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.