Second Avenue and 6 Anthony Crescent, which is directly to the rear of the site. An aerial photo of the local area is shown at Figure 2.

The planning framework

1. The Site is zoned R3 Medium Density Residential under the Penrith Local Environmental Plan 2010 ("PLEP 2010"). Development for the purposes of a boarding house is permissible within the zone. Clause 2.3(2) of the PLEP 2010 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives for the R3 zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a concentration of housing with access to services and facilities. • To enhance the essential character and identity of established residential areas. • To ensure that a high level of residential amenity is achieved and maintained. • To ensure that development reflects the desired future character and dwelling densities of the area.
2. Clause 4.3 of the PLEP 2010 establishes a 8.5m building height development standard in accordance with the Height of Buildings Map, with which the proposed development complies.
3. Clause 7.4 of the PLEP 2010 also sets out the principles of sustainable development to which the Court, in exercising the functions of the consent authority, must have regard. They are as follows: 7.4 Sustainable development In deciding whether to grant development consent for development, the consent authority must have regard to the principles of sustainable development as they relate to the development based on a "whole of building" approach by considering each of the following - (a) conserving energy and reducing carbon dioxide emissions, (b) embodied energy in materials and building processes, (c) building design and orientation, (d) passive solar design and day lighting, (e) natural ventilation, (f) energy efficiency and conservation, (g) water conservation and water reuse, (h) waste minimisation and recycling, (i) reduction of vehicle dependence, (j) potential for adaptive reuse.
4. The State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH") also applies to the development. At cl 29 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides, at cl 29(2): 29 Standards that cannot be used to refuse consent … (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if: (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
5. It is common ground that the "must not refuse" criteria concerning building height, solar access, and private open space are all met, and that therefore development consent cannot be refused on any of those grounds. The Council also now concedes that the criteria with respect to the accommodation size are met. However, there is a dispute between the parties concerning the adequacy of the landscaping and whether it complies with cl 29(2)(b) and adequacy of the parking and whether it complies with cl 29(2)(e).
6. Clause 30 of the SEPP ARH sets out some standards for boarding houses that must be met, otherwise the consent authority "must not consent" to the development. These requirements concern the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager's room, and requirements for motorcycle and bicycle parking. The Council agrees that the boarding house complies with these standards.
7. Clause 30A of the SEPP ARH also prevents a consent authority from consenting to a development "unless it has taken into consideration whether the design of the development is compatible with the character of the local area."
8. The Penrith Development Control Plan 2014 ("PDCP 2014") sets out the relevant controls for residential development, including boarding houses. Part C1 sets out the overarching design principles, which include an objective (at Section 1.2 B(b)) as follows: "b) To ensure that development is designed on a 'whole of building' approach by: i) responding to the site's context, the desired scale and character of an area, and minimising impacts on key views, scenic values and where applicable, rural character; … iii) minimising likely bulk and scale impacts of a building;"
9. At Section 1.2.2 of Part C1, the design principles for built form include the following: "b) Buildings should be designed on passive solar design principles which: … ii) Reduce overheating in summer and promote solar gain in winter; and iii) Ensure there is adequate cross flow of air by utilising natural ventilation, resulting in a reduction in the use of mechanical ventilation and/or air-conditioning systems."
10. With respect to height, bulk and scale, Section 1.2.3 of Part C1 includes the following: "a) Context: An applicant must demonstrate how all proposed buildings are consistent with the height, bulk and scale of adjacent buildings and buildings of a similar type and use. b) Character: An applicant must demonstrate how any building's height, bulk and scale will avoid or minimise negative impacts on an area's landscape, scenic or rural character (where relevant) taking into account the topography of the area, the surrounding landscape and views to and from the site. … e) Setbacks/Separations: Buildings should be sufficiently set back from property boundaries and other buildings to: i) Maintain consistency with the street context and streetscape character, especially street/front setbacks; ii) Maximise visual and acoustic privacy, especially for sensitive land uses; iii) Maximise deep root planting areas that will support landscape and significant tree plantings integrated with the built form, enhancing the streetscape character and reducing a building's visual impact and scale; iv) Maximise permeable surface areas for stormwater management; and v) Minimise overshadowing"
11. Part C6 concerns landscape design at Section B includes the following objectives: "b) To ensure landscape design takes into account the site's context, landscape and visual character, existing landscape features and amenity, both at the local and regional scale; … e) To ensure landscape design adequately complements the proposed built form and minimises the impacts of scale, mass and bulk of the development in its context;"
12. Section 6.1.4 of Part C6 concerns site amenity and at (1) includes contextual design, which states at (a) that: "Landscape designs should seek to screen development, particularly from the sides and rear of an allotment."
13. Part D5 Section 5.11 of the PDCP 2014 concerns boarding houses, and commenced on 21 December 2018, after the development application was lodged with the Council. The background to the Section 5.11 includes a statement that "Boarding house developments should be compatible with local character and provide suitable amenity for tenants and the community."
14. The first objective of Section 5.11, found at B, is to "ensure that boarding houses fit the local character or desired future character of the area".
15. At C, the controls include the following: "1) Local Character a) Boarding house development applications shall be accompanied by detailed site analyses to assist with the determination of local character. b) A neighbourhood analysis should be completed to identify the desired future character of the neighbourhood. It is recommended that community consultation be undertaken as part of the analysis to determine aspirations for the future character … 2) Built form, Scale and Appearance … c) Boarding houses shall be designed to have a sympathetic relationship with adjoining development. … f) A boarding house proposal of a scale similar to a multi dwelling housing development should comply with the controls and objectives for multi dwelling housing within this DCP, where they are not in conflict with the requirements of the SEPP and the objectives of the zone. … 3) Tenant Amenity, Safety and Privacy Boarding houses are to maintain a high level of resident amenity, safety and privacy by ensuring: … c) cross ventilation is achievable such that reliance on air-conditioning is minimised; …"
16. It is agreed that, as a result of the terms of C(2)(f) of Section 5.11, the controls and objectives for multi-dwelling housing apply to the proposed development. The objectives and controls for multi-dwelling housing are contained in Section 2.4 of Part D. At Section 2.4.1, the PDCP 2014 sets out how the residential character of any neighbourhood is determined. It then sets out the following objectives and controls at Section 2.4.2: "A. Objectives a) New multi dwelling housing development should adopt key features of established suburban design. b) Dwellings, their entrances and private courtyards look towards the street, or to the rear boundary. B. Controls 1) New multi dwelling housing development should incorporate the traditional configuration of the cottages and cottage gardens that define the character of Penrith's established neighbourhoods, because: a) Traditional development demonstrates social and urban design benefits, particularly the orientation of dwellings and their private open spaces towards the street rather than overlooking neighbouring dwellings and gardens; b) Patterns of buildings and private gardens in established neighbourhoods have visual and symbolic richness that are valued by their community; c) the use of traditional features softens the popular perception that redevelopment is changing the traditional character of Penrith City. 2) Within the relevant zones, established development is detached buildings or semidetached pairs which are: a) separated from one another by landscaped courtyards; b) stepped floor plans and projecting verandahs; c) capped by a variety of pitched roofs. 3) Within the relevant zones, established development provides a "green corridor" of trees and shrubs along the rear boundary: a) conserving remnant vegetation; and b) providing new shelter and habitat; and c) contributing to streetscape. 4) Within the relevant zones, established development provides a front garden setback which may be filled by verandahs and private garden-courts (as shown in Figure D2.11): a) encourages active use by residents; b) provides for attractive front gardens. 5) Within the relevant zones, established development provides parking areas which are concealed from the street and consequently avoids the appearance of "garage architecture"."
17. At Section 2.4.4 there are some controls described as Urban Form controls. The Council says the following urban form controls are not complied with: "3) Avoid "gun-barrel" style developments with long rows of attached dwellings, long straight driveways and rows of uniform width garden courtyards: a) break buildings into separate blocks, each one not longer than 20m; 4) "Articulate" building forms by design measures that cast deep shadows: a) separate neighbouring buildings by irregularly-shaped garden courts that are at least 3m wide; b) external walls should not be longer than 5m between distinct corners; c) the upper storey surrounded by a larger ground floor plan that incorporates projecting rooms, shady verandahs and carports; …"
18. At Section 2.4.5, at B, there are controls for the front and rear setbacks. These are as follows: "1) Determine the maximum development footprint for your site: a) The minimum rear setback for a single storey building (or any single storey component of a building) is 4m. b) The minimum rear setback for a two storey building (or any two storey component of a building) is 6m. c) adopt a front setback that matches the neighbourhood character. 2) Within the rear boundary setback: a) there shall be no building encroachments either above or below ground (eaves excepted); b) maximise the amount of undisturbed soil, encouraging rapid growth of healthy trees and shrubs; c) where there are physical encumbrances such as open drains, increase the setback accordingly. 3) Determine an appropriate front setback: a) either average the setbacks of the immediate neighbours; or b) a 5.5m minimum whichever is the greater dimension."
19. At Section 2.4.6 there is a building envelope control requiring the building to be within a height plane over the site at 45 degrees from 6.5m above natural ground level at the side boundaries of the site, with which the proposed development complies.
20. Section 2.4.6 also contains a side setback control requiring setbacks from side boundaries to be varied to articulate walls to side boundaries and requires a setback as follows (at B(7)): "a) a minimum setback of 2m, but only b) along not more than 50% of any boundary."
21. At Section 2.4.8, concerning the landscaping for multi-dwelling housing, the landscaped area is required to be 40% of the site area. However, this cannot form a basis for refusal if I am satisfied that cl 29(2)(b) of the SEPP ARH is met.

Evidence

1. In lieu of the giving of evidence on-site by local residents, a written submission from a local resident who objects to the proposed development was tendered in evidence by the Council. She objects to the proposal on the basis that it will reduce the green space in the area, it is not consistent with the principles of sustainable development, there is a lack of street parking available in the area, and there is already sufficient student accommodation.
2. Expert opinion evidence on the planning issues was given in a joint report and in court by Ms Kathryn Saunders, a planner employed by the Council, and Mr Andrew Robinson, a consultant town planner engaged by Kohler.
3. On the landscaping issues, expert opinion evidence was given in a joint report and in court by Mr Matthew Taylor, a landscape architect engaged by the Council, and Mr Craig Burton, a landscape architect engaged by Kohler with qualifications in horticulture.
4. In relation to the traffic and parking contentions, expert opinion evidence was given in a joint report and in court by Mr Daniel Davidson, employed by the Council in the position of Senior Traffic Engineer (although not holding an engineering qualification) and Mr Ross Nettle, a traffic consultant engaged by Kohler.
5. Contentions with respect to water quality and the stormwater plans were the subject of a joint report by Mr Tim Gowing, the Senior Water Management Officer employed by the Council, and Mr Ben Carruthers, an engineer engaged by Kohler. As a result of their joint report, those contentions were resolved.

Parking numbers

1. As set out above, cl 29(2) of the SEPP ARH prevents the Court, in exercising the functions of the consent authority, from refusing the development application on the basis of parking if "at least 0.5 parking spaces are provided for each boarding room", and "not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site."
2. As the proposed development has a total of 27 boarding rooms plus a manager's room, the Council's position is that this means that 14 spaces are required for the boarding rooms (13.5 rounded up to 14) and an additional space is required for the manager's room, bringing the total requirement to 15 spaces. As there are only 14 spaces provided, the Council submits that there is a shortfall of one space and the proposed development does not comply with the SEPP ARH "parking requirement" for 15.
3. I do not accept the Council's position. Firstly, the rate set out at cl 29(2)(e) of the SEPP ARH is not a "parking requirement" as contended by the Council. That is, it is not a standard against which parking can be assessed as being adequate or inadequate. Instead, it is a "must not refuse" standard that, if met, cannot be used as a basis for refusal on the basis of the adequacy of parking. If not met, then the adequacy of parking can be raised as a basis for refusal and a merit assessment of the adequacy of the parking provided can be undertaken.
4. Secondly, the Council misreads and misapplies the calculation of the criteria described at cl 29(2)(e). The first way in which the criteria is misread or misapplied is not including the manager's room as a boarding room. A boarding room is defined in cl 4 of the SEPP ARH as "a room or suite of rooms within a boarding house occupied or so constructed or adapted as to be capable of being occupied by one or more lodgers", and the development standard requiring a manager's room states at cl 30(1)(e) requires that "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". In the proposed development, this standard is met by the provision of a boarding room for the manager. The total number of rooms is therefore 28, and 14 spaces are provided in compliance with cl 29(2)(e)(iia). The second way in which the criteria is misread or misapplied is failing to read "not more" in cl 29(2)(e)(iii) accordance with its plain reading. The words clearly impose a limit of 1 for each "person employed in connection with the development and who is resident on the site", and do not impose any minimum requirement whatsoever. The provision of 0.5 space for the manager's room, in accordance with (iia), meets both (iia) and (iii).
5. As such, I am satisfied that the "must not refuse" criteria are met and that the Court cannot refuse the proposed development on the basis of parking. The provision of 14 spaces meets both cl 29(2)(e)(iia) by providing 0.5 space per boarding room, and cl 29(2)(e)(iii) by providing 0.5 space for the manager's room, which is "not more than one parking space" for the person employed and resident on the site.
6. Even if I am wrong in interpreting the words of the clause in this manner, if the "must not refuse" criteria are not met it allows the Council to raise adequacy of car parking as a contention. However, there is no parking standard in the PDCP 2014 that applies to the proposed development, nor is there evidence in support of the Council's position that there is insufficient parking. The evidence of Mr Davidson of complaints about parking in the area and about the lack of on-street parking is not sufficient to establish what the parking demand will be for future residents of the boarding house, as it does not provide any evidence of actual rates of vehicle ownership of students in student accommodation or boarding house residents. Instead, I accept the evidence of Mr Nettle that the proposed boarding house is likely to be used for student accommodation due to its proximity to the UWS and TAFE campuses, and I accept his evidence that, taken from surveys of other student accommodation in the Randwick local government area, car usage amongst students was one vehicle for 6-7 students. Further, I am satisfied that, given the proximity to UWS and TAFE, and the short distance to the train station, it is appropriate for the proposal to provide 0.5 parking spaces per room. As a result, on a merit assessment of the parking provided at the proposed development, I am persuaded that the parking is adequate.

Landscaping

1. As set out above, cl 29 of the SEPP ARH precludes 'landscaped area' from being a ground of refusal if "the landscape treatment of the front setback area is compatible with the streetscape in which the building is located". This means that, if I am satisfied that this is met, a merit assessment of the landscaped area against the controls with respect to landscaped area in the PDCP 2014 is not required.
2. In order to assess whether the landscape treatment is compatible with the streetscape, the streetscape landscape treatment needs to be understood. The evidence of Mr Taylor is that: "The existing landscape to the area is a cultural landscape of mixed native and exotic plantings. Remnant Cumberland Plain Woodland species are notable along Werrington Creek to the east of the site and Chapman Gardens to the west of the site. There [are] a number of canopy trees to the immediate area, (the front garden of No 77 Second Avenue for example) and to the rear yards of the houses (nos 10 and 12 Anthony Crescent for example). There is a typical suburban vegetated character to the surrounding streets of Anthony and Cosgrove Crescents where a vegetated form of trees and shrubs set in the existing built form provides a suitable residential character… It was noted that trees of 10-15 metres in height were located within the surroundings of the existing dwellings that provide an appropriate scale and mass to the locality, allowing for shade in summer and sun access in winter."
3. Mr Taylor and Mr Burton agree that there is minimal landscaping to the side setbacks of many of the existing houses along Second Avenue, where a 900mm distance is typical between the boundary and the dwelling. Ms Saunders considers that the character is defined by deep set, landscaped front courtyards with remnant canopy tree planting. Mr Burton's evidence is that there is generally more impervious pavement than planted area within the front setbacks in the immediate streetscape context.
4. The Council's position is that the proposed landscaping of the front setback is not compatible with the streetscape in Second Avenue and surrounds. It relies on the evidence of Ms Saunders that the proposal to locate raingardens with a series of 300-450sqm pits and a retaining wall within the front setback is incompatible with the streetscape, and that if a substation and hydrant booster is required, these items will further "detract from the passive presence of the streetscape in the locality". The Council also relies on the evidence of Mr Taylor, who considers that six tall Eucalypt trees are not sustainable in the limited area of the front yard, and that the absence of effective mid-block landscaping (along the side setback) with an appropriately scaled canopy tree does not fulfil "the necessary green amenity". With respect to the canopy trees proposed for the front setback, Mr Taylor's evidence is that they should be reduced to two trees so that they are in a broader landscaped area. Specifically, he opines that a "more appropriate location for these tree species are in the broader landscape areas as observed in the grounds of the University opposite to the subject site."
5. Mr Burton and Mr Robinson instead opine that the proposed landscaping incorporates a variety of shade trees, shrubs, garden beds and turf. Mr Robinson considers that this is what is typically seen in a medium density residential setting, and is compatible with the landscape character observed in the front setback of nearby properties. Whilst Mr Burton considers that six canopy trees can be accommodated in the front setback, the parties agree that there can be a condition imposed to reduce the number of canopy trees to two.

The landscape treatment is compatible with the streetscape

1. Having regard to the evidence of the experts, and to the pictures and video of houses in the streetscape, I consider that the front setbacks of the dwellings vary in their landscaping. I accept the evidence of Mr Burton that in the immediate context, many of the front setbacks consist of areas used for parking. Most of the landscaped areas within the front setbacks of the dwellings primarily comprise lawn, with sparsely planted shrubs, trees or hedges, such that there are direct views to the built form. It is apparent, and I accept, that the existing landscape to the area is a cultural landscape of mixed native and exotic plantings, with remnant canopy tree planting across the front setbacks of dwellings on Second Avenue, as well as within the grounds of UWS on the south of Second Avenue.
2. In this streetscape context, I accept the evidence of Mr Robinson and Mr Burton that the landscape treatment of the front setback area is compatible with the streetscape. It is well established that "compatibility" does not equate to sameness: see Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [22]. The proposed landscaping is more dense than other front setbacks within the streetscape, incorporating shade trees, shrubs, hedges and groundcovers. By doing so, it responds to the existing shrubs and hedges in the streetscape. Further, the proposal (subject to the conditions as proposed by the parties) includes two canopy trees, which, once mature, will be compatible with the remnant mature canopy trees located in the surrounding neighbourhood.
3. I do not accept the opinion of Ms Saunders that the existence of a raingarden, or the potential requirement for a substation or hydrant, is a sufficient basis on which to conclude that the landscaping in the front setback is not compatible with the streetscape. The infrastructure for the rain garden is located below ground level, and above that infrastructure is to be fully vegetated with appropriate species (other than the small areas of the surcharge and overflow pits).
4. Similarly, the evidence of Mr Taylor concerning the inadequacy of the mid-block planting is not sufficient to persuade me that the landscaping of the front setback is not compatible with the streetscape, given that such planting is outside the front setback and the planting along the side setbacks of other dwellings is agreed to be minimal.
5. In circumstances where I am satisfied that the landscape treatment of the front setback area is compatible with the streetscape in which the proposed boarding house is located, cl 29 of the SEPP ARH precludes refusal of the proposed development on the basis of 'landscaped area'. The quality of the landscaping is nonetheless raised within the contentions, and remains to be considered separately.

Local character

1. As set out above, cl 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area." An appreciation of the character of the local area includes understanding both its existing character and its desired future character. In an area that the parties agree is undergoing a state of transition, there is largely agreement that more weight should be placed on the future desired character than its existing character.
2. The Council's position is that the proposed development is not compatible with the character of the local area. It makes a number of submissions in support of this position.
3. Firstly, the Council submits that Kohler has failed to demonstrate what the desired future character of the local area is. The Council submits that this ought to have been done by the site analysis required by Section 5.11 of the PDCP 2014. The Council observes that this includes community consultation so as to ascertain the desires of local residents for the future character of this particular area, which enables satisfaction to be achieved that the boarding house fits the desired future local character.
4. Secondly, the Council submits that the controls in the PDCP 2014 set the desired future character, which is designed to preserve and enhance the character of the local area and to ensure that new boarding house development is compatible with that character. It submits that the PDCP 2014 identifies the specific essential components of that character, which are required to be replicated in new development. The Council submits that the proposed development departs from fundamental controls in the PDCP 2014 including the design of the built form and the front, rear and side setbacks. In support of this submission, the Council relies on the evidence of Ms Saunders, who opines that the proposed development departs from the controls that require new development to "show characteristics of traditional suburban development: dwellings oriented to face the street, building forms stepped or articulated, and integrated with the shape of surrounding garden areas". She also opines that the development departs from the controls that provide detail on how the urban form should respond to those characteristics, including the requirement for external walls to be "no longer than 5m between distinct corners" and for articulating forms that "cast deep shadows", as well as the requirement to break buildings into separate blocks. Specifically, Ms Saunders opines that the design does not have a highly articulated built form, and instead appears like a square that is almost as wide as it is long. Further, she points out that contrary to the controls, the second storey components do not step in and instead result in sheer brick 2-storey components. She opines that the design of the built form is not articulated in a manner that has regard to the key elements of character that the PDCP 2014 seeks to continue as the residential environment increases in density to reflect its R3 zoning. In failing to do so, Ms Saunders considers that the proposed development does not complement the qualities of the existing residential development that defines the character of the area.
5. Thirdly, the Council submits that Kohler has taken the future character from the design and setbacks of other boarding house developments in the area, which is not appropriate in circumstances where they were approved prior to the adoption of the controls in Section 5.11 of the PDCP 2014.
6. Kohler's position is instead that the proposed development is compatible with the desired future character of the area, which is appropriate in circumstances where the area is undergoing transition. Kohler makes a number of submissions in support of its position.
7. Firstly, Kohler submits that the contemporary design and scale of the boarding house is comparable to other recent medium density developments in the area. Kohler relies on the evidence of Mr Robinson, who opines that a contemporary architectural style is suitable in the context of an emerging medium density character, and that it is comparable to and compatible with recent development at numbers 51, 53 and 95 Second Avenue and 18-22 Anthony Crescent, as well as another approved boarding house at 91 Second Avenue.
8. Secondly, Kohler submits that the proposed development generally complies with the built form controls which inform the desired future character of the area. Specifically, Kohler points out that the proposal complies with the height limit in the PLEP 2010 and the building envelope control in the PDCP 2014, and that it is generally compliant with the rear and side setbacks. Kohler submits that it provides a better landscaped outcome than its neighbours because it does not use the front setback area for parking. Mr Robinson's evidence is that the building presents an acceptable façade to the street frontage, incorporates a high degree of articulation and a combination of materials and finishes. He opines that the central pedestrian entry point provides a break in the built form at the central position, giving the appearance of two buildings, which would be commensurate with the built form that might result from two 2-storey dwellings on these sites.

The design of the proposed development is not compatible

1. The focus of cl 30A is on the design of the proposed development, and whether that design is compatible with the character of the local area. Having regard to the evidence before the Court and the architectural plans, I am not persuaded that the design is compatible with the existing or desired future character of the local area.
2. I do not accept the Council's submission that the formal site analysis prescribed by Section 5.11 of the PDCP 2014 (including consultation of residents) is required for the Court to undertake the consideration required by cl 30A. Whilst that site analysis might be required to accompany a development application lodged with the Council, the site planning that is envisaged by the PDCP 2014 through that analysis is superseded by the expert town planning opinion evidence that forms part of the hearing in these appeal proceedings.
3. The local area includes the properties on the northern and southern sides of Second Avenue, and extends north to properties on Anthony Crescent. As I outlined above, the character of the local area includes both its existing character and its desired future character. The existing established developments, including the single dwellings, the recently constructed boarding houses, the seniors living development, and the university grounds, all form part of the existing character of the local area.
4. Consistent with the reasoning of Roseth SC in Project Venture Developments v Pittwater Council, in circumstances where the planning controls envisage a change of character, "compatibility with the future character is more appropriate than with the existing" (at [23]). Given that the parties and the experts agree that the area is undergoing a transition toward higher density development to reflect the R3 zoning, I accept that the future character of the R3 zone must be considered. The desired future character of the R3 zone is expressed through the controls in the PDCP 2014.
5. The controls in the PDCP 2014 envisage a future character where the higher density developments, including boarding houses and multi-dwelling housing, reflect the existing desirable aspects of the low density residential zone. I accept the evidence of Ms Saunders in this regard. This is a specific emphasis in the controls, which is demonstrated by reference to the following controls:

• Control (2)(c) of Section 5.11, which requires that "boarding houses shall be designed to have a sympathetic relationship with adjoining development".
• Control (2)(f) of Section 5.11, which requires that "a boarding house of a scale similar to multi dwelling housing development should comply with the controls and objectives for multi-dwelling housing".
• The controls in Section 2.4.2, which have the objective that "New multi dwelling housing should adopt key features of established suburban design".
• The setback controls in Section 2.4.5, which have the objective that "Setbacks are to reflect the character of established garden suburbs".
• The setback and separation controls referred to in Section 1.2.3 of Part C1, which at (e)(i) requires that "Buildings should be sufficiently set back from property boundaries and other buildings to… maintain consistency with the street context and streetscape character…".

1. Accordingly, the description by Mr Robinson of the proposed development as a modern architectural design is not a sufficient basis upon which to say that it complies with the desired future character. Rather, the design of the proposed development must be considered in light of the existing character as well as the desired future character as informed by the PDCP 2014.
2. Nor is it sufficient to compare the design of the proposed development only with the constructed and approved boarding houses within the locality, which were approved prior to the introduction of the controls in Section 5.11 of the PDCP 2014. Although those boarding houses form part of the existing character of the locality, the predominant built form at present is single dwellings, and the design of the proposed development must be considered against the character of the local area as a whole, both in its current state of transition and in the desired future character as expressed through the PDCP 2014.
3. Having regard to all of the above factors, there are three reasons why I consider that the design of the proposed development is not compatible with the character of the local area.
4. Firstly, despite the horizontal articulation along the side boundaries and the break in the building's façade at the central entrance, I consider that the lack of an increased setback at the second storey is inconsistent with the desired future character as expressed in control (4)(c) of Section 2.4.4 of the Urban Form Controls. Control (4)(c) requires that building forms be articulated by design measures that cast deep shadows with "the upper storey surrounded by a larger ground floor plan". The design of the built form instead, as conceded by Mr Robinson, has a larger first floor plan than the ground floor plan. As a result, the design includes two sheer walls on each side boundary that extend up both storeys, and at the front façade the front balconies project forward beyond the alignment of the façade at the ground level. Each of these elements of the design are contrary to the control that requires a smaller upper storey, and are not compatible with the corresponding objective for built forms to show characteristics of traditional suburban development with stepped or articulated building forms.
5. Secondly, the design of the proposed development does not have adequate steps in, or modulation of, the built form. This is contrary to both the existing character of the local area, and the desired future character for articulation with external walls no longer than "5m between distinct corners", as expressed in (4)(b) of Section 2.4.4 of the Urban Form Controls. The existing character of the northern side of Second Avenue contains predominantly dwelling houses with large steps in the built form, containing vertical and/or horizontal articulation and clear stepping in the depth of the front setback at the ground floor. This form is continued to the boarding houses located at 51 and 53 Second Avenue, with both horizontal and vertical articulation of their front façades and short wall lengths between changes in depth. Although the design of the proposed development incorporates horizontal articulation in the front façade and a break in the built form where the pedestrian entrance is located, this does not achieve the same effect as that which is achieved by stepping the built form and by restricting wall length to a maximum of 5m between distinct corners. I accept the evidence of Ms Saunders that the design of the development is almost as wide as it is long, with only small penetrations with a roof above, and is not articulated through stepping in a form that is reflected in (4)(b) of Section 2.4.4 of the Urban Form Controls or in a manner that reflects the existing development along Second Avenue.

Setbacks

1. The Council also contends that the setbacks for the proposed development are inadequate. Whilst the Council contended that the inadequate setbacks informed the consideration of the compatibility of the design of the proposed development with the character of the local area, the Council also raised the adequacy of the setbacks as a separate and independent contention.
2. The rear setback control, at Part D Section 2.4.5(1) of the PDCP 2014 (at [25] above), requires a 4m setback at the ground level, and a 6m setback at the first floor. The proposed development complies with the latter. However, at the ground level compliance is not achieved, due only to the encroachment of the set of stairs from the ground level of the dwelling (which projects above the natural ground level) to the ground level of the rear yard. Other than those concrete stairs, the proposed development would comply with the rear setback control.
3. The side setback control requires, at Part D Section 2.4.6(7)(a) and (b) of the PDCP 2014 (at [27] above), that the setback be varied to articulate walls to side boundaries, with a minimum setback of 2m along not more than 50% of any boundary. The proposed development complies with this for the walls of the ground level and the first floor. However, the basement wall and ground floor slab, which protrude above the natural ground level (up to 945mm) are 2m from the side boundary for the entire depth of the building, which is greater than 50% of the side boundary length. This is true for both the west and east side boundaries.
4. The front setback control requires, at Part D Section 2.4.5(3)(a) of the PDCP 2014 (at [25] above), that the front setback is to be the average of "the setbacks of the immediate neighbours" or 5.5m, whichever is the greater. The setbacks of the immediate neighbours are 11.5m and 9.18m, which means that the setback requirement for the proposed development is 10.34m. The proposal does not comply, and instead has a setback of 7.68m.
5. The Council considers that the inadequate setbacks exacerbate the bulk and scale of the development, and that the reduced front setback limits landscaping opportunities as well as exacerbating the bulk and scale of the 2-storey façade. The evidence of Ms Saunders is that the front setback control requirement is not unreasonable in the area and applies to all residential forms of development in the zone. She opines that it is in place to maintain a consistent deep setback for the provision of increased landscaping, proportionate to the uplift in built form densities anticipated.
6. Kohler's position is, instead, that it is unreasonable to require new development to adopt the average of front setbacks of dwelling houses in an area that is undergoing transition to medium density development. It relies on the evidence of Mr Robinson, who opines that a front setback of 7.68m is adequate and comparable to the boarding houses that have been constructed and approved in the immediate locality. Kohler submits that the Court should accept Mr Robinson's opinion in circumstances where it is consistent with the view expressed by Ms Saunders in an email of 4 December 2018 in which she says that the "front setback is generally acceptable". Further, Kohler says that flexibility should be afforded in circumstances where the site benefits from the existence of the landscaped strip of vegetation on the blister in front of the site. With respect to the rear and side setbacks, Kohler submits that the minor encroachment into the rear setback by the stairs and the non-compliance of the basement slab with the side setback control, do not have any impact on the perception of the bulk and scale of the development as perceived from the side and rear boundaries.

The front setback is inadequate

1. In considering the adequacy of the setbacks in light of the standards established by the provisions of the PDCP 2014, s 4.15(3A)(b) of the EPA Act requires the Court, in exercising the functions of the consent authority, to "be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development."
2. In doing so, I accept the position of Kohler that the encroachment into the rear setback by the stairs, and failure of the basement and ground floor slab to comply with the requirement that the side setback of 2m be maintained for no more 50% of the boundary length, do not have any impact on the perception of bulk and scale of the development. They will not be perceived from adjoining properties or from the streetscape, and the minor breach will not have any unacceptable adverse impact. Nor will the minor breach have an unacceptable impact on the provision of landscaping.
3. However, with respect to the front setback, the evidence before the Court does not establish that flexibility is warranted. The objective of the setback controls is expressed at both Section 1.2.3 of Part C1, to maintain "consistency with the street context and streetscape character" and at Section 2.4.5 to "reflect the character of established garden suburbs, and provide for development of flora and fauna corridors."
4. I do not accept that those objectives will be achieved by a setback of 7.68m, which is 2.64m less than that required by the control. Instead, the proposed development will sit forward of the facades of both of the two adjoining dwellings, 1.5m forward of one dwelling and 3.82m forward of the other. This has two consequences. Firstly, it will exacerbate the bulk and scale of the 2- storey front façade. I accept the position of the Council in that regard. Secondly, it compromises the objective of maintaining a setback that reflects the character of established garden suburbs. This will, in turn, facilitate a smaller compliant average setback for the future development of adjoining sites, which is antipathetic to the objectives of the front setback control.
5. The existence of the landscaped blister in front of the site could justify a shorter front setback, but not to the extent sought in the proposed development, where the development is proposed to sit forward of the two adjacent dwellings. I also consider that little weight can be placed on Ms Saunders' email of 4 December 2018, in which she expressed that the front setback is generally acceptable, as it does not contain any persuasive substance as to the basis of her position.
6. Additionally, there has been no analysis presented in evidence as to how the setback of 7.68m is comparable to the front setbacks of other development along Second Avenue. Instead, the analysis is confined to a comparison with other established or approved boarding houses in the locality, of which there are 5. The objectives of the control concern maintaining consistency with the streetscape context and reflecting the character of the established garden suburbs, and the same control applies across all forms of residential development in the zone. As such, a comparison with the front setbacks of only one form of development that exists in only 5 other locations is not sufficient to establish that the proposed setback is appropriate for the subject site and maintains consistency with the street context.
7. Kohler bears the persuasive burden of establishing that the proposed front setback is appropriate, and that the exercise of flexibility required by s 4.15(3A) is warranted. Given that I have not been so persuaded, the proposed development ought also to be refused on the basis of the non-compliant front setback.

Outcome of the appeal

1. I have above considered that the design of the proposed development is not compatible with the character of the local area, and that Kohler has not sufficiently demonstrated that the front setback is adequate. In light of these findings, the development application should be refused. There is little utility in considering the remaining contentions raised by the Council.
2. The Court orders that: 1. The appeal is refused. 2. The development application (DA 18/848) for the demolition of existing structures and the construction of a boarding house at 71-73 Second Avenue, Kingswood, is refused. 3. The exhibits are returned, except for Exhibits B, D, 2 and 4.

Amendments 14 August 2020 - Correction to the cover sheet. 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: 14 August 2020