Parker Logan Property Pty Ltd v City of Ryde Council

The statutory controls

1. The land is within zone B4 - Mixed Use under the Ryde Local Environmental Plan 2014 (RLEP) and residential flat buildings are permitted with consent. The site is not within a heritage area nor does it contain a heritage building. Therefore, for the purposes of the SEPP the site is within a prescribed zone. And, because it is within 50 m of a bus stop the site is also classified as being within an accessible area by virtue of Cl27 (1) of the SEPP. Those features mean that the proposed use is permissible.
2. Clause 29 (c) the SEPP provides for a maximum FSR for the proposal under the RLEP of 2:7.1 plus 20%. This results in an allowable floor space ratio for the site at 3.24:1 and the amended proposal is compliant with this control. The site also has a 19m maximum building height control under the RLEP. Again, the amended proposal complies. Furthermore, the parties and their experts accept that the current part 5 and part 6 storey proposal will be compatible with the existing and future heights established and envisaged under the RLEP.
3. Needless to say, the primary control for this development is the SEPP and there are a number of planning requirements that the application must address.
4. Clause 30A of the SEPP stipulates that a consent authority must take into consideration whether the design of the development is compatible with the character of the local area. This does not mean that the development is the same but rather that the development is harmonious.
5. Clause 29(2) (b) of the SEPP requires that the landscape treatment of the front setback area of the proposed development is to be compatible with the streetscape in which the building is located.
6. Ryde Development Control Plan 2014 (RDCP) Part 4.6 "Gladesville Town Centre and Victoria Road Corridor" prescribes setbacks for the site. In particular, s 3.1.5 (c) provides that buildings fronting Victoria Road may build to the side boundary for a depth of 20m from the frontage and .s2.3 of the RDCP provides: (a) All boarding house developments are to be designed to be compatible with the character of the local area. (f) Notwithstanding compliance with numerical standards under the SEPP and LEP, applicants must demonstrate that the bulk and relative mass of development is acceptable for the street and adjoining dwellings in terms of: Overshadowing and privacy Streetscape ( bulk and scale0 Building setbacks Landscape requirement.

Expert evidence

1. The parties have relied upon town planning evidence from George Karavanas (for the applicant) and Ben Tesoriero (for the Council) and urban design evidence from Rohan Dickerson (for the applicant) and Gabrielle Morrish (for the Council). These experts' single joint report is marked Exhibit C.
2. There was also traffic engineering evidence from Ramy Selim (for the applicant) and Danile Perse (for the Council). The traffic experts' joint report is Exhibit 5.

The remaining issues

1. Relevantly, all of the experts are satisfied with regard to the amended plans now before the Court.
2. The remaining issues are those agitated by the local objectors. They remain relevant because they form part of the public interest and thereby must be considered in my assessment of this application under s4.15 of the Environmental Planning and Assessment Act 1979 (EPA ACT). I will deal with their concerns shortly after I explain the evolution of the amended plans and their notification to the local objectors.

The amended plans (Exhibit H)

1. The plans, the subject of the appeal, are marked (Exhibit H). They replace the earlier plans substituted in the proceedings by the Registrar and referred to as the "November plans".
2. The most recent amendments are responsive to the recommendations of the experts, the objectors' concerns and the Council's contentions. And, although the Exhibit H plans were provided to the local objectors before the commencement of the hearing a number of them expressed a concern at the site view that they had not had sufficient time to fully appreciate the detail of the changes. In any event they elected to address the Court about their concerns with the development. The parties' agreed notes of the objectors' evidence onsite is marked Exhibit 8. The objectors who spoke were : Philip Howe 15 Pearson Street, Gladesville Stewart Parkin 4/2 Pearson Street, Gladesville Kim Munro 3/21-23 Pearson Street, Gladesville Maggie Holley 6 Pearson Street, Gladesville Warren Bell 18A Punt Road, Gladesville Dean Mitchelmore (solicitor) for the owner 128 Victoria Road, Gladesville Sandra Chapman Victoria Road, Gladesville

1. After taking that evidence, the hearing continued in Court based on the Exhibit H plans. However, the Council asked for an opportunity to formally notify the Exhibit H plans to the objectors in accordance with the City of Ryde Development Control Plan 2014 - Notification of Development Applications Part 2.1 policy. I decided that this was appropriate and adjourned the proceedings for that purpose.
2. In response to that notification, the Council received and tendered some further written emails/objections from some of the earlier submitters. These further submissions were marked Exhibit 7. They supplement the oral evidence received by the Court at the commencement of the onsite hearing (Exhibit 8), and, the other written submissions lodged with the Council included in the Council's bundle (Exhibit 1 Tab 11).

Summary of the amendments

1. A major difference between the Exhibit H plans and the earlier version is its more residential presentation to Pearson Street and its compliance with all relevant planning controls in respect of height, floor space ratio (FSR), setbacks, solar access and landscaping.
2. To achieve this more compatible outcome in Pearson Street the building has been flipped to present a blank party wall to the northern boundary and designed to incorporate the boarding rooms (with Juliette balconies) on the western Pearson Street façade. The rear pavilion (extension to Pearson Street) has been re-aligned/re-orientated in order to achieve a 6m setback towards the southern boundary, to align the development with the new development at 120-124 Victoria Road and, to provide the requested setback at the north-west corner of the site. The common area stair has been realigned in order to comply with the 4m setback required above the 4th floor.
3. To better address the character of Victoria Road the new design has introduced a 5th level setback (consistent with the RDCP) and a 2m setback at the curb beyond the Council verge.
4. There has also been a reduction in the number of boarding house rooms in the latest version of the plans down from 66 to 58, and this has allowed for the reconfiguration of the internal layout to improve internal articulation to rooms, and increase the solar access and cross ventilation within the boarding house
5. The car parking layout has also been revised to accommodate a waiting bay and an accessible car space, bicycles parking area and bin area. Mr Selim and Mr Pearse (the traffic experts) are now happy with the headroom clearance for the disabled spaces in the lower car park by the lowering of the basement. There is no longer any issue raised in respect of vehicle access and accommodation (Exhibit 4 at [11]).
6. Other inconsistencies in the plans, identified by Mr Karavanas, Mr Dickson, Mr Tesoriero and Ms Morrish have also been resolved by the submission of additional elevations and sections demonstrating compliance with the Victoria Road setback, footpath and planting landscape character requirements in Part 4.6 of the RDCP. The planners and urban designers raise no issue with the amended proposal and support a conditional approval of the amended application (Exhibit 3).

The objectors

1. Despite the changes the local objectors who spoke to the plans on the site and in some cases also responded to the further notification of the Exhibit H plans maintain their opposition to the boarding house on the site. They are concerned about traffic, acoustics and adverse impacts upon their existing amenity. They are concerned about the management of the development.
2. Collectively, they believe that the development is an overdevelopment of the site and that it will be incompatible with the low rise residential character of Pearson Street.

Consideration

1. I have considered the objectors' comprehensive oral and written submissions in the context of what I observed at the view - including my observations of the two very different local characters and streetscapes of Pearson Street and Victoria Road. The term "compatible with the local area " as used in the SEPP and s2.3 of Part 3.5 of the RDCP does not mean the same but harmonious. That is, the bulk and relative mass of the development needs to be acceptable in the streetscape in terms of overshadowing and privacy, bulk and scale, building setbacks and landscape requirements. While the objectors have raised valid concerns they must be weighed against all of the evidence including the expert evidence now before the Court. The parties' experts are in this case supportive of the amended proposal. Relevantly, they specifically told me that in forming that view they had considered all of the oral and written concerns raised by the objectors and in their expert conclusion believe that their concerns have been satisfactorily addressed.
2. According to the urban design experts Ms Morrish and Mr Dickson, the latest amendments "…offer a vastly improved design which provides appropriate amenity for the future occupants of the building and is compatible with the characters of the local area on both the Victoria Road and Pearson Street facades". In their oral evidence to the Court they agreed that the reconfiguration of the design to provide a greater landscape setback to Pearson Street, and a more articulated built form to that frontage made for a better integration of the proposal with the residential character opposite. They approved of the NCC compliant reduction of the party wall on the southern boundary, stating that it provided a greater setback to that boundary and the street. They also support the inclusion of the Juliette balconies on that western façade on two bases. First, they reinforce the residential character of the Pearson Street streetscape and secondly provided better ventilation and amenity for the residents of the proposal. The boarding rooms now comply with the standards set out in clls 29 and 30 of the SEPP. A live-in manger will reside onsite and operate the boarding house in accord with a plan of management. They do not accept as reasonable the objectors' concerns that the use will generate unacceptable amenity impacts. Nor do they believe that the proposed Juliette balconies will generate unacceptable privacy or acoustic amenity for the residents adjoining the site or living opposite on the other side of Pearson Street some 20m away.
3. In their view, the visual catchment in Pearson Street (which incorporates the site) is characterised by a mix of low and medium and high density development comprising of some single dwellings and 3 /4 storey walk up residential flat buildings and shop top housing up to 19 and 22m high. In their expert assessment the design of the proposal will be similar to more recent residential and shop top housing development along Victoria Road in the nearby locality with a rear frontage to Pearson Street. The future character is guided by the B4 objectives and the development standard of the RLEP 2014. In this regard, the B4 zone may achieve a floor space ratio of 2.7:1 (notwithstanding bonus floor space ratios available under the SEPP) and a building height of 19m. The proposal is compliant with the planning controls. The design to Pearson Street is respectful of the residential development opposite and with the proposed landscaping and setback will be in their opinion consistent in visual character.
4. The urban designers are also supportive of the new perimeter landscaping on the communal area on the roof of the development. Whilst improving the amenity of this communal space Ms Morrish was careful to confirm, based on her analysis of sight lines from and into this space, that there would be no increased opportunity for overlooking from the roof into the adjoining northern apartments or their private open space. A concern about the interrelationship between this area on the roof and the apartments to the south had earlier been raised by Sandra Chapman, a resident of that apartment block whose apartment the Court was invited to inspect.
5. The development's interrelationship with the property to the north was a specific matter raised by Dean Michelmore, the solicitor who gave oral evidence on behalf of the owner of the underdeveloped site at 128 Victoria Road, Gladesville. To address this concern the design has flipped the living areas and balconies of the development have been reorientated away from the northern boundary toward Pearson Street in order to provide a solid interface (wall) in that area. The Council's planner, Mr Tesoriero, is satisfied with this design change. He believes that this gives a more domestic feel to the appearance of the development in Pearson Street and picks up the existing mix of residential flat buildings in that street. He is also satisfied with the introduction a number of changes to the internal layout of the units to improve cross ventilation, solar access and internal circulation.
6. With respect to the concerns raised by the objectors about parking and increased traffic it is the case that the development complies with all relevant parking requirements under CL29 (a) of the SEPP which states "a consent authority must not refuse consent to development that complies with numerical requirements." Victoria Road is a classified road that provides ready access to public transport and no doubt some of the residents will take advantage of this. Based on the expert evidence before me there is no planning basis to refuse this application on grounds of traffic or parking.
7. A few objectors stated that they were concerned about the demographic of the future occupants of the boarding house. The applicant has agreed to the imposition of a plan of management as a condition of consent. The primary purpose of the plan of management (introduced as a condition of consent) is to ensure that neighbours' amenity is reasonably maintained by the operation of the premises as boarding house. The plan of management before the Court in this appeal is well drafted and appropriately addresses the check list of matters outlined in Renaldo Plus 3 Pty limited v Hurstville City Council [2005] NSWLEC 315 at [54] and its imposition as a condition of consent means that its terms will be enforceable, if necessary.
8. While I understand the fears and concerns expressed by some of the local objectors about the operation of the boarding house in their street there is no objective evidence to suggest that the development will not fit into the existing characters of both Pearson Street and Victoria Road. Section 79C (b) (now s4.15) requires a consideration of the social impacts of development including benefits and s79C (e) (now s4.15) requires a consideration of the public interest. This development, on the evidence provides a social benefit because it offers affordable housing in Gladesville close to public transport in particular, (single person) accommodation. In my assessment of all the evidence, I am satisfied that the proposed conditions will assist in maintaining the amenity of the locality. The Court has repeatedly rejected fear and concern without a rational and justified foundation as a ground of refusing a development under s79C (1) (now s4.15) of the EPA Act; New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Lloyd J at [61] - [62]. This case is no different.

Time for compliance with the deferred commencement conditions

1. The applicant has asked that the time for compliance with the deferred commencement conditions referred to in Part 1 condition 2B be extended from 12 to 18 months. However, there is no satisfactory reason for the variation of the Council's standard condition in this regard therefore I decline to extend the period. It remains 12 months as stated in Exhibit 10.

Conclusion

1. After careful consideration of the agreed expert evidence summarised above, and based on my observations of site and its locality - appreciating the different streetscapes and characters of Pearson Street and Victoria Road - I am of the opinion that the development will be compatible with the character of the two distinct local areas. Furthermore, I accept the experts' agreed position that the amenity impacts anticipated by the local residents will be addressed by the conditions of consent which include a plan of management and a live in manager. An expressed objective of the B4 zone is "to provide a mixture of compatible land uses". In this case the use is on the evidence permissible and compliant with the planning controls and the SEPP and in my view is compatible.

Orders

1. Accordingly, the Court orders; 1. The appeal is upheld. 2. Development consent is granted to DA 2017/0101 for the demolition of existing buildings and the construction of a development containing 57 rooms to be used as a boarding house plus one room to be used for the onsite manager and two levels of basement parking at 126 Victoria Road Gladesville in accordance with the conditions of consent in Annexure A. 3. The Exhibits are returned except for Exhibits H, 2 and 10.

Susan Dixon Senior Commissioner of the Land & Environment Court Annexure A (240 KB, pdf)

Amendments 19 March 2018 - Counsel listed. 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: 19 March 2018