Pembroke Street Holding Company Pty Ltd v Ashfield Council

Background and the proposal 4The application was lodged with the Council on 21 April 2011 following a pre-lodgement meeting and a series of correspondence between the parties with regard to a number of issues that related to the design of the development. Those plans were notified by the Council and 24 submissions and a petition containing 48 signatures were received during the notification period. 5The matter originally commenced as a conciliation conference under Section 34 of the Land and Environment Court Act 1979, and leave was granted by the Court to rely on amended plans developed as part of that process however no agreement was reached and the matter is now before the Court for determination. 6Pembroke proposes to construct a new three-storey brick and tile building to be used as a 20-room boarding house accommodating up to a maximum of 30 lodgers. An Operational Plan of Management (POM), landscape plans and stormwater details accompany the application. 7The proposed building would be erected on a setback of between 4.235m and 4.78m to Pembroke Street which is behind the duplex building to the north and consistent with a four-storey development to the south of the site. Six boarding rooms and a communal living room with a floor area of 35.06 square metres are proposed on the ground floor with communal open space area adjacent to the common room at the rear of the site with an area of 98.24 square metres. Individual private open space areas are proposed to the north of rooms four and five with room four being allocated as the manager's residence. The first and second floors are identical and propose seven rooms on each level. 8Each room is to be fitted out to include laundry, bathroom and kitchen facilities. The upper floors include balcony spaces to the front facade. Further details of the proposed treatment of sliding doors off the living areas of the central, upper floor rooms were provided to the Court during the hearing, as it was not clear whether access to any balcony area was provided from those doors. The applicant proposes to provide balustrading immediately adjacent to those doors and awnings above with no external access from the rooms. It was indicated that, should the Court find the doors were unnecessary, they could be replaced with windows as an added safety consideration. One car parking space is provided in the north-eastern corner of site with four spaces for motorcycle parking adjacent to that area and the proposed entry to the building connecting to the foyer area, covered walkways and open stair well that lead to the upper floors of the proposed building.

The site and its context 9Number 8 Pembroke St is located on the western side of the roadway between Ormond Street and Liverpool Road. The site comprises two separate allotments in an L-shape with greater width at the front, has a frontage of 22.25 m and an area of approximately 755 square metres. A 2-storey brick residential building with tiled roof containing two apartments is currently erected on the site and is proposed to be demolished. Minimal vegetation is planted in the frontage of the site however there are a number of mature trees in the rear yard around the perimeter of the site. 10Development surrounding the site comprises a mix of buildings ranging from single dwelling houses to three and four storey residential flat buildings. Immediately to the north of the site is a multi-unit development comprising a newer, three storey duplex building fronting Pembroke Street and a single storey dwelling on the corner with Ormond Street. The duplexes incorporate a driveway and carport adjacent to each side boundary with a small courtyard to the rear. 11To the south of the site is a four storey residential flat building on the corner of Liverpool Road and Pembroke Street. Individual garaging for nine of those units is provided directly off Pembroke Street. 12Four storey residential flat buildings are also located to the north, south and west of the site and all contain ground level garaging with units above so that limited areas are provided on the site for landscaping. 13A single storey dwelling house and flat building are located directly opposite the site and two storey residential flat buildings are further along Pembroke Street in the section between Liverpool Road and Ormond Street. Ashfield Park is located in close proximity to the site at the northern corner of Pembroke and Ormond Streets.

The issues 14The Council says that the proposed development is not compatible with the character of the local area because of the length of the building, the minimal setbacks provided and its site coverage exceeding that within the immediate surrounding area and the locality generally. It also says that the design principles in SEPP65 in relation to scale, built form, density and landscape are not met and that these issues will result in unacceptable visual privacy impacts on adjoining properties. 15The parties agree that the proposed development meets all of the relevant development standards contained within SEPPARH however, the Council says that consent cannot be granted to the application due to the considerations required by clause 54A(3). This requires a consent authority to take into consideration whether the design of the development is compatible with the character or the local area and is a pre-condition to consent.

The planning controls 16The site is zoned 2(c) Residential under the provisions of Ashfield Local Environmental Plan 1985 (the LEP). Boarding houses are permitted with consent. The parties agree that under the provisions of clause 17 of the LEP, the maximum floor space ratio (FSR) applying to the site is 0.75:1. 17Ashfield Development Control Plan 2007 (the DCP) also applies to the development with particular parts relating to access and mobility; multi unit development in flat zones (Part C5); parking; public notification; boarding houses (Part C18); planning for less waste and the building design and sustainability matters being relevant considerations. 18Part C5 applies to all land zoned 2(c) and relevant objectives are to ensure development has a high standard of urban design and site landscaping and contributes to the established character and residential amenity of neighbourhoods, creates good living environments and does not cause loss of residential amenity for neighbours. 19The DCP includes objectives for density, building envelope, siting and solar access, privacy, landscaping, views and outlook and these and the associated controls are in dispute between the parties. Apart from FSR, height (3 levels and 9m) and landscaping/open space, there are no quantitative controls that apply to the application. The DCP requires a minimum of 50% of the site to be landscaped, at least 70% of which is soft landscaping. 29.75% of the site must be provided for deep planting. 20Part C18 provisions refer back to those controls in Part C5 relating to building height and setback, general appearance, effect on adjoining properties, open space, waste disposal that apply to flats. 21The site is within the area to which Sydney Regional Environmental Plan (Sydney Harbour Catchment) applies. There are no contentions in relation to the provisions of that plan. 22SEPPARH, as it applied at the date the application was lodged, is relevant to the application and the parties agree that the site is within a zone equivalent to the R4 zone. That Policy was amended on 20 May 2011 and, in accordance with the provisions of clause 54A, the application may be determined in accordance with the provisions of the Policy that applied at that time however, subclause (3) adds an additional matter and that states: The consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 23SEPPARH also contains a number of standards (clause 29) that cannot be used to refuse consent. These are building height, landscaped area, solar access, private open space, parking and accommodation size. Clause 30 lists a number of standards that must be satisfied before the consent authority can grant consent. 24The parties agree that the provisions of SEPPARH have primacy over those controls contained within the LEP and DCP, that the provisions of clause 29(1)(c)(i) of the policy provide for a FSR of 1.25:1 and that the FSR of the proposal is 1.09:1 so is less than the maximum allowed. 25State Environmental Planning Policy No. 55 - Remediation of Land is another planning instrument relevant to the application however, there are no contentions that have regard to the provisions of that policy and the council is satisfied that the site is suitable for residential use. 26Council contends that because the development proposes a building that comprises 3 or more storeys and contains more than four self-contained dwellings, SEPP65 is also applicable. The applicant opposed this position however submits that even if the policy was relevant the development meets all of its relevant principles and controls.

The evidence 27The hearing commenced on site, where evidence was heard from a number of objectors to the proposal, most of whom are residents of adjoining residential flat buildings. The view also included observation of the site from within and from the balcony of Unit 3, Nos. 11 to 13 Ormond St, Ashfield. The issues raised by the objectors were concerns with regard to the bulk and scale of the proposal, its proximity to side and rear boundaries, loss of outlook and light, noise, overlooking and privacy impacts and lack of on-site parking facilities which they say will increase the demand for on-street parking that is already difficult in the vicinity of the site. 28The view included a walk around in the vicinity of the site in order that the Court could gain an appreciation of the character of the local area. 29Expert town planning evidence was heard from Mr K Nash on behalf of the Council and Mr A Minto on behalf of the applicant. They agree that the front setback, scale, articulation and presentation of the 3-storey building to the street are satisfactory and compatible with the character of the local area. However, Mr Nash says that the length of the building into the site and its footprint is excessive and the rear boundary setback of 5.4-6m is less that the pattern of rear boundary setbacks of residential flat buildings in the immediate vicinity of the site. He recommends a rear boundary setback of 9m, which, he says would improve the outlook of adjoining properties, particularly those in the south-western corner of Nos. 11-13 Ormond Street and provide improved open space for use by lodgers as he maintains the area of the common room is insufficient to accommodate all residents, and can only accommodate a maximum of 20 persons at any one time, as detailed in the POM. He also says that the controls for the building separation in SEPP65 are not met and increased setbacks from the side boundaries are required to accord to those requirements and provide a 12m separation. 30Mr Nash contends that the absence of an adequate setback contributes to the visual bulk of the building when viewed from the adjoining residential buildings, compromises the quality of outlook and privacy of adjoining residents, does not provide an adequate area for deep soil landscaping so as to retain and reinforce mature vegetation or maximise building separation to provide a satisfactory level of visual and aural privacy. For those reasons he says that the development is not consistent with the character of the area. Mr Nash said that if the ground floor walkway and upper floor lobby areas were screened through the use of opaque glass and glass blocks used in the windows of the northern wall of the common room, his concerns in relation to the visual privacy between buildings to the south and from the common room would be resolved. The applicant agreed that this requirement could be incorporated as a condition of any consent issued however Mr Nash maintained a greater setback between the building and those to its north was also required. Prior to judgment being delivered in these proceedings, the applicant lodged further amended plans that addressed this issue. 31Mr Minto disagrees and says that the rear setback is consistent with the alignment of residential flat buildings to the immediate north and south and that the amount of landscaped area complies with that required under the council's DCP and exceeds that required for deepsoil planting and the amount of open space required under SEPPARH. The relevant controls for open space under SEPPARH require 20sqm, the DCP is 35sqm and the development provides a consolidated area to the rear of the site of 98sqm in addition to the two courtyard areas and perimeter planting around the site. Mr Minto contends that the objectives of the DCP, which require adequate provision of green space between adjoining properties, are met and that the restriction on the numbers of people in the communal area are imposed to address acoustic issues rather than a reflection of the actual capacity of the room. He says that because the rooms within the boarding house exceed the minimum areas required under SEPPARH the demand for use of the communal area may be less than if the rooms were smaller and that the increased size is consistent with the objectives contained in the DCP which encourage the design of buildings above basic minimum standards. 32With regard to the building separation, Mr Minto says that it is important to distinguish between habitable rooms/balconies and non-habitable rooms and therefore there is no requirement to increase the setbacks so as to comply with the SEPP65 provisions. He says that the development provides setbacks of between 10.79m and 14.265m between habitable rooms and where that separation is less than 12m, the windows within the development are highlight windows. He says that this is acceptable and consistent with the objective of the controls and also those contained within the council's DCP. In the case of separation between non-habitable rooms, setbacks exceed the recommended 6m separation, with the exception of the area between the front of the site and the adjoining duplex development to the north where the distance is 5.695m. 33Mr Nash says that the design principles 2, 3, 4 and 6 of SEPP65 are not met. 34Principle 2: Scale. That principle is as follows: Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning an design policies. New buildings will thereby contribute to the quality and identity of the area. 35It is Mr Nash's opinion that the size and shape of the site are constraints that the proposed development has not responded to and whilst he agrees that the scale and articulation of the building are appropriate to the street in the context of the existing development fronting Pembroke Street. He says the reduced width of the site towards the rear and inadequate side and rear setbacks has resulted in a building footprint and bulk unresponsive to the proximity and outlook of adjacent residential development. 36Mr Minto says that the proposal provides for a three storey residential flat style building within a zone that permits buildings of that height and that the majority of adjoining buildings have a height of 4 storeys and is therefore compatible with the streetscape. He notes that the proposal complies with the height and FSR controls required by SEPPARH and concludes the scale of the proposal is appropriate. 37Principle 3: Built Form. This states: Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 38Mr Nash says the development does not satisfy the principle in respect to its relationship to adjoining buildings to its side boundaries and rear, that the lack of adequate setbacks results in a building footprint which is excessive and, in the context of its 3 storeys in height, will result in it being visually dominant when viewed from adjoining properties with the consequence of loss of amenity and outlook. He says that the desired future character (DFC) of the neighbourhood is not met as reflected in the provisions of the DCP, particularly FSR. 39Mr Minto disagrees and says that the FSR, at 1.09:1 is well below the 1.25:1 permitted under SEPPARH, that the setbacks are appropriate and a function of the density and height controls contained within that policy. 40Principle 4: Density. This states: Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. 41Mr Nash says that, whilst acknowledging the FSR bonus provided for under SEPPARH allows additional floor space to encourage the provision of affordable housing and that he agrees that the bulk and sale of the proposal when viewed from the street is satisfactory, the view of the site from the side and rear are not and therefore the FSR, building footprint and lack of adequate side and rear setbacks all contribute to a built form that is not consistent with the DFC of the locality as envisaged under the DCP. 42Mr Minto concurs with the view that the bulk and scale of the proposal when viewed from the street is appropriate and says that the FSR as proposed would be at the maximum appropriate for the site, the density proposed is compliant with the requirements of SEPPARH and notes that, pursuant to clause 29, consent cannot be refused on a number of grounds, including density or scale. Clause 29, as it applies to the application states: Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted-the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register-the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager-one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if not more than: (i) one parking space is provided for each 10 boarding rooms or part thereof, and (ii) one parking space is provided for each person employed in connection with the development and who is a resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 43Principle 6: Landscape. This states: Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain. Landscape design builds on the existing site's natural and cultural features in responsible and creative ways. It enhances the development's natural environmental performance by co-ordinating water and soil management, solar access, micro-climate, tree canopy and habitat values. It contributes to the positive image and contextual fit of development through respect for streetscape and neighbourhood character, or desired future character. Landscape design should optimise useability, privacy and social opportunity, equitable access and respect for neighbour's amenity, and provide for practical establishment and long term management. 44Mr Nash says the proposal has inadequate landscaping in the front and rear setback areas and that because the front area is compromised by the presence of the motorcycle parking area those spaces should be provided behind the front building line so that the front area could be further landscaped for the benefit of improving the view from the public domain and streetscape. He says the rear building setback is inadequate to provide deep soil landscaped area capable of accommodating large trees and maximise natural site drainage. 45Mr Minto says that the council had deleted its contention in relation to landscaped area as a result of the changes made to the plans however says that the area is appropriate and notes that the landscaping of the site involves both the retention of the exiting trees around the perimeter of the site as well as the provision of new screening trees and shrubs. He says that the treatment of the front setback area is consistent with the adjacent and nearby properties and that overall, the proposal will make a positive contribution to the landscape character of the area. 46With regard to the public interest, the planners agree that the question of precedent is not a relevant consideration in these proceedings and that a merit assessment of the application must be undertaken in accordance with the provisions of s79C of the Environmental Planning and Assessment Act 1979 . Mr Nash cites the issues raised by the objectors to the application and acknowledges that the applicant has addressed a number of issues raised such as the retention of trees however has not addressed the issue of providing an accessible parking space on site. It was agreed during the hearing that such a requirement could be addressed by way of condition or through amended plans. Mr Nash contends that two parking spaces are currently available on the site and should be maintained whilst Mr Minto says that SEPPARH, as it applies to the application, does not require any new parking as part of the development. The further amended plans make provision for two spaces in a stacked configuration. 47Mr Minto says that the application is appropriate in its location, is compliant with the provisions of SEPPARH and that the amended plans satisfactorily address the concerns of the residents.

Conclusion and findings 48It is not in dispute that clause 54A(3) of SEPPARH is a mandatory consideration. This requires the Court to take into consideration whether the design of the development is compatible with the character of the local area. The parties agree that the local area is the whole of Pembroke Street between Liverpool Road and Ormond Street and the sites that share a boundary with the site. I generally concur with this view however I consider that it would not be confined by the bounding properties and extends further to the north and south within the area zoned 2(c) and include additional residential flat and dwelling development. 49Having defined the local area, it is then necessary to determine the character of that area. In this regard, the experts agree that the area is typified by a range of housing types varying from single storey detached dwellings to four storey walk-up residential flat buildings. The scale of these buildings varies considerably due to the range of lot sizes and all run down the site, described in the council's DCP as "carriage style" development. Site landscaping is limited to portions of the street setback areas and perimeter planting. Expansive concrete driveways and parking areas are characteristic of the majority of the residential flat buildings in the local area. 50The consideration required by clause 54A is limited to the design of the development and requires consideration of whether that design is compatible with the character of the local area. I consider that this requires an assessment of the physical aspects of the built form only and does not extent to the issue of the use or nature of the use of that built form. 51The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are: 22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?....... 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character........ 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials. 52I note Mr Nash and Mr Minto's agreement that the front setback, scale articulation and presentation of the 3 storey building to the street is satisfactory. Having regard to that fact, consideration of the evidence provided and having gained an understanding of the local area from the site view undertaken at the beginning of the hearing, I am of the opinion that the design of the development is compatible with the character of the area. I consider the building height is appropriate in terms of the streetscape as it is designed to transition between the different scale and form of those adjoining buildings. I do not agree with Mr Nash that the failure to accord to the pattern of side and rear setbacks of adjacent buildings means that the design of the development is not in character, it does not have to be the same however, importantly in this case, the setback and treatment of the front setback does accord to the established pattern and streetscape which is a much more relevant consideration on how the building is read from the public domain. I do not consider the side and rear setbacks as proposed are inconsistent with the character of the local area, particularly, as the range of lot sizes and siting of buildings within the vicinity of the site mean there is no established pattern. 53I am satisfied that the standards contained in clause 30 of SEPPARH and the objectives of the council's planning controls, where not inconsistent with those contained within the Policy, are met 54It is not necessary for me to determine whether SEPP65 applies to the application, as, based on the evidence before me, I am satisfied that the principles referred to by the council in its contentions are met and even if the policy does not apply to boarding houses, those principles to provide a good basis against which to measure the suitability of a proposed boarding house use. The building has been certified by its designer to satisfy those principles and I am satisfied that no further consideration of the matter is required. 55SEPPARH, consistent with the provisions contained within clause 8, will prevail in the event of any inconsistency with any other environmental planning instrument. By the nature of the floor space bonuses in clause 29(1)(c)(i), the density of development of a boarding house will be greater than that provided for in other forms of development that are permitted on the land. Provided that additional floor space is accommodated in an appropriately designed building that is compatible with the character of the local area, which, in this case I am satisfied is met, the issue of density is satisfactorily addressed. 56In regard to the scale and setbacks of the proposed building, I prefer the evidence of Mr Minto and agree that the development, whilst at its maximum, and with the inclusion of the additional ameliorative measures recommended by Mr Nash to address privacy concerns, is appropriate and satisfies the objectives of the council's DCP. 57When considering the issues raised by objectors to the application, it is important to note the primacy of the controls that are contained within SEPPARH over those in the council's LEP and DCP as it applies to other forms of development. There is no doubt that the aims of the Affordable Housing Policy are to provide an incentive to persons to provide accommodation of the type proposed and that the controls in that policy result in larger buildings than may be anticipated. I am satisfied that the development as designed is appropriate in its context and whilst it occupies an area currently enjoyed by adjacent residents, loss of this borrowed amenity is offset by the additional landscaping proposed. Importantly, a number of significant trees will be retained to provide screening. 58Having concluded that the development is consistent with the character of the local area and considering the evidence provided, I am satisfied that the merits of the application warrant the grant of consent and that the further amended plans reflect the recommendations of Mr Nash and discussions between the parties during the hearing to address the concerns of the council with regard to privacy impacts. 59The parties did not agree on a number of conditions that were proposed by the council in the event that the Court upheld the appeal. In particular, the council contended that the proposed POM did not provide sufficient detail to address any potential amenity impacts. The applicant has now submitted an amended POM which is generally acceptable but required further amendments, particularly to formatting. These have been carried out. I do not find it necessary to impose a minimum three month letting arrangement for boarders in this case. 60I also agree that it is appropriate to replace the proposed doors to the central, north facing balustrades where the balconies have been deleted with windows to protect the safety of occupants and to adopt Mr Nash's recommendations to provide privacy screens to the ground level accessway and upper floor lobby areas to the south of the building and the provision of glass blocks in the place of windows to the northern wall of the communal room. The latter recommendations have been incorporated into the further amended plans. 61Other conditions in dispute are in relation to the amount of infrastructure bond to be held by the council in the event of any damage to its infrastructure occurring during construction. As this bond is to cover the cost of replacing footpath, kerb and gutter, road and road shoulders, I consider the amount sought by the council of $22,000 is appropriate and that the applicant's amount of $6,000 would not be sufficient to cover the entire costs should major damage occur.

Orders 62The Orders of the Court are: (1)The appeal is upheld. (2)Development Application No. 10.2011.100, which proposes the demolition of an existing residential flat building and construction of a 20 room boarding house at No. 8 Pembroke Street, Ashfield, is approved subject to the conditions included in Annexure 'A'. (3)The exhibits, other than exhibits A, B and 1, are returned.

Sue Morris 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: 21 February 2012