Northern Beaches Essential Accommodation Pty Ltd v Northern Beaches Council

Is the Proposed Development consistent with the desired future character (DFC) of the C8 Belrose North Locality? (Contention 1)

1. The Respondent contends that the Proposed Development is not consistent with the DFC described in the C8 Belrose North Locality Statement contrary to cl 12(3)(b) of the WLEP 2000 and does not comply with development standards for the locality contrary to cl 12(2) of WLEP 2000 (ASOFAC, Contention 1, particular k, Ex 1)
2. There is no agreement between the experts as to the DFC of the C8 Belrose North Locality. (Ex 3)
3. Mr Layman at par 48 of the JER provides an extract from the C8 Belrose North Locality statement pursuant to the WLEP 2000 setting out the DFC for the locality as follows: "LOCALITY C8 BELROSE NORTH DESIRED FUTURE CHARACTER The present character of the Belrose North locality will remain unchanged except in circumstances specifically addressed as follows. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms and buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged. Development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. A dense bushland buffer will be retained or established along Forest Way. Fencing is not to detract from the landscaped vista of the streetscape. Development in the locality will not create siltation or pollution of Middle Harbour." [Emphasis added.]
4. The Applicant submits that there are a number of principles that are not in dispute.
5. The first undisputed principle relates to the measure of low intensity and low impact which is relevant to assessing whether the Proposed Development is consistent with the DFC of the locality. The Applicant submits that, with the exception of side setbacks for the upper building and the rear setback in relation to the turning bay, the Proposed Development complies with the key numeric controls in the WLEP 2000 including the C8 Belrose Locality Statement.
6. The Applicant submits that this numerical compliance is a significant measure that the intensity and impact of the use of the land as proposed is low and the Applicant relies on the decision of Senior Commissioner Dixon in Japara Healthcare Limited v Northern Beaches Council [2018] NSWLEC 1670 (Japara) at 71: "[71] Ultimately, as the experts state in order to be consistent with the Desired Future Character of the relevant locality statement "the consent authority only need be satisfied that the use is low impact and low intensity and the permissible development and controls that apply must be used as a significant measure of what intensity and impact of the of use is "low." The proposal is expressly permitted in the zone and complies with the FSR and landscape area requirements"."
7. I note that the development in Japara related to the B2 Oxford Falls locality whereas the Proposed Development is located within the C8 Belrose North locality of the WLEP 2000. The language in the two DFC statements is similar but not identical however, they both do have the reference to "low intensity, low impact uses". I accept that compliance with numerical controls may be a measure or an indicator as to consistency with the DFC for the Proposed Development however, cl 18(2) of the WLEP 2000 expressly provides that numerical compliance does not guarantee consistency with the DFC so, the Court's enquiry and assessment of "low intensity, low impact" must go further and beyond the Proposed Development's numerical compliance with the controls of the WLEP 2000
8. I note that the Respondent, in opening, drew the Court's attention to the Development Assessment Report at Tab 8 of Ex 2 which includes an analysis of low intensity and low impact, and the report relies on the decision of Hussy C in Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128. I reproduce an extract from the Development Assessment Report as follows: "As the proposal is not a conventional detached dwelling house, the development is required to conform as a "low intensity, low impact" use as described in the Land and Environment Court judgment Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128. The following definition was provided in that judgment: Intensity - is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore "low intensity" would constitute a development which has a low level of activities associated with it. Impact - is commonly used in planning assessment to identify the likely future consequences of proposed development in terms of its surroundings and can relate to visual, noise, traffic, vegetation, streetscape privacy, solar access etc. Therefore 'low impact' would constitute a magnitude of impacts such that was minimal, minor or negligible level and unlikely to significantly change the amenity of the locality."
9. The second undisputed principle is that Character and DFC should be determined primarily from the streetscape. For this purpose, I accept that the lower or rear building is unlikely to be visible from the streetscape.
10. In relation to DFC, it is agreed that the DFC for a neighbourhood or area can evolve over time, responding not only to the provisions of the WLEP 2000 but also to developments carried out in accordance with development consents granted under the WLEP and the EPA Act (Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 at [53] ("Woollahra v SJD"). This principle means that in assessing DFC, regard can be had to the extent approved development approved under that instrument. The Respondent does not resile from this principle other than to submit that the consistency test must be assessed each and every time and that this task falls to the Court in these proceedings in relation to the Proposed Development.
11. The Applicant submits that the test of consistency with the DFC is not onerous, and merely requires that the Proposed Development is found not to be antipathetic to the Locality Statement (New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 at [25]-[29]). I come back to the test of consistency and set out my reasons why consistency requires a finding of a positive outcome of compatibility and not a negative finding limited to not being antipathetic.
12. The framework of the WLEP 2000 is different to the Standard Instrument - Principal Local Environmental Plan (Standard Instrument) prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 and which has since been adopted by councils throughout New South Wales including the Respondent. As such, I will set out the relevant provisions of the WLEP 2000 in order to outline the terms under which the Court is required to determine these proceedings within the context of the contentions raised by the Respondent.
13. One of the purposes of the WLEP 2000 specified at cl 3(b) is "to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places".
14. Clause 12 of the WLEP 2000 sets out the three mandatory considerations before granting consent for development. Firstly, the consent authority must be satisfied that the development is consistent with any relevant general principles of development control in Pt 4 of the WLEP 2000. Secondly, the consent authority must be satisfied that the development will comply with development standards for the development set out in the Locality Statement for the locality in which the development will be carried out (cl 12(2)(b)). The third mandatory consideration is the most relevant as it is the subject of Contention 1. Clause 12(3) requires the consent authority to be satisfied that the Proposed Development is "consistent with" the DFC described in the relevant Locality Statement and importantly includes the following words which do not appear in relation to the first or second mandatory considerations: but nothing in a description of desired future character creates a prohibition on the carrying out of development.
15. There is a note that appears below cl 12 of the WLEP and reads as follows: To assist with understanding; Category One development is development that is generally consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality.
16. Clause 18 of the WLEP 2000 sets out how the built form of development will be controlled as follows: 1. Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement. [Emphasis added.] 2. Strict compliance with development standards, however does not guarantee that the development is consistent with either the general principles or development control or the desired future character of the locality. [Emphasis added.] 3. Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control.
17. Clause 20 of the WLEP 2000 is the equivalent of the current cl 4.6 of the Standard Instrument relating to the process of seeking to justify a contravention of a development standard however the terms of cl 20 are different. The Respondent notes that rear and side setbacks are development standards not complied with and that the Proposed Development is not accompanied by any application or written request pursuant to cl 20 of the WLEP 2000. I note that this is not raised as a contention by the Respondent and that the Applicant, in opening, submits that cl 20 in its terms does not require a written request, but that all that is required is a finding of consistency. The decision of Duggan J in Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 relates to the consent granted for the adjacent boarding house at 14 Wyatt Avenue and her Honour considers the requirement of cl 12(2)(b) of the WLEP 2000 to comply with the development standards of the Locality Statement and applies the terms of cl 20 of the WLEP 2000 at [31] then at [62]-[68]. I accept that a finding of consistency is what cl 20 of the WLEP 2000 requires and that a separate written request is not required as it otherwise would be pursuant to cl 4.6 of the Standard Instrument. I will come back to what it means to find "consistency".
18. I accept the Respondent's opening submission that the WLEP 2000 places an emphasis on a qualitative assessment as opposed to a strictly numerical or quantitative assessment (cl 18, WLEP 2000).
19. The issue in this case comes down to the assessment of low intensity, low impact use, in particular, the intensity of the proposed boarding house. The ASOFAC at Contention 1, particular c, (Ex 1) provides as follows: "With 55 rooms all able to accommodate two boarders, a total of 110 boarders, the proposal is over four times the intensity of use of the maximum scale of boarding house development permitted on the R2 zoned land opposite and over double the intensity of use of the approved boarding house on 14 Wyatt Avenue."
20. The Respondent contends that the Proposed Development presents an intensity of housing land use that is inconsistent with the large lot rural and low density character of land immediately surrounding the Site. I will come back to character and set out my reasons for reaching the conclusion that the Proposed Development is consistent with the DFC of the locality.
21. In the context of density or intensity of use, it is agreed that under the now repealed ARH SEPP or under the current State Environmental Planning Policy (Housing) 2021 (SEPP Housing), the maximum size boarding house permitted would comprise 12 boarding rooms. The Respondent contends that a 55 room boarding house would ordinarily be considered a large boarding house and "one more associated with locations within or adjacent to Business Centres offering a wide range of shops, restaurants/cafes, entertainment, health and other services as well as transport options to support the physical and social wellbeing of the future residents." (ASOFAC Contention 1 particular a, page 14).
22. I accept that the proposed boarding house is a large boarding house however the Court is required to consider the terms and controls as set out in the WLEP 2000 as neither the ARH SEPP nor the SEPP Housing apply to the Proposed Development. The issue in this case is whether the Proposed Development is consistent with the DFC of the locality and to what extent quantitative compliance with numerical controls is sufficient to achieve consistency with the DFC.
23. It is a relevant fact that the proposed boarding house rooms do not include kitchen facilities which results in the Proposed Development not exceeding the housing density control the C8 Belrose North locality.
24. Mr Layman's assessment as set out in the JER is an honest opinion from a town planning perspective however it is relevant that Mr Layman had not carried out a site inspection by entering the premises at the time of preparation of the JER. Following cross examination of the town planners, I accept the evidence of Mr Lovell that in relation to density, one cannot compare the R2 zone across the road with the Site as they are subject to different controls. Any such comparison is not particularly useful. Similarly, Mr Layman reinforces that a numerical assessment is not very helpful.
25. Mr Lovell at par 38 of the JER gives written evidence that the Proposed Development has been carefully designed to reflect the topographical conditions of the Site, with the building form stepping down towards the rear. Mr Lovell describes that "[t]he two buildings have been intentionally broken into a series of interconnected parts to provide both vertical and horizontal articulation, reduce the expanse of unrelieved walls, maximise light penetration and ventilation to the buildings, and minimise the apparent bulk and scale of the development." The natural rock faces on the Site are to be retained as shown in the Site Analysis Plan.
26. The Applicant's bundle of documents at Ex D, Tab 18 includes a Context Plan showing nearby approved development including the John Colet School which I reproduce below at Fig 2. The Applicant submits that there are two important relevant development consents approved on nearby or adjacent land, namely: 1. a 25 room boarding house at 14 Wyatt Avenue; and 2. a child care centre for u to 60 children at 10-12 Wyatt Avenue. Fig 2: Context Plan
27. The Applicant refers the court to the Development Application Assessment Report for 14 Wyatt Avenue DA2018/0401, prepared by Adam Mitchell (Ex D, Tab 7), by way of context and comparison. Mr Mitchell's opinion is that "it is evident that the C8 Belrose North locality has an eclectic array of land uses." In relation to the boarding house proposed at 14 Wyatt Avenue, Mr Mitchell concludes at page 6 as follows: "Accordingly, it can be concluded that the proposed use of the land for the purpose of a boarding house is consistent with the prevailing residential land use, and is not dichotomous to other developments within the locality. It can also be concluded that by virtue of this compatibility, the development will be able to co-exist in harmony with the rest of the C8 locality, and, will thereby 'unchange' the character of the area."
28. The Respondent acknowledges that the development approval for the adjacent site at 14 Wyatt Ave Belrose is absolutely relevant and will form part of the local character pursuant to the decision of Woollahra v SJD at [52]-[59], a decision of Preston CJ relating to an appeal of the decision of Clay AC in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [106]-[109].
29. Notwithstanding this acknowledgement, the Respondent seeks to distinguish the Site as being a large "L" shaped allotment and as such the prior assessment of the adjacent approval does not assist and the Court is required to undertake the assessment of whether the Proposed Development is consistent with the DFC. The Respondent agrees that the 'consistency test' has to be undertaken each and every time a development consent is sought. The application of cl 18 of WLEP 2000 requires a qualitative assessment because firstly, a built form is required to be in accordance with the DFC of the locality, and qualifies the requirement to build in accordance with development standards does not guarantee achieving consistency with the DFC of the locality and finally, there is no requirement to comply strictly with a quantitative requirement. The Respondent submits that it is ultimately a question for the Court to determine whether the Proposed Development is consistent with the DFC of the Locality C8 Belrose North.
30. I agree with the Respondent that the Site can be distinguished from the adjacent land for which development approval for a boarding house was granted at 14 Wyatt Ave Belrose however, as a result I have formed the opinion that a larger L shaped site can accommodate a larger, or seemingly more intense boarding house by virtue of the total number of rooms as proposed by the Applicant while remaining as a low intensity, low impact use as required to be consistent with the DFC.
31. The DFC of the Site is as described in the C8 Locality Statement reproduced above at [19] which was adopted 22 years ago and refers to the then present character remaining unchanged unless: 1. the natural landscape is protected or buildings being grouped to result in minimum amount of disturbance and blending in is encouraged; and 2. development is low intensity, low impact uses.
32. The Respondent concedes that as at the date of the inspection on Site, there is no doubt that the natural landscape had been modified and had been disturbed. There is no separate contention that the Proposed Development does not minimise the amount of disturbance to the landscape and I note that the design of the siting of the Proposed Development is such to retain the natural rock outcrop and I also note the significant landscaping works proposed.
33. I now come back to the test of assessing consistency. The Respondent refers the court to the decision of Nott C where Ms J Jagot, now Justice Jagot of the Hight Court, appeared for the Applicant in Residential Lifestyles Pty Ltd v Warringah Council [2005] NSWLEC 250 ("Residential Lifestyles"). Ms Jagot referred to cases where it was held that a development would always be consistent with the objectives of a zone if the development was merely "not antipathetic" to the objectives (at [29] Residential Lifestyles), however Nott C preferred the well-reasoned exposition of Bignold J in Dem Gillespies v Warringah Council [2002] NSWLEC 224 at [70] to [77] (or 124 LGERA 147 at 163 to 166) which I reproduce as follows: "[70] With the benefit of the survey of the decided cases on the meaning that has been given to the word "consistent" in clauses in planning instruments that require an opinion by the consent authority that a proposed development be "consistent with the zone objectives" , I would for myself, conclude that the word "consistent" appearing in cl 12(3)(b) of the LEP, assumes its ordinary and natural meaning. That meaning in my respectful opinion is not confined to the notion of the proposed development "not being antipathetic" to the desired future character of the Locality. [71] The dictionary meaning of the word "antipathetic " (eg the Macquarie Dictionary: "having a natural antipathy, contrariety or constitutional aversion ") indicates a far stronger, but narrower, connotation than the connotation of the word "inconsistent". Clearly, there can be an "inconsistency" with a stated object which does not involve any element of "antipathy" to that object.

[72] When Clarke JA in Coffs Harbour Environment Centre Inc [ Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185] stated at 193 that whatever be the precise ambit of provisions in a local environmental plan which prohibited all development "unless the Council was satisfied that the carrying out of the development is generally consistent with one or more of the stated objectives of the zone…the provisions do not permit an antipathetic development … " , his Honour was simply propounding the view that he had already expressed at 192 that the construction under land zoned "Public Recreation" of a sewerage treatment plant "could not possibly be regarded as being compatible with public recreational use of the land". His Honour had deliberately eschewed any attempt to define the ambit of the relevant planning provisions and his conclusion that they did not permit the carrying out of "antipathetic" development was nothing more than postulating an obvious and unarguable proposition that such a development could not qualify as being "generally consistent" with the zone objectives.

[73] Accordingly, it is clear in my opinion that whereas something that is antipathetic to a stated object is obviously inconsistent with that object, antipathy is not a true synonym of inconsistency and the meaning of inconsistency is not to be confined to the meaning of antipathy. Inconsistency can arise without any antipathy. [74] On the other hand, "compatibility" in my judgment may reasonably be regarded a synonym of "inconsistency" [this last word should have read "consistency" ] and the meanings of these words is very similar, although in Coffs Harbour Environment Centre Clarke JA at 192 rejected as "too expansive" an argument that "consistent" meant "compatible" and one of the dictionary meanings of the latter word was "mutually tolerant " . I would respectfully agree with Clarke JA's conclusion that that particular meaning of "compatible" was too expansive in the context of its application to the statutory provision requiring the consent authority's opinion that the proposed development be "generally consistent" with the zone objective. However, the primary dictionary meaning of "compatible" (the Macquarie Dictionary : capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word "consistent" in its context in cl 12(3)(b) of the LEP. [75] In so concluding, that the ordinary and natural meaning of the word "consistent" in its statutory context is to be applied as being appropriate to the true meaning of cl 12(3)(b) I have had regard to the function and effect within the LEP of the Locality Statements […] [77] For the foregoing reasons, I am quite unable to accept the Applicant's argument that the word "consistent" in its context in cl 12(3)(b) means "not antipathetic". Rather I would hold that it has its ordinary and natural meaning (eg as in the Macquarie Dictionary: "1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles, course etc" )."

1. The Respondent also referred the Court to the decision of Clay AC where he considered the word "consistent" in Jeffrey v Canterbury-Bankstown Council [2020] NSWLEC 1581 at [103] - [109] which I cite below as follows: [103] First, an observation about the word "consistent". It is often said, citing Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 (Schaffer) that: "The proper approach to the question of consistency with the zone objectives is now well settled. The guiding principle is that a development will be generally consistent with the zone objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is incompatible." [104] In Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14; [2014] NSWLEC 95 (Friends of Malua Bay), Craig J dealt with a provision of the relevant local environmental plan in Class 4 proceedings not permitting the grant of consent to development unless the development was consistent with the objectives of the zone. His Honour said this at [42]-[43]: "42 Before turning to identify the material both before the Council and the court, directed to compliance with cl 11(3) of LEP 1987, it is necessary to address the meaning of "consistent" when used in the subclause. In Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 Clarke JA stated that, in the context of the provisions there being considered, the paragraph was intended to prohibit "antipathetic development". Subsequently, that meaning was attributed to provisions of local environmental plans requiring development to be "consistent" with identified objectives (Schaffer Corporation Ltd v Council of the City of Hawkesbury (1992) 77 LGRA 21; Mackenzie v Warringah Council [2002] NSWLEC 131 at [98] and the cases there cited). More recently, the ordinary meaning of "consistent" has been applied to such provisions. In Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147, Bignold J considered the meaning of the word in the context of planning instruments requiring the opinion by a consent authority that a proposed development be "consistent with the zone objectives". In that context, his Honour considered at [70] that the word "consistent" should assume its ordinary meaning and should not be confined to the notion of a proposed development that is "not antipathetic" to a zone objective. 43 According to the Macquarie Dictionary (on-line) that meaning is: "1. agreeing or accordant; compatible; not self-opposed or self-contradictory." It seems to me that, in the present context, it is appropriate to regard "consistent" as being synonymous with "compatible" (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45])." [105] Importantly, his Honour said that consistent is synonymous with compatible. [106] More recently, in Cranswick-Smith v Council of the City of Sydney [2020] NSWLEC 1082, Commissioner O'Neill addressed the meaning of consistent in the context of considering a cl 4.6 objection. The learned Commissioner observed as follows at [50]: "The applicant submitted that the proposal need only be "not antipathetic" to the zone objectives and relevant height of buildings development standard objectives to be consistent with those objectives, citing Pearlman CJ's decision in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 ("Schaffer"). Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224 [165] overturned the "antipathetic" test in Schaffer and held that the meaning of "consistent" in relation to the clause he was construing (being consistent with a zone objective) assumed its ordinary and natural meaning and that meaning was not confined to the notion of the proposed development "not being antipathetic" to the desired future character of the locality. I adopt the same ordinary and natural meaning of "consistent" in relation to the requirement under cl 4.6(4)(a)(ii) of LEP 2012 that development consent must not be granted for development that contravenes a development standard unless I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height of buildings development standard." [107] O'Neill C preferred the approach of Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224 rather than the antipathetic test in Schaffer. The learned Commissioner took the same approach as Craig J in Friends of Malua Bay. [108] I agree. In my opinion the word "consistent" is a word which attracts its ordinary meaning, a synonym of which is "compatible". To utilise a phrase such as "not antipathetic" has a tendency to divert from the requirement of the language to find a positive outcome - consistency - rather than not find a negative outcome - antipathetic. [109] Accordingly, I proceed using the ordinary meaning of the word "consistency" in determining whether this proposed development is consistent with the relevant objective of the zone."
2. I, too, agree with Clay AC and, am of the opinion that the word "consistent" is a word with attracts its ordinary meaning, a synonym of which is "compatible" and requires a positive outcome rather than a finding of a negative outcome, antipathetic.
3. Having considered the evidence of the expert planners in the JER and oral evidence in cross examination, I conclude that the Proposed Development is consistent with the DFC of the C8 Locality Belrose North for the following reasons: 1. I have taken into consideration my observations of the locality during the site inspection and noting the developments approved in the locality I find that the DFC has evolved (Woollahra v SJD); 2. The Proposed Development is designed to blend in with the colours and textures of the natural landscape; 3. The use of the Proposed Development will be low intensity, low impact notwithstanding the number of rooms because the size of the boarding house is commensurate with the size of the Site itself, as compared with the adjacent site at 14 Wyatt Ave, Belrose; 4. The proposed landscaping will enhance the vegetation on the Site.
4. I conclude as follows in accordance with the terms of cl 12 of the WLEP 2000: 1. Firstly, I am satisfied that the Proposed Development is consistent with any relevant general principles of development control in Pt 4 of the WLEP 2000 (cl 12(2)(a)); 2. Secondly, I am satisfied that the Proposed Development will comply with development standard for the development set out in the Locality Statement for the locality in which the development will be carried out (cl 12(2)(b)). I will come back to setbacks in my consideration of Contention 2. 3. The third mandatory consideration is the most relevant as it is the subject of Contention 1. Clause 12(3) requires the consent authority to be satisfied that the Proposed Development is "consistent with" the DFC described in the relevant Locality Statement. I have set out my finding above at para 52.
5. Accordingly, the grant of development can be granted for the Proposed Development.

Does the Proposed Development have adequate side and front setbacks? (Contention 2)

1. In relation to the front setback, it is my opinion that the non-compliance is technical and is of no consequence. The experts agree that the Northern Beaches Council Waste Management Guidelines - Chapter 4 specify that the bin storage area must be located within 6.5m of the front boundary, such that it is not possible to satisfy the front boundary setback control (at [66], JER). I accept the evidence of Mr Lovell that the bin storage area within the front setback is a small structure, substantially the same as the approved bin storage area on the adjoining property, and specially located to comply with the Council's waste management requirements. I conclude that the bin storage within the front setback is an outcome required by Council's waste officers and I am satisfied that it will have minimal visual impact from public places. Apart from the bin storage, the front building setback is 20m and together with the existing hedge and the landscape plans, Contention 2(a) and (b) are resolved.
2. In relation to side and rear setbacks, Contention 2(c) and (d) provide that: "The WLEP 2000 C8 Locality Belrose North Locality Statement provides that the minimum side building setback is 10 metres and the rear and side setback areas are to be landscaped and free of any structures, carparking or site facilities other than driveways and fences. The proposed southern building does not comply with the required setbacks on either the west or east side: • On the east side the building setback is 9.25 metres. • On the west side the building setback is 6.06 metres." d) The non-compliance with the side setback requirements detrimentally affects the ability of the proposal to protect or enhance the natural landscape."
3. There is no agreement between the experts as to whether the side setbacks are appropriate, and I accept that the numerical non-compliances are minor.
4. The side setbacks were marked out and inspected on Site on the first day of the hearing. I accept that given the overall width of the Site at 28.745 m, it is impracticable to provide fully compliant 10m side boundary setbacks and maintain functional floorplates to the Proposed Development.
5. The purpose of the numerical side building control is to minimise adverse amenity impacts to neighbouring properties, overshadowing or view loss, and the ability to maintain an appropriate landscaped setting.
6. The Applicant submits that the Proposed Development has side setbacks which 'out-perform' the setbacks for the neighbouring approved boarding house , to be 5.36m to the west and 8.9m to the east. The Experts agree in the JER at pars 70 and 71, that the Proposed Development provides slightly larger side setbacks than the approved neighbouring boarding house and significantly larger side boundary setbacks than the approved child care centre.
7. The evidence of Mr Lovell is that there are no adverse impacts by the minor side setback breaches (JER at par 77) and there is no evidence or contentions to the contrary.
8. I conclude that the side setback non-compliance does not warrant refusal of the Proposed Development for the following reasons: 1. The side setbacks provided are adequate and do not have any adverse impacts on the amenity of any surrounding properties in terms of privacy, solar access and views; 2. There is no or negligible visual impact from public places; 3. The Landscape plan will enhance the natural landscape.

Does the Proposed Development achieve an acceptable level of internal amenity? (Contention 3)

1. It is not agreed between the experts as to whether the Proposed Development achieves an acceptable level of internal amenity for the future residents of the proposed boarding house.
2. The Applicant submits that this contention does not reference any applicable planning control and that the particulars of Contention 3 represent submissions of limited relevance to the provisions of s 4.15 of the EPA Act. The Applicant submits in written submission that "the amenity for future occupants within a bushland setting with adequate facilities and services will be acceptable and materially identical to the amenity afforded to the residents of the boarding house on 14 Wyatt Avenue in the form approved by the Land and Environment Court."
3. The Respondent does not address this contention in closing submissions.
4. The experts agree, and I accept, that there is no requirement for private cooking facilities to be provided within individual boarding house rooms (JER, par 90). The experts also agree that the recommendations contained within the acoustic assessment in relation to the use and management of the communal facilities are substantially the same as were approved in the boarding house at 14 Wyatt Avenue (at par 92) and finally, that the floor to ceiling heights recommended by the Apartment Design Guide (ADG) do not apply to a boarding house or the Proposed Development (par 93).
5. The particulars of Contention 3 relate primarily to cooking facilities (particulars (a) to (h)), with some concern as to accessibility and impacts of access throughout the Proposed Development in particulars (i) to (l).
6. It is relevant to note that since the drafting of the particulars of Contention 3, the acoustic report has been superseded. In revision 5 of the Acoustic Report prepared by Pulse White Noise Acoustics at page 22, there are no time limits for the cooking of food in internal communal areas.
7. In relation to accessibility, I note that former Contention 6(d) of the ASOFAC required the provision of a report prepared by a qualified Accessibility consultant and that that contention was resolved by the reliance of the Applicant on the Accessibility Performance Solution Report prepared by Accessibility Solutions dated 27 June 2022. In particular, the Applicant relies upon the performance based solution in that document, which concludes at pars 16-18: "16. Lower Building Access - As previously noted the Lower Building sited to the rear of the site is substantially lower by approximately 10 metres and due to the separation of the two buildings it is impractical to connect the two by complying ramps or lift. Therefore the primary accessibility features of equitable and convenient access from a front boundary to the principal building entry, accessible accommodation, accessible parking and accessible common amenities are provided in the upper building. 17. Notwithstanding the above the lower building does provide visitation by people who use a wheelchair by way of accessible parking with lift access to the lower portions of the split levels on the ground floor @RL169.67 and first floor @RL172.70 which includes access common amenities. There is also a unisex accessible toilet and shower within the basement that is available for visitors to this building. a. To satisfy the wayfinding requirements of clause D3.6 of the NCC 2019 Amdt 1 signage will be required at the site entry path to the lower building of alternate access by vehicle to the lower building for people who use a wheelchair. b. By comparison of the two buildings in my opinion there is no disadvantage for people who use a wheelchair by providing superior access to and within the upper building given the site conditions, and therefore satisfies to the degree necessary, the performance requirements DP1(a)(i)(ii) and (b) of the NCC 2019 Amdt 1."
8. The balance of the particulars were not pressed by the Respondent and are not supported by the evidence. Accordingly, I have formed the opinion that there will be an acceptable level of amenity for future residents of the Proposed Development.

Jurisdictional prerequisites

1. There are jurisdictional prerequisites that must be satisfied before the function of granting development consent can be exercised by the Court. The Applicant provides the Court with an aide memoir of an agreed statement as to the jurisdictional prerequisites explaining how the jurisdictional prerequisites have been satisfied and I now briefly summarise below.
2. The development application was submitted with the consent of the owners of the Site and filed with the Class 1 Application (Ex A). The notification of the Proposed Development was undertaken in accordance with the Respondent's notification policy and the matters raised in the written objections have been adequately considered, and addressed, by the Proposed Development as at the date of the hearing. I have taken into account the written and oral objections as required by s 4.15(1)(d) of the EPA Act. The amending documents have been lodged with the NSW Planning Portal on 8 July 2022.
3. The Proposed Development is not a "BASIX building" as defined in the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 because of the definition of a dwelling as defined in the Dictionary of the Environmental Planning and Assessment Regulation 2021, and the boarding house will accommodate more than 12 residents.
4. The Court, as consent authority is to consider whether the land is contaminated, and if the land is contaminated, be satisfied that the land is suitable either in its contaminated state or that the land will be remediated before the land is used for the proposed purpose (s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021). A Site Contamination Assessment dated July 2022 is included with the Class 1 Application and concludes that "Based on the findings of this SCA, site contamination risks are considered to be low and we consider the site can be made suitable for the proposed development with the implementation of a data gap closure investigation (outlined in section 8.2), which is to be completed following site demolition works." I am satisfied that the land is or will be suitable for the use of a boarding house.
5. As required by s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the Respondent notified Ausgrid of the Proposed Development and Ausgrid advised that it had no objection.
6. I have addressed the relevant clauses of the WLEP 2000 throughout the judgment and do not propose to repeat them.
7. The Respondent filed Proposed/Draft Conditions of Consent on 4 October 2022 which reflect the plans and documents relied on by the Applicant.
8. For the reasons detailed out in this judgment I conclude that the Proposed Development warrants the granting of consent because: 1. The Proposed Development is consistent with the DFC; 2. There are adequate setbacks; and 3. There will be an acceptable level of amenity for future residents.

Orders:

1. The Court orders: 1. The appeal is upheld. 2. Development application No. DA2021/1039 seeking development consent for demolition of existing structures and construction of boarding house development comprising two (2) buildings containing 55 boarding rooms, basement parking and ancillary development at 16 Wyatt Avenue, Belrose legally described as Lot 2566 in Deposited Plan 752038 is determined by granting consent to the application subject to the conditions in Annexure A.

Amendments 31 March 2023 - Amendment to include Annexure A to the judgment. 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: 31 March 2023