Margetic v Blue Mountains City Council [2022] NSWLEC 1618 | Case summary

Land and Environment Court (NSW)|2022-09-01

Judgment

COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA/X/78/2021) by Blue Mountains City Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application has been amended since the filing of the proceedings and now seeks development consent for the construction of a two-storey boarding house containing a common room and outdoor space, six boarding rooms and associated site works. The development is proposed at 16 Springwood Avenue, Springwood (Lot 8 DP 655479).
At the commencement of the hearing the Applicant sought to further amend their development application in response to the evidence in the joint reports. The Respondent declined to provide consent to the amendment of the development application. Accordingly, the Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Blue Mountains City Council as the relevant consent authority agrees, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant amending Development Application. On the first day of the hearing, I made orders that the Respondent upload the amended development application on the NSW Planning Portal. The amendments include updated architectural plans, landscape plans, stormwater engineering plans and an updated BASIX certificate.
As amended the development application seeks consent for: Construction of a 2 storey boarding house containing 6 boarding rooms accommodating a total of 12 occupants, with a common room and outdoor space, with amendments to the basement and front setback of the approved manor house on the site to accommodate an additional 2 car parking spaces and an accessible path of travel to the boarding house. (Exhibit 9)

Issues

Despite the amendments to the development application and the provision of additional information the Respondent maintains the development application warrants refusal. They raise the following contentions: 1. The proposed development does not exhibit design excellence as required by cl 6.19 of the Blue Mountains Local Environmental Plan 2015 (LEP 2015), the satisfaction of which is a precondition to consent. 2. That the proposed development is inconsistent and incompatible with the existing and desired future character of the local area. 3. That the development application should be refused because it has an unacceptable impact on the visual amenity of the streetscape. 4. The development application should be refused because the following non compliances result in a built form and scale of development which is not appropriate for the site and exacerbates the visual impact of the development:

Building separation
Building length
Amount of pervious/ landscaped area 1. The proposed development will adversely impact on the amenity of future residents, in particular in managing thermal loads. Further, the proposed development will impact the visual and acoustic privacy of adjoining properties.

In closing Mr Seton submits that the key matters that remain in contention are firstly, whether the development is compatible with the character of the local area; and secondly, whether development achieves design excellence as a precondition to the grant of consent.

The Site

The site comprises one allotment of land described as 16 Springwood Avenue, Springwood (Lot 8 DP 655479). The site area is 670.8m² and has a frontage to Springwood Avenue of 16.635m. The site falls between 4.5-5m from north west to the south east and currently contains a single storey weatherboard dwelling and a detached garage fronting Springwood Avenue. The site is located in proximity to the town centre and station at Springwood.
On 17 November 2020 a Complying Development Certificate was issued for the demolition of the existing structure on the site and the construction of a four-unit manor house containing a basement parking level with four dedicated car parking spaces. As shown in the following extract of the plans, the approved manor house is located on the part of the site immediately proximate to Springwood Avenue. The development, the subject of these proceedings, is the proposed boarding house located at the rear of the approved manor house along with some retaining and pathway works in the front setback to Springwood Avenue.

Public Submissions

The development application was notified by the Respondent from 17 February to 17 March 2021 in compliance with the Blue Mountains Development Control Plan 2015 (DCP 2015). A total of 32 submissions in objection were received. The issues raised in the submissions can be summarised as:

That the proposed development was inconsistent with the character of the street.
That the development will create an adverse impact on the surrounding local road network.
that the adjoining properties will be impacted by overlooking and overshadowing from the proposed development.
The design of the development does not comply with the maximum cut and fill, site coverage, setback, landscape site area and minimum separation between building controls in DCP 2015.
The development does not comply with the floor space ratio control in LEP 2015.
The use of the boarding house is uncertain, and the development application is not accompanied by a plan of management (POM).
there is no community need for a boarding house.
the proposed development will create accessibility issues for users of the boarding house.
the development provides inadequate parking, which will result in residents parking on Springwood Avenue.
That during construction, and in particular excavation for basement carparking, there is potential for damage to the adjoining properties.
that if the application is approved there is potential for the whole of the site to be converted to boarding house use.

At the commencement of the hearing a member of the public addressed the Court detailing their concerns with the development application. Those submissions reiterated the preceding concerns but emphasised the potential for the development to impact local traffic safety, parking availability and have adverse impacts on adjoining properties.
In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.

Expert Evidence

The Court was assisted by town planning experts, Mr David Askew for the Applicant and Mr Paul Anzellotti for the Respondent. The joint report of these experts was tendered as Exhibit 4 in the proceedings. In addition to their joint report the experts were called for cross examination.
The remaining experts in the proceedings noted in their respective joint reports the resolution of their issues on the basis of the amended plans or agreed conditions. As a result, they were excused from cross examination.

Preconditions to the grant of consent

Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows, commencing with design excellence which is an issue contended by the Respondent in the proceedings.

Does the proposed development exhibit design excellence?

Clause 6.19 of LEP 2015 applies to the subject site which is located within the Built Character Map and involves the erection of a new building. Clause 6.19 of LEP 2015 sets two jurisdictional preconditions, one in subclause (3) and the other in subclause (4).
Clause 6.19(3) provides: (3) Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence.
Clause 6.19(4) specifies matters that the consent authority must consider in deciding whether the proposed development exhibits design excellence: (4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) whether the development detrimentally impacts on any land protected by solar access controls established in the Blue Mountains DCP, (e) the requirements of the Blue Mountains DCP, (f) how the development addresses the following matters - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access, circulation and requirements, (x) the impact on, and any proposed improvements to, the public domain.
The Respondent's contentions argue that the proposed development is inconsistent with the achievement of design excellence having regard to the matters listed at (4)(e) and 4(f)(iv) of cl 6.19 Design Excellence. Namely, the provisions of DCP 2015 and the relationship of the proposed development with the manor house and adjoining developments respectively.
The consent authority is required to consider each issue at sub cl (4) in deciding whether a development exhibits design excellence: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 at [70]. The matters for consideration at cl. 6.19(4) of LEP 2015 are cumulative matters which, when considered together, determine whether the proposed development, as a whole, exhibits design excellence.
The matters for consideration under cl 6.19(4) of LEP 2015 were the subject of expert evidence and the production of a joint expert report. I note the experts address the components of the clause contended by the Respondent, rather than all of the matters particularised under cl 6.19 of LEP 2015. I have summarised their evidence and where relevant extracts of the development application.

Is a high standard of architectural design, materials and detailing appropriate to the building type and location achieved?

The issue at cl 6.19(4)(a) of LEP 2015 requires consideration of three components: firstly, the architectural design, secondly the materials proposed for the development and finally the detailing proposed. That consideration needs to be made in the context of the building type (a boarding house) and its location.
The proposed materials and finishes, along with the architectural design, is documented in the architectural plans including a schedule of materials and finishes. (Exhibit C)
Relevant to whether the design of the proposed development represents a high standard The Respondent raises the following issues:

That the scale and massing of the development does not allow for the proposed communal open space to comply with the 'do not refuse' requirement of State Environmental Planning Policy Affordable Rental Housing 2009 (SEPP ARH) for a minimum of 20m², with a minimum width of 3m: cl 29(d) of SEPP ARH. The Respondent argues that the proposed development contains only an area of 17.5m² that achieves the minimum width of 3m. In the alternative the Applicant argues the development is compliant with an area of at least 20.31m². (Exhibit 4)
That the elevated wall that is proposed alongside the entry stairs in the front setback will detrimentally impact the streetscape and is of a disproportionate height when compared to the main entry stairs of the Manor House.
That the proposed setback of 4.5m from the rear of the approved Manor House to the proposed boarding house is insufficient and will create an unacceptable visual relationship both on the subject site and with the adjoining property. The Respondent argues that the 4.5m separation proposed is a variation to the control at cl F1.2.1 'Building Articulation and Separation' in Part F1.2 of DCP 2015 which requires a 6m minimum separation for development up to two storeys. I note that the Applicant argues that this control does not apply as the clause is directed to multi dwelling housing and residential flat building developments.
Further, the finished floor level of the proposed building is between 0.36m and 0.86m above the natural ground line proximate to the northeast boundary. The Respondent argues that this elevation, along with the building length, will exacerbate the excessive scale and overlooking impacts to 18 Springwood Avenue arising from the proposed development.
That the large upper-level windows proposed along the north-eastern elevation of the boarding house will create opportunities for direct overlooking of the private open space of 18 Springwood Avenue.
That the proposed building is of excessive length. The Respondent notes that at an overall length of 17.1m the development application varies control 13 of section G10.3 of DCP 2015 which states: 'Buildings are not to exceed 15m width or depth in any direction'. The Respondent argues that this variation, in combination with the noncompliance with impervious areas (36% proposed as opposed to the 40% required by control 11 of s G 10.3 of DCP 2015) will result in the development being a visually prominent built form which will dominate its surrounds.

The statement of environmental effects (SEE) addresses subcl (4)(a) of cl 6.19 of the LEP 2015 Design Excellence as follows: The proposed siting and design of the boarding house is considered to provide a suitable level of detailing and a high standard of design in response to its location to the rear of an approved manor house and located behind the Springwood Community Centre. (Exhibit A)
In his statement of character compatibility Mr Haskell makes the following comments about the materiality of the proposed development: '- (the) multi-tiered gable roof design which includes symmetrical and offset features. The roof design harmonises with hip and gable forms evident in the local area and the mansard roof form incorporated in the approved manor home. Roof material is Colorbond and appropriately responds to the roof material of a large number of buildings within the local area including the adjoining 14 Springwood Avenue. - A mid-tone colour palette which draws from lighter and darker materials evident in the local area. - A combination of masonry and timber cladding material which harmonises with the materiality of other development within the locality. Cement render to masonry elements is consistent with the directly adjoining 14 Springwood Avenue.' (Exhibit B)
The Respondent had initially contended that the materials and finishes proposed exacerbated the bulk and scale of the development, but on the basis of the amended plans withdrew the contention. (Exhibit 2)

Will the form and external appearance of the development improve the quality and amenity of the public domain?

The works arising from the development application which interface with the public domain are principally retaining walls adjacent the driveway and main entry of the approved Manor House to achieve pedestrian access to the proposed boarding house located at the rear of the subject site. These works are also depicted in the landscape plans which accompany the development application.
As the proposed development will be located behind the approved Manor House the SEE submitted with the development application asserts that it will not be visible from the public domain. (Exhibit A)
Further the SEE addresses subcl (4)(b) of cl 6.19 Design Excellence as follows: The proposed boarding house will be largely screened from the public domain and will not be visible from the street. (Exhibit A)
The Respondent contends that the provision of elevated walls alongside the entry stairs, pedestrian access and driveway will have a detrimental impact on streetscape. The expert's alternative views on this issue are summarised as: 'Our disagreement in relation to this issue is about retaining walls which are provided to accommodate basement access. In PA's assessment, the retaining walls impart unsatisfactory streetscape impact and cause the proposed development to be incompatible with the character of the local area. DH observes that the proposed development involves modification of the basement access retaining walls which are approved by the manor house Complying Development Certificate (CDC). He has compared the current proposal with the previous approval and in his opinion, the height of the proposed retaining walls are lower than originally approved, but their length extends at a lower height closer to the front boundary. Overall, DH opines that the proposed retaining walls have less impact on the streetscape of Springwood Avenue that the CDC approved retaining walls. In any event, it is DH's opinion that neither the approved nor proposed retaining walls cause the proposed development to deliver a non-active street frontage or to be unsympathetic to the existing streetscape.' (Exhibit 4)

Does the development detrimentally impact on view corridors?

The SEE submitted with the development application asserts that the proposed development will have some impact on district views currently obtained by the Community Health centre over the subject site but that those impacts are acceptable. The SEE notes these views are limited and obstructed by existing vegetation on the subject site.

Does the development detrimentally impact on any land protected by solar access controls established in the DCP 2015?

DCP 2015 incorporates controls in relation to solar access in medium density residential development at Part F1.2.7, the controls state: Controls C1. Locate and design development so that between the hours of 9am and 3pm on 21 June: (a) at least 1m² of living room windows receive a minimum of 3 hours of unobstructed sunlight, and (b) at least 50% of private open space areas (or the principal area of private open space in the case of multi dwelling housing or seniors housing) receive a minimum of 3 hours of unobstructed sunlight, and (c) at least 30% of the required communal open space area receives a minimum of 3 hours of unobstructed sunlight. Note: This control applies to at least 70% of dwellings within a residential flat building C2. Locate and design development so that between the hours of 9am and 3pm on 21 June: (a) at least 1m² of living room windows associated with neighbouring development receive a minimum of 3 hours of unobstructed sunlight, and (b) at least 50% of private open space areas (or the principal area of private open space in the case of multi dwelling housing or seniors housing) associated with development on adjoining allotments receive a minimum of 3 hours of unobstructed sunlight. (c) landscape plant material selection, planting style and placement must be responsive to the solar access characteristics of the private open space. C3. Where pre-development sunlight access enjoyed by development on adjoining allotments is less than the outcomes prescribed in C2, new development is not to create any additional overshadowing for that development. C4. Limit number of single-aspect dwellings with a southerly aspect (SW-SE) to a maximum of 10% of the total dwellings proposed in a residential flat building. C5. Shadow diagrams for 10.00 am, 12.00 pm and 2.00 pm on the winter solstice (21 June) are to be submitted with a development application where a building of two storeys or more is proposed.
No contention is raised that the proposed development will result in non-compliant overshadowing of adjoining properties. Sun-eye diagrams accompany the development application which bear out the conclusion of the SEE that: The shadow diagram included as Drawing 910-914 show that the private open space of the dwellings at 14 Springwood Avenue are self-shadowed by the existing fence and retaining walls and existing structures. The proposed development does not impact solar access within 18 Springwood Avenue. The proposal does not impact on the private open space of the manor house which is provided on the balconies of each dwelling in the manor house. The proposed development will result in limited additional shadowing of the adjoining development. (Exhibit A)

The requirements of DCP 2015.

The SEE identifies that the proposed development varies the following controls in DCP 2015: 1. Control 6 in Part C3.4 which requires 15% of the site area to be deep soil. The SEE notes that 13.5% is provided. However, the amended plans indicate an area of 16.7% of deep soil is provided. The amended development application is compliant with the control. 2. Similarly, the SEE identifies a variation to the side setback controls which on the basis of the amended plans is no longer applicable. 3. In relation to control C1 of F1.2.5 the SEE notes the proposed development represents a variation to the 6m control. On the basis of the window locations and the proposed landscaping the SEE concludes that there will not be an adverse privacy impact and that the variation is acceptable. The SEE states: Part F1.2.5(cl. 1) states that: Proposed habitable room windows with a direct outlook to habitable room windows or private open space of an adjacent dwelling are to have a separation distance of no less than 6m. The inferred objective of the clause is to ensure that privacy between habitable rooms of adjoining dwellings is retained and provided for and that solar access and amenity is achieved. The design and siting of the boarding house carefully positions windows to ensure that there is no impact on the privacy of adjoining residents; either within the site - to the manor house; or to adjoining residential dwellings. There are no windows overlooking between the manor house and the boarding house. (Exhibit A) 1. The SEE identifies that the development application proposes a variation to C5 of Part G10.3: Cut and Fill in DCP 2015. That control requires any cut or fill within 5m of the boundary to be no more than 0.5m in depth. By reference to the architectural plans (in particular Section C), the amended development application continues to rely on an exceedance of this control adjacent to the bathroom of room 1.3 (external NGL RL 365.96, proposed cut to RL 365.30). The SEE states: The inferred objectives to the clause are: - to retain the natural topography - to ensure there are no adverse impacts on adjoining property owners - to minimise potential impacts on ground water The proposal includes a standard level of cut within the building site and includes a design proposal which steps the development down the site and will therefore reduce the bulk of the building and integrate the design with the landscape. The proposal is considered to comply with the objectives of the clause as follows: - the proposal steps down the slope of the site and utilises a split slab design which minimises changes to the natural landform on the site whilst still providing for level building envelopes. - the proposal is designed to ensure there is no adverse impact on adjoining properties. Suitably qualified structural engineers will be required to certify the design. - the proposal will not impact on ground water - the sire is not mapped as being within sensitive ground water table areas. It is noted that the approved manor house does not comply with this development standard. It is considered that the proposal is supportable for the above reasons. (Exhibit A) 1. The SEE does not address the variation to control C13 in Part G, Section 10.3 Springwood Precinct R3 SP03 Western Precinct in relation to building length, nor the pervious area control at C11 of Section 10.3 which provides: The minimum area to be retained as soft, pervious or landscaped area (excluding hard surfaces) is 40% of the total allotment area.
In relation to sub paragraph (5) in the preceding, I note that the architectural plans confirm that the overall building length adjacent to the common boundary with 18 and 14 Springwood Avenue is 15.75m and 16.95m respectively. Both represent a variation to the maximum building length control of 15m. Further the architectural plans include a calculation sheet which confirms that the proposed pervious area of the site is 36.3% (or 243.49m²) which is a variation to the requirement for 40%.
The experts provide evidence in relation to the proposed developments noncompliance with three provisions of DCP 2015. Firstly, Control 1 of F1.2.5 Building Articulation, secondly Control 5 of G10.3 Building Depth and finally Control 13 of G10.3 Minimum Pervious Area. Their evidence and disagreements are summarised in the joint report as follows: Control 1 F1.2.5 Building Articulation (xii) The separation distance between the proposed boarding house and approved manor house is 4.5m. PA opines that clause F1.2.1 pf BDCP 20158 requires a 6m setback. DH says that the relevant clause does not apply to the propose development because it is expressly said to apply to multi-dwelling housing and residential flat developments. (xiii) We agree that the proposed building separation is very similar to the existing separation between the two buildings on the south western adjoining No. 14 Springwood Avenue. However, PA opines that the non compliant setback exacerbates the bulk and scale and contributes to the proposed development being incompatible with the character of the local area. Control 5 of G 10.3 Building Depth (xiv) Control 13 (sic) sets a maximum building depth requirement of 15m, against which the depth of the proposed boarding house is between 15.75m on its north-eastern side and 16.95m on its north-western side. PA opines that the agreed non compliance is revealing of an overdevelopment of the site and contributes to unacceptable bulk and scale impacts. For his part DH observes the building depth of both buildings on 14 Springwood Avenue, the single building on 12 Springwood Avenue, the two buildings on 298-306 Macquarie Road, the Springwood Community Centre and the approved manor house on the subject site. He observes that each of those buildings exceeds 15m in length, with numerous of them being more than double that length. In DH's opinion the proposed building length is compatible with its surrounds and will not cause any adverse streetscape or bulk and scale impacts. Control 13 of G10.3 Minimum impervious area (xvii) We agree that the DCP provision requires the total landscaped area to be 268.32m². The proposed development provides 243.49 pervious surface area, resulting in a shortfall of 24.83sqm. PA opines that the shortfall in landscaped area leads to incompatibility of the proposed development with the character of the locality and is also symptomatic of the proposal being an overdevelopment of the site. DH disagrees. He first observes that since there is compliance with clause 29(2)(b) of SEPP(ARH) 2009 there is no power to refuse on the grounds of landscaped area. As to character incompatibility, DH says that the 40% standard is revealing of a planning intention for buildings to dominate landscape, but not to a significant extent. The proposed shortfall compared with the DCP requirement does not result in the proposed development becoming inconsistent with that broad description of landscaped character inferred through the planning controls. (Exhibit 4)

How the development addresses the matters at cl 6.19(4) (f)

The matters listed at sub cl (4)(f) of cl 6.19 are extracted at [16].
The SEE submitted with the development application makes the following statement in response to cl 6.19(f) of LEP 2015: The site is suitable for the development being zoned R3 Medium Density Housing. The existing use provides a dwelling which will be demolished to provide for the construction of an approved manor house. The rear yard will remain vacant and unmanaged. The proposed use of the land is considered to be a suitable use of the site. The proposal provides a consistent form and setting with adjoining multi unit dwellings to the west and is offset from a driveway which provides access to a dual occupancy development to the east. The proposed separations of building forms and the layout and design of the proposed boarding house will allow for good amenity for future residents of the site and for adjoining residents. The proposed boarding house has been articulated and modulated through the use of split levels and stairways. The proposal provides pedestrian access through the site through a variety of alternatives. Access is provided through the basement carpark via a dedicated pedestrian pathway. Alternatively, stairs are provided with access through the manor house between the two dwellings on the ground floor. A third option is provided on the western boundary with access provided along the side boundary. An accessible path of travel is provided through the basement parking area with a lift provided which demonstrates compliance with accessibility requirements. (Exhibit A)
The expert evidence was concentrated on part (iv) of sub cl (4), namely: the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form.
In addition to his concern about the acceptability of the proposed 4.5m separation to provide open space for the development, Mr Anzelotti also argues that the separation is inadequate in providing an appropriate relationship between the Manor House and the boarding house. He argues: 181. The position of the current COS between the two buildings will not provide for any buffer or separation to approved bedroom windows to the manor house along its rear elevation facing the boarding house. This will create a situation where an active outdoor area is positioned directly alongside sleeping bedroom no. 1 for unit 2 of the manor house. 18.2 The failure to provide for a non compliant (sic) building separation between the two building will not allow for the compliant provision of 40% pervious area for the subject site. In turn, the scale and size of the combined built forms does not allow for acceptable landscaping opportunities and is inconsistent with the desired future character of the area. 18.3 The design of the boarding house has not adequately responded to the approved manor house on the subject site. This is identified in potential impacts to the bedrooms located to the rear elevation of the Manor House and the failure to provide for a compliant building separation as required for medium density development via Part F1.2 Medium Density Residential of DCP 2015. The failure to provide for an appropriate building separation will create a non compliant communal open space area for the boarding house use, direct amenity impacts on the bedroom on unit 2 to the manor house and not allow for appropriate landscaping via a compliant pervious area for the subject site. The inability for the design to satisfy existing concerns is not considered to allow compliance with clause 6.19(4)(f)(i) of LEP 2015 in relation to the suitability of the site for development. (Exhibit 4)
In reply Mr Haskew concludes that the proposed development exhibits 'acceptable' architectural design supported by the following reasoning: 186. 6.19(4)(e) of BLEP does not require compliance with BDCP 2015 as opined by PA at paragraph 177. Rather, the clause requires that the consent authority to have regard to the provisions of the DCP. My methodology for calculation of private open space is setout under Contention 1. In my opinion the proposed private open space complies with clause 29(2)(d) of SEPP (AHR) 2009 . Whilst the SEPP sets the must not refuse development standard for private open space rather than communal open space, the open space which is provided under clause 29(2)(d) is clearly for communal use. Accordingly, it is my opinion that any DCP provision which requires more than 20 m^ communal open space has no effect on the assessment of the proposed development. I further note that the only DCP provision which relates to communal open space is FI .2.3 of Part FI .2 - Medium Density Residential. That clause only applies to residential flat buildings. Accordingly, the 4.5m separation between the proposed boarding house and approved manor house does not contribute to any communal open space non-compliance. 186. I disagree with PA's assessment conclusions in relation to pervious surface area. The relevant control is C11 of G10.3 - Springwood Precinct R3-SP03 - Western Precinct. The control requires that "the minimum area to be retained as soft, pervious or landscaped area (excluding hard surfaces) is 40% of the total allotment area". In my opinion the control sets a minimum landscaped area requirement. I disagree that the proposed landscaped area should be assessed as non-compliant, because the proposed development satisfies clause 29(2)(b) of SEPP (ARH) 2009. To the/extent that the DCP requirement is indicative of existing and desired future character, I cannot conclude that a shortfall of 24.83sqm of DCP assessable landscaped area will lead to disharmony with the character of the local area. My opinion is guided by paragraph 29 in Project Venture. Given that the DCP prescribes a minimum landscaped area of 40% it is fair to say that the existing and desired future character of medium density development within the local area is buildings which dominate the landscape, although not to a significant extent. In my assessment, a shortfall in landscaped area of 24.83sqm (9.25%) does not transform the landscaped character of the: proposed development as being buildings which dominate landscape to a significant extent. In my opinion the proposed development delivers a landscape character which is consistent with what I above inferred from the landscape character delivered by the controls, that is, buildings which dominate landscape, albeit not to a significant extent. Accordingly, it is my opinion that the landscape character of the proposed development is compatible with the character of the local area. 187. I disagree with PA that the proposed development involves non-compliance with building separation requirements under Control Cl of clause FI.2.1 of BDCP 2015. The control governs the separation between detached dwellings within a multi-dwelling housing development or residential flat building development. The proposed development is for a "boarding house" which is separately defined within BLEP 2015. Hence, clause F1.2.1 of BDCP 2015 does not apply to the proposed development. In the absence of an applicable building separation control, my assessment of building separation is based on merit considerations. In undertaking that assessment 1 take into account the following: - The building separation of 14 Springwood Avenue; - The nature of the interface between the approved manor house and the proposed boarding house. (Exhibit 4)

Submissions

Mr Seton, for the Respondent, identifies that at the end of the proceedings the following issues remain and support the refusal of the development application: 1. that the Court, in undertaking the required consideration of the compatibility of the proposed development with the locality, would conclude that the development is not compatible primarily on the basis of the lack of provision of open space, the limited separation proposed between the boarding house and the approved manor house and the building depth. 2. that after considering the matters at cl 6.19(4) of LEP 2015 the Court would conclude that the development fails to achieve design excellence as required by cl 6.19(3) of LEP 2015. He notes that the particular matters that are pleaded that are of specific reference in the list of matters in subcl (4) of 6.19 are (4)(e), which is the requirements of DCP 2015, and (4)(f)(iv), which is the relationship of the development with other development, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form.
In relation to the lack of provision of open space as required by cl 29(2)(d) of SEPP ARH Mr Setons submissions can be summarised as follows:

The area proposed is not a private area and will be traversed by residents in both the boarding house and the approved manor house. In particular in his view the open space should be designed to serve the residents or occupants of the boarding house, not occupants of another building that is located on this land.
That it is inappropriate to include areas of pathways, clothes drying and hardstand associated with the manor house in the area utilised for the calculation of open space.
That on the preceding basis, and the evidence of Mr Angelotii, the Court should conclude that the proposed private open space area is lacking in size, is of poor amenity in terms of privacy for lodgers and does not meet the intent of the control.

Mr Seton makes the following submissions in relation to the compliance of the proposed development with DCP 2015:

Setback of the boarding house from the rear of the approved manor house:

That in considering whether the proposed development exhibits design excellence, in particular the matters at cl 6.19(4)(f)(iv), the Court should have regard to the planning controls and what is expected or anticipated by those controls for medium density type development in this particular location when determining what is an appropriate separation distance.
In this case the relevant provisions of DCP 2015 are firstly, at F1.2 Building articulation and separation where C1 provides for a 6m separation between built forms up to two storeys and secondly at F1.2.5 Visual Privacy which also seeks a separation of 6m to address visual privacy issues.

Building length and pervious area

The subject site is within the Springwood Precinct R3SP03 under DCP 2015. Control C13 requires that the buildings are not to exceed 15 m width or depth in any direction. Mr Seton notes that the proposed development is non-compliant, being 16.95 m in depth on the north-western side.
He submits that a variation should not be granted by the Court in circumstances where compliance with this control may lead to the development also complying with controls for building separation and impervious area. Mr Seton argues that the combined noncompliance is indicative of a failure to achieve design excellence.

Finally, Mr Seton notes that the evidence of Mr Haskew in the joint report is that the architectural design is acceptable, not that the proposed development exhibits design excellence.
Ms Reid's submissions address the two areas raised by Mr Seton. Firstly, the compatibility of the proposed development with character of the locality and the issue of the suitability of the private open space and setback to the manor house. And secondly whether the development exhibits design excellence.
Ms Reid submits that the private open space proposed for the boarding house is acceptable on the following grounds:

there is no mandatory requirement under SEPP ARH that the area must be private, however the area proposed does achieve privacy from the public domain;
the control is a 'do not refuse standard' if one area of at least 20 square metres with 3 metres is provided;
on the architectural plans open space of an area of 37.39 square metres is indicated. That is an area that is intended to be an area of private open space, despite the lack of 3m width across its entirety.

Ms Reid submits that the terms of cl 6.19(4)(e) of LEP 2015 require the Court to have regard to the requirements of DCP 2015 but does not mandate compliance. Ms Reid argues that, with the exception of the potential privacy impacts which the planning experts agree can be resolved by conditions for obscure glazing, the Respondent focusses on non-compliances with planning controls for which there is no identified impact. Ms Reid argues that control C1 at F1.2 Building articulation and separation does not apply to boarding house development, that the variation proposed to the building length and pervious area controls is minor and of no effect. Further, she submits that DCP 2015 is required to be applied flexibly not strictly.
Ms Reid emphasis that the consideration of DCP 2015 is only one of the matters which are collectively required to be considered in determining design excellence. Ms Reid concludes following the cumulative assessment under subcl (4) of cl 6.19 of the LEP 2015, the Court would conclude the proposal exhibits design excellence and warrants approval.

Findings

Pursuant to cl 6.19(3) of LEP 2015 I find that the proposed development does not exhibit design excellence. In making the required finding at cl 6.19(3) of LEP 2015 that the proposed development does not exhibit design excellence, I have given consideration to the factors at subcl (4) and reached the following conclusions. The proposed development does not represent a high standard of design
Sub clause (4)(a) of the LEP 2015 asks whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved. For the following reasons I find that the proposed boarding house does not represent a high standard of architectural design for a boarding house. As I held in Arxidia Pty Ltd v Randwick City Council; Arthur Wong Pty Ltd v Randwick City Council [2017] NSWLEC 1463 at [101] in my view there is no reason why affordable housing should not provide a high level of amenity and architectural design. I am not persuaded that design excellence in the context of a boarding house is not a lower bar.
Despite being proposed on a part of the site behind the approved Manor House, the design fails to respond to the constraints of the site and the existing approvals. Firstly, the separation provided between the Manor House and the proposed boarding house is insufficient to provide adequate privacy for both developments and the residential bedrooms they contain. I accept and adopt the evidence of Mr Anzelotti at [39] in this regard. Secondly, I acknowledge the boarding house provides smaller accommodation per resident in part to give effect the aims of SEPP ARH to provide affordable rental housing. This places greater importance on open space. I accept and adopt the evidence of Mr Anzelotti that the proposed development does not provide a quantum of private open space for the boarding house residents which is compliant with the 'do not refuse' standard at cl 29(2)(d) of SEPP ARH. Further, I am satisfied that the amenity of the outdoor open space proposed for the boarding house residents by the development application is unacceptable due to its lack of privacy, functionality, and design. In my assessment the open space operates predominately as a thoroughfare between the boarding house and the manor house being bisected and traversed by pathways, paved and service areas. All residents of the boarding house must access the building through this area either from the basement via the Manor House, or via the pedestrian path proposed to the eastern side of the manor house. The access pathway bisects the space. Mr Haskell nominates the remaining area to the east of the pathway and contiguous with the paved communal open space nominated on the architectural plans. This area is of constrained dimension, limited privacy, and by reference to the landscape plans proposed to be occupied almost in entirety by an outdoor table and significant planting. By reference to the solar analysis in the architectural plans, the small area of paved open space adjacent to the common room receives very little solar access.
In relation to the form and external appearance of the boarding house more broadly I am not persuaded that the three-dimensional form and articulation of the building represent a high standard of design. In particular, the poorly located fenestration arrangement between the boarding house and the Manor House, lack of shading devices provided, the planar façade design and excessive building length point away from a conclusion of high-quality design.
The development application itself provides scant information to address this matter for consideration, essentially limited to the extract of the SEE reproduced at [23]. The statement of character compatibility prepared by Mr Haskell does not reference the merits of the architectural design. I accept the submission of Mr Seton that it is relevant that at its highest Mr Haskell concludes that the proposed development exhibits 'acceptable' architectural design.
Each of these matters relate to the architectural design of the site and the proposed boarding house building and, in my view, fall short of a high standard architectural design. The Manor House approval represents a constraint of the site both physically and in terms of the relationship of its residents and the residents of the proposed boarding house (for example the visual privacy relationship) that has not been adequately resolved in the architectural design. The form and external appearance will improve the quality and amenity of public domain
The proposed development involves retaining and access works to the front setback of the subject site to Springwood Avenue. Landscaping works are also proposed as detailed in the landscape plan. The question put by subcl (4)(b) of the LEP 2015 is whether the proposed development 'improves' the quality and amenity of the public domain. Following a review of the architectural and landscape plans, I am not persuaded by Mr Angelotti's evidence that the reconfiguration of retaining walls and the entry stairs proposed will be detrimental to the streetscape. There is significant canopy tree and understory planting proposed across the front setback. The scale of the stairs and retaining walls is not incompatible with the levels of the existing ground in the front setback. For these reasons I am satisfied that the proposed landscape works, and hardscape works proposed, will achieve and improvement in the presentation of the subject site to Springwood Avenue. The development does not have a detrimental impact on view corridors
I accept and adopt the conclusion of the SEE (reproduced at [30]) that the proposed development will have a minor, acceptable impact on district views. The Respondent does not dispute this conclusion. Further, it accords with my observations from the onsite view at the commencement of the hearing. The development does not impact on any land protected by solar access controls
By reference to the architectural plans, I have reviewed the compliance of the proposed development with the controls at Part F1.2.7 of DCP 2015. I accept that the proposed development does not unacceptably impact on solar access. I accept the conclusion of the SEE, extracted at [32]. Consideration of the requirements of DCP 2015
The fifth matter for consideration at subcl (4) is the requirements of DCP 2015. The proposed development is broadly compliant with the provisions of DCP 2015. However, as detailed at [33]-[35] the proposed development seeks a variation to a number of controls. In reference to control 1 of F1.2.5, which requires 6m between habitable rooms, I accept the evidence of Mr Haskell that this control does not apply to development for the purpose of a boarding house as the drafting of the clause limits its application to multi dwelling housing and residential flat buildings. I accept Ms Reid's submission in this regard.
In relation to the remaining variations relied on by the proposed development application (cut and fill, pervious area, building length) are symptomatic of the architectural design of the proposal representing an over development of the site. I accept and adopt Mr Anzelotti's evidence, summarised at [35], in this regard. The consideration at cl 6.19(4)(e) of LEP 2015 does not mandate compliance with the provisions of DCP 2015, but in my assessment the variation to these three controls are interlinked. In my view the building design proposed results in an extent of site coverage of built elements on the site being too great to adequate ameliorate privacy impacts and provide adequate open space of high quality. I find that a consideration of the requirements of DCP 2015 leads away from a finding of design excellence. The matters at subcl (f) of cl 6.19 of LEP 2015
As noted at [38] the experts focussed their evidence on the matters at sub cl (f) on part (iv): the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form. Having considered the expert evidence and giving weight to the applicable planning controls consistent with the principle detailed in BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399 at [117], I find that the development application adequately addresses the matters at (i), (ii), and (iii). In other words I am satisfied that the land is suitable for the development, the existing and proposed uses are acceptable, and the development is responsive to the streetscape constraints of Springwood Avenue.
However, for the reasons detailed in the preceding discussion I am not persuaded that the design of the development appropriately addresses its relationship with the approved Manor House or the existing neighbour at 18 Springwood Avenue (matters listed at cl 6.19(4)(f)(iv) of LEP 2015). Whilst the experts agree that the visual privacy impacts can be addressed by the application of obscure glazing to the fenestration and amendment of the fenestration proposed so that windows are offset, such requirements are indicative of an architectural design that has not adequately resolved the relationship of the proposed built form to existing and proposed development.
My comments at [50] - [52] are relevant to the consideration of bulk, massing and modulation of building required at cl 6.19(4)(f)(v) of LEP 2015. I reiterate my conclusion that the proposed design lacks a design approach to modulation and massing that is indicative of design excellence.
I have considered the remaining matters listed at cl 6.19(4)(f)(vii) - (x) but in the case of the proposed development they do not raise issues that warrant separate analysis or are matters which are addressed by the preceding discussion.
Having had regard to the mandatory matters at cl 6.19(4) of LEP 2015, I find that the proposed development fails to exhibit design excellence. The mandatory precondition at cl 6.19(3) of LEP 2015 is not met.

Conclusion

I note that both the public submissions and the evidence in the proceedings canvassed additional issues and matters, particularly in relation to whether the proposed development was compatible with the character of the Springwood precinct. Consistent with the obligation at s 56 of the Civil Procedure Act 2005, namely, to facilitate the just, cheap and quick resolution of the real issues in the proceedings, I have not made findings in relation to these matters as the failure to meet the precondition at cl 6.19 of LEP 2015 results in the Court having no power to determine the development application by the grant of consent. The development application must be refused.
As a result of these findings, the outcome of the proceedings is that the appeal is dismissed, and the development application is refused.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development application X/78/2021 seeking consent for the construction of a two-storey boarding house containing a common room and outdoor space, six boarding rooms and associated site works at 16 Springwood Avenue, Springwood (Lot 8 DP 655479) is determined by way of refusal. 3. The exhibits are to be returned except for Exhibits A, C and 2. .………………………… D Dickson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2022

Margetic v Blue Mountains City Council

At a glance

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Decision date

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Judgment (20 paragraphs)

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Cases Cited (4)