Pinchgut Pty Ltd v Central Coast Council

Issues

1. Despite the amendments and provision of additional information, the Respondent maintains the development application warrants refusal on the basis that: 1. Firstly, by seeking consent for a total of 15 boarding rooms, the development application fails to comply with the 12 room development standard for low density residential land at cl 30AA of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The provision states: A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms. 1. Secondly, given the noncompliance with the standard the development application relies on a variation pursuant to cl 4.6 of the Wyong Local Environmental Plan 2013 (LEP 2013) to vary the standard to permit 15 boarding rooms. The Respondent argues the variation request is not well founded and does not meet the tests of cl 4.6 of LEP 2013. 2. Finally, that the site is constrained by easements which conflict with the proposed development and the site is unsuitable for the development: s 4.15(1)(c) of the EPA Act.

The site

1. The site was historically owned by NSW Roads and Maritime Services and had previously been identified as a new road corridor connecting Burns Road to Cambridge Circle. The land was sold in 2018.
2. The site is currently vacant and has an overall area of 2247.3m². The site has dual frontage to Burns Road and Cambridge Circle. The frontage to Burns Road is 24.925m and 27.785m to Cambridge Circle.
3. The site is constrained by an a 30m wide electricity easement which contains Ausgrid infrastructure and diagonally transects the site.
4. Further, the site is subject to rights of carriage imposed by virtue if the s 88B instrument attached to DP 875531, which specifies that lots 17, 18, 19 in DP 706878 are burdened by:

• A right of carriageway of variable width affecting the whole of the land. These rights of carriageway benefit Lots 10 and 11 in DP 875531; and
• A right of carriageway of variable width benefiting SP425547.

1. These rights reflect the historic subdivision pattern which has resulted in a number of adjoining properties to the west of the site relying on the subject site for primary vehicular access and frontage. Three properties, 11 Burns Road, 11A Burns Road and 13-15 Burns Road rely on the site for access to Burns Road. All three properties are single storey residential.
2. The site shares boundaries with a number of properties. To the west, the site shares a boundary with: 1. Lot 11 DP 875531 (11 Burns Road); 2. Lot 10 DP 875531 (11A Burns Road); 3. SP 42547 (13-15 Burns Road); and 4. Lot 1 DP 1145718 (72 Pacific Highway).
3. To the east, the site shares a boundary with land identified as: 1. Lot 141 DP 1078481 (27 Burns Road); 2. Lot 142 DP 1078481 (25 Burns Road); 3. Lot 143 DP 1078481 (23 Burns Road); 4. Lot 144 DP 1078481 (21 Burns Road); and 5. Lot 22 DP 31313 (44 Cambridge Circle).
4. Opposite the site on Burns Road is a hardware and building supplies store and a heritage listed cottage at 2 Burns Road. To the east and south of the site are single storey dwellings.
5. The subject site is highlighted in the following extract:
6. The extent and location of the easement for electricity is highlighted (heavy dashed line) in the following extract of the survey:

Public submissions

1. The development application was notified by the Respondent in accordance with the provisions of the Wyong Development Control Plan 2013. The original development application attracted 44 submissions, with the later review application receiving 28 submissions. The issues raised by submissions can be summarised as: 1. The development will result in a negative impact to property prices for adjoining owners. 2. The development will result in overshadowing of adjoining properties. 3. The site is not in an "accessible area" as required by cl 27 of SEPP ARH. 4. The number of boarding rooms proposed exceeds the 12 room maximum control at cl 30AA of SEPP ARH. 5. The development application has had no regard to the local heritage item at 2 Burns Road, Ourimbah. 6. The proposed development proposes an easement or right of carriageway of insufficient width to service the adjoining properties to the west of the site. 7. No provision has been made within the development for pedestrian access to Burns Road. 8. The proposed development will impede the existing rights of carriage way and easements on the site. 9. The development does not comply with the objectives of the R2 Low Density Residential zone. 10. The development is not compatible with the character of the locality. 11. The development proposes insufficient setbacks to accommodate adequate landscaping. 12. The development will result in privacy impacts from overlooking to adjoining properties to the west of the subject site. 13. The development is unsympathetic to the character of the locality and is visually unpleasant. 14. Concerns about the capacity of infrastructure to service the development as well as the management of flooding and stormwater ingress to the middle of the subject site. 15. The practicality of waste collection for the properties at 11, 11A, 13-15, 21, 23, and 25 Burns Road after the proposed development is constructed has not been considered. 16. The subject site is a constrained site. The proposed development is not suitable for the land. 17. The applicant has not reached agreement with the owners of 11, 11A or 13-15 Burns Road to amend the right of carriageway which provides vehicular access to their land. The development cannot proceed without changes to the existing rights of carriageway. 18. The proposed driveway does not meet the requirements of Ausgrid for a 5m wide access. 19. Query whether the development is safe given its proximity to the overhead power lines. 20. The side setbacks proposed do not comply with the development controls. 21. The plan of management is inadequate and does not address community concerns with the development or assist in the mitigation of the impacts.

Expert evidence

1. The Court was assisted by town planning experts, Mr Eugene Sarich for the Applicant and Ms Janice Buteux-Wheeler for the Respondent. Their joint town planning report was tendered as Exhibit 4 in the proceedings. In addition to their joint report, the planning experts were called for cross examination.

Planning Controls

1. An updated BASIX Certificate has been provided to support the amended development application; this satisfies the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
2. Prior to the grant of consent to the development application I must consider if the land is contaminated and, if so, whether it is suitable or able to be made suitable for use as a boarding house. I accept the agreed position of the parties that the site has no history of any use that would indicate that the site has a risk of contamination. Further, I am satisfied that the development application does not involve a change of use on land that is listed in cl 7(4) of State Environmental Planning Policy No 55 - Remediation of Land.
3. The proposed development is development that is within or immediately adjacent to an easement for electricity purposes as defined by State Environmental Planning Policy (Infrastructure) 2007 at cl 45(1). As required by the instrument the development application was referred to Ausgrid who provided conditions to be imposed on any consent issued for the proposed development. Relevantly one of the proposed conditions relates to access. It is reproduced below: "… 4. Ausgrid requires 24 hour access along the easement for plant and personnel. For the purpose of exercising its rights under the easement, Ausgrid may cut fences and/or walls and install gates in them. Where the easements on a site do not provide practical access to all of Ausgrid's infrastructure, a suitable right of access at least 5m wide must be provided to each asset. …" (Exhibit 1)
4. The amended development application proposes a driveway with a minimum width of 3m, inconsistent with this condition.
5. In his closing submissions Mr McKee argued that the provisions of SEPP ARH do not apply to the development application and a pathway to approval exists solely reliant on the permissibility of boarding house development in the R2 Low Density Residential zone in LEP 2013. I accept and prefer the submissions of Mr Farrell that SEPP ARH and in particular Part 2 Division 3 apply to the development for the following reasons:

• Pursuant to cl 4.15(1)(a)(ii) of the EPA Act in determining a development application I am required to consider the provisions of any environmental planning instrument relevant to the subject of the development application;
• Pursuant to cl 26(b) of SEPP ARH, Part 2 Division 3 of SEPP ARH applies to the site as it is zoned R2 Low Density Residential;
• Clause 27(1) of SEPP ARH provides that "this Division applies to development, on land to which this Division applies, for the purposes of boarding houses." Therefore Part 3 Division 3 of SEPP ARH applies to the proposed development being a boarding house; and
• Pursuant to cl 27(2) of SEPP ARH, cll 29, 30 and 30A do not apply as whilst the site is with the Greater Sydney Region it is not in an accessible area.

1. I am satisfied that SEPP ARH is a relevant environmental planning instrument for the assessment and determination of the development application.
2. The provisions at cl 30A of the SEPP ARH requires consideration of the local character: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
3. Clause 30AA of SEPP ARH states: 30AA Boarding houses in Zone R2 Low Density Residential A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
4. The effect of cl 30AA of SEPP ARH is to limit boarding house development in an R2 Low Density Residential zone to a maximum of 12 boarding rooms. Clause 30AA was inserted into SEPP ARH and came into force on 28 February 2019. The relevant savings and transition provisions are at cl 54C of SEPP ARH: 54C Savings and transitional provisions - 2019 amendment (1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement. (2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced. (3) In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019.
5. As the development application was lodged on 22 October 2019, the development standard in cl 30AA of SEPP ARH applies to the development application. The parties disagree whether the standard of 12 boarding rooms is breached by the proposed development. This is discussed further commencing at [31].
6. The site is zoned R2 Low Density Residential under LEP 2013. Boarding houses are permissible with consent in the zone. The objectives of the R2 Low Density Residential zone are reproduced below: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain and enhance the residential amenity and character of the surrounding area. • To provide a residential character commensurate with a low-density residential environment.
7. In determining the development application, I must have regard to the objectives for development in the zone: cl 2.3(2) in LEP 2013.
8. The Respondent argues that the development standard in cl 30AA of SEPP ARH is breached by the development application. If so the development application relies on the provisions of cl 4.6 of LEP 2013 to vary the standard. Clause 4.6 states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. …

Does the development application comply with cl 30AA of SEPP ARH?

1. As their primary position the Applicant argues that the standard in cl 30AA of SEPP ARH, which provides a limit of 12 boarding rooms on land in the R2 Low Density Residential zone, is met by the proposed development. Mr McKee submits that the clause should be interpreted so that each lot of land is capable of containing 12 boarding rooms. In other words, the development standard is referable to an allotment of land. If this is accepted then, as Building 1 is located on Lot 18 DP 706878 and Building 2 on Lot 20 DP 706878, the standard is met by the development application as neither lot contains development exceeding the 12 room standard.
2. As their secondary position the Applicant relies on the Court upholding a request to vary the development standard pursuant to cl 4.6 of LEP 2013. The consideration of the Applicant's written request pursuant to cl 4.6 of LEP 2013 commences at [39].
3. In the alternative the Respondent argues that the refence in cl 30AA of SEPP ARH to 'the land' is a reference to the totality of the land which is the subject of the development application, in this case all of the four lots which form the subject site. Mr Farrell emphasises that the development application before the Court 'is a single development application in respect of lots 17 DP 706878, Lot 18 DP 706878, Lot 19 DP 706878, Lot 20 DP 706878 collectively.' Further, Mr Farrell notes that SEPP ARH makes no dispensation in the drafting of cl 30AA for two boarding houses located on separate lots. (Applicant's written submissions dated 5 August 2021)
4. Irrespective of their differing views on the interpretation of the provision, both the Applicant and Respondent agree that 12 boarding room restriction in cl 30AA of SEPP ARH is a development standard that is amenable to variation under cl 4.6 of LEP 2013.

Findings

1. After considering the submissions of the parties and the wording and context of cl 30AA of SEPP ARH I find as follows:

• The proposed development is a single development application that has been made in respect of Lots 17, 18, 19 and 20 DP 706878. Applying the reasoning of Preston CJ in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [90-91, 93] the 'land' on which the development (a boarding house) is proposed to be carried out is these four lots.
• That the proposed development is intended to be operated as one boarding house use, albeit over two buildings. This conclusion is reinforced by the development application's reliance on a single communal room and managers room, both located in Building 1.
• I accept that it may be open to the Applicant to apply for consent for a boarding house development solely on Lot 18 and separately, under a different development application, for consent for a boarding house development solely on Lot 20. If these applications contained development which mirrored that proposed Building 1 and 2 respectively, such separate development applications would comply with the 12 boarding room restriction. However, that is not the development application sought by the Applicant: Baron Corporation Pty Ltd v Council of City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [89]. However, such applications would not overcome the reliance on centralised communal facilities in Building 1.

1. I prefer and accept the submission of the Respondent that the refence in cl 30AA of SEPP ARH to 'the land' is a reference to the totality of the land which is the subject of the development application, in this case all of the four lots which form the subject site. I find that the proposed development incorporates a total of 15 boarding rooms, which does not comply with cl 30AA of SEPP ARH. Therefore, the Applicant relies on the provisions of cl 4.6 of LEP 2013 to vary the standard. The satisfaction of the preconditions in cl 4.6 of LEP 2013 is therefore a precondition to consent.
2. I note my finding regarding the application of the development standard in cl 30AA of SEPP ARH to the totality of the land subject of the development application is consistent with the reasoning of Commissioner Horton in Penshurst Laycock Pty Ltd v Georges River Council [2021] NSWLEC 1382. In that matter the Commissioner did not accept the submission of the Respondent that three separate development applications lodged on adjoining lots breached the development standard, but held that the standard at cl 30AA of SEPP ARH applied to the land the subject of each application, except where the operation of the boarding house traversed two lots.

Should the Applicants request to vary the standard be upheld?

1. Clause 4.6 of LEP 2013 contains a precondition to consent at both subcll (3) and (4) as follows: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained.
2. It is clear from a reading of cl 4.6 of LEP 2013 that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the standard at cl 30AA of SEPP ARH, which limits boarding room numbers to 12 in the R2 Low Density Residential zone, by demonstrating that the breaches of the development standard are justified.
3. In Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7, Preston CJ outlines that Commissioners in exercising the functions of the consent authority on appeal have power to grant consent to developments that contravene a development standard (cl 4.6(2) of LEP 2013). However, the consent authority cannot grant such a development consent unless they: 1. have considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3) of LEP 2013); 2. are satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), reproduced at (1) (cl 4.6(4)(a)(i) of LEP 2013); 3. are satisfied that the proposed development will be in the public interest firstly because it is consistent with the objectives of the particular standard and secondly because it is consistent with the objectives of the zone (cl 4.6(4)(a)(ii) of LEP 2013); and 4. are satisfied that the concurrence of the Planning Secretary has been obtained.
4. I have applied these tests to the current application in the following.

Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

1. The Applicant relies on a written request to vary the development standard at cl 30AA of SEPP ARH prepared by Urbanesque Planning dated 28 July 2021 (the written request). In oral evidence Mr Sarich, the Applicant's expert town planner accepted that the written request was not prepared by reference to the amended plans before the Court, Issue H of the architectural plans. Rather, he accepts that it was prepared in reference to the Issue G set of architectural plans.
2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe).
3. Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
4. In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).
5. The written request relies on Wehbe test 1. Namely in seeking to vary the standard at cl 30AA of SEPP ARH the written request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non‐compliance.
6. Clause 30AA of SEPP ARH does not have defined objectives articulated in the instrument. The written request relies on the Explanation of Intended Effect (EIE) prepared by the NSW Department of Planning and Environment in November 2018 to derive the objectives of the standard. In particular the written request argues that the objectives of the standard can be derived from the following extract of the EIE: "The intention of the proposed amendment is to ensure that the built form of boarding house development in the R2 [Low Density Residential] zone is compatible with the built form of other development in the local area. [objective 1] The proposed introduction of a maximum room number for boarding houses is considered to assist in ensuring that amenity impacts of boarding houses on adjoining and nearby properties, such as overlooking, overshadowing and car parking impacts, are able to be better managed. [objective 2]" (Exhibit D)
7. Both Mr Farrell and Mr McKee note that the Court accepted a similar approach to the derivation of the objectives of the standard from the EIE in GM Architects Pty Ltd v Strathfield Council [2020] NSWLEC 1522 ('GM Architects') at [99]. In GM Architects the Court defined the objectives of cl 30AA of SEPP ARH as: '"- to ensure that the built form of boarding house development in the R2 [Low Density Residential] zone is compatible with the built form of other development on the local area, - to assist in ensuring that amenity impacts of boarding house development on adjoining land and nearby properties, such as overlooking, overshadowing and car parking impacts, are able to be better managed."
8. I accept that the preceding objectives are appropriate to be adopted as the objectives of the standard at cl 30AA of SEPP ARH for the purposes of establishing that the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1).
9. The written request states that the objectives of the standard are achieved by the proposed development in the following ways:

• Firstly, the size of the subject site and its low density: "The site has special characteristics including two street frontages, a large overall area and a large area unaffected by an electricity easement that cannot be further developed with buildings. Even with maximised building footprints, the development as a whole is of a very low density of 0.26:1 and may readily support 15 rooms over two buildings. This site density is comparable with the intensity of established development in the locality." (Exhibit D)
• Secondly, the compatibility of the built form with the character of the local area: "The number of rooms in a boarding house is immaterial if the resulting built form is compatible with the built form of other development in the area. … The visual catchment, which incorporates the subject site is characterised by an eclectic mix of one and two storey single dwellings, multi dwelling housing aDnd commercial uses. The building and land uses in the visual catchment incorporate a variety of architectural styles ranging from post war austerity to modern dwellings and multi dwelling housing to warehouse building typology opposite. … For the above reasons, the locality is not as sensitive to change as might be the case in a more homogenous built environment and compatibility is more readily achieved. … In considering the design approach for the boarding house, it was considered appropriate to implement a more traditional built form and materiality to each street frontage. The facades are more analogous to dwelling houses when viewed from the street and incorporate face brick, render, elements of sheet cladding and pitched tiled roofs. The external expression to the streetscape is appropriate in terms of architecture, height, bulk and scale. The resulting building are considered to be designed appropriately and will sit comfortably in their settings in Burns Road and Cambridge Circuit, remembering the test is one of compatibility not sameness. A building can look different and be compatible with the general local context. In fact, the development will make a better contribution to both streetscapes than presently exists where the 'gap' in both streets is pronounced and analogous to a 'missing tooth'." (Exhibit D)
• Thirdly, that the development provides compliant parking and satisfactory solar access and privacy impacts on adjoining properties. "The amenity impacts of the development on adjoining and nearby properties, such as overlooking, overshadowing and carparking impacts are controlled by appropriate design and landscaping, thereby achieving the objectives of the control. This includes the dilution of the development across two buildings. … The development is designed with the intention of minimising impact upon the amenity of adjoining residents as well as the amenity of the future residents of the development." (Exhibit D)

1. Mr Sarich, the author of the written request to vary the standard at cl 30AA of SEPP ARH, argues on the preceding grounds that the development meets the objectives of the standard notwithstanding the variation and therefore concludes that compliance with the standard is unreasonable in the circumstances of the case.
2. The written request confirms it does not rely on the remaining Wehbe tests, or other grounds, to establish compliance with the development standard is unreasonable or unnecessary.
3. Taking the first of the derived objectives focused on the compatibility of the proposed development with the built form of other development on the local area Ms Buteux- Wheeler argues that:

• the local area is characterised by 'low density residential development consisting of single storey dwellings and two storey townhouse developments within landscaped garden settings and some single storey large floor plate non-residential uses'. Acknowledging this character of the local area Ms Buteux-Wheeler argued in oral evidence that the wall length, wall height, lack of setbacks, predominance of hardstand, and the lack of landscaped setbacks make the proposed development of a character which is incongruent with the locality. (Exhibit 4)
• whilst overall the proposed development does incorporate large areas of landscaping, the landscaping is not located in areas of 'sensitivity' such as in the western setback which has a predominance of hard stand.
• "The resultant amenity outcomes between the neighbours and the development prevent [it] achieving a character that is congruent with a low density residential character". (Exhibit 4)

1. Ms Buteux-Wheeler concludes that the written request does not establish that the first objective of the standard: 'to ensure that the built form of boarding house development in the R2 [Low Density Residential] zone is compatible with the built form of other development in the local area' is met by the proposed development.
2. Secondly Ms Buteux-Wheeler argues that the written request does not adequately demonstrate that objective 2 of the derived objectives, directed to the amenity impacts of the proposed development and their appropriate management, is met. Her reasoning is that: "a) The proposal includes eight boarding rooms and the communal room that have an orientation towards 11 and 11A Burns Road. This results in an unacceptable privacy amenity outcome from the boarding rooms onto neighbouring properties that has not been adequately addressed in the proposal. … b) the plan of management does not adequately address the use of the premises to manage amenity impacts to neighbouring properties." (Exhibit 4)
3. In response to Mr Sarich's argument that the amenity impacts are 'diluted' due to the size of the subject site, Ms Buteux-Wheeler argues: "(t)he size of the site is able to mitigate some amenity impacts to some neighbouring properties through the orientation of adjoining dwellings, the existing development pattern and the non-buildable areas that are the result of the transmission easement. However, the transmission easement results in an intensification of the development on the remainder of the site that is more than would ordinarily be found in the existing or future surrounding character and this results in some impacts to neighbours, particularly 11 and 11A." (Exhibit 4)
4. Further, Ms Buteux-Wheeler argues that amenity impacts arise for the adjoining neighbours from the reduced setback to Building 1 and the limited landscaping proposed. She states: "I agree that the site includes large areas of landscaping, however some areas of sensitivity do not benefit from this landscaping. The treatment of the western setback of the development is dominated by the site access driveway. The limited landscaped setbacks to the western neighbour are insufficient to ameliorate the impacts of the development that result from the relationship of the development (the number of windows to boarding rooms and the common room with an orientation to the west) to the development pattern of neighbouring properties. The resulting amenity outcomes between neighbours and the development prevent [it] achieving a character that is congruent with a low density residential character." (Exhibit 4)
5. I note that the joint report was undertaken on Revision G of the architectural plans. As part of the joint report Ms Buteux-Wheeler provides a number of recommendations in regard to changes that could be made to the development application (in particular Building 1) to reduce the amenity impacts. These included: 1. Relocation of a window in boarding room 17 to the southern elevation as a highlight window, away from the western elevation which overlooks the adjoining properties. The increase in size of a proposed window on the eastern elevation of boarding room 17. 2. Remove windows 11 and 12 in the communal from the western façade of Building 1. Add a window on the eastern elevation of Building 1 to serve the communal room. 3. The need for privacy treatment to windows 13, 14, 15, 16 and 17 due to the limited width provided for landscaping and the proximity of the windows to adjoining properties. (Exhibit 4)

Submissions

1. Mr McKee argues the Court should prefer the evidence of Mr Sarich and conclude that written request establishes the first test under cl 4.6, that the objectives of the control are met notwithstanding the variation, thereby demonstrating that compliance with the development standard unreasonable or unnecessary.
2. In relation to consistency with the first derived objective of cl 30AA of SEPP ARH, Mr McKee's reasoning and submissions can be summarised as follows: 1. That the written request establishes that the site has special characteristics of two street frontages and a large area of the site being constrained by an electricity easement. 2. That the proposed development is of a very low density, with an FSR of 0.26:1, which is comparable to the low density established development in the locality. 3. That the written request does identify and establish the essential elements of the character of the local area. In support of this conclusion Mr McKee references the extracts from the written request reproduced at [51]. He concludes: "34. This analysis establishes the nearby uses, heights of buildings, densities and built forms that create the character of the local area. The consent authority would be satisfied that the written request satisfies the requirement to demonstrate that the application is consistent with the first objective of the development standard and justifies contravening of the development standard as compliance with the development standard is unreasonable or unnecessary in the circumstances of this case." (Applicant's written submissions, 5 August 2021)
3. In relation to second derived objective of cl 30AA of SEPP ARH Mr McKee makes the following submissions: 1. That the written request details the way that the proposed development addresses the provision of parking, landscaping and communal uses appropriate to the boarding house use. 2. That the proposal is compliant with the relevant height control, floor space ratio, parking and provides generous setbacks to adjoining properties. 3. That the boarding house will include a live-in manager and a comprehensive plan of management to ensure that the adjoining and nearby property owners are not negatively impacted from the proposed development. 4. That the large size of the allotment, low density of the development and the placement of the two built forms adjacent the two street frontages results in "a sensible and appropriate residential character in the local area". (Applicant's written submissions, 5 August 2021)
4. Mr Farrell commenced his submissions by summarising what he sees as the errors, omissions or issues with the written request as a whole. Namely: "a. by Mr Sarich's own admission, the Clause 4.6 Request was not prepared by reference to the latest set of the plans (revision H). The document was prepared by reference to revision G of the plans which are no longer relied upon [by the Applicant]. This is important because the written request is required to demonstrate it is unreasonable and unnecessary to comply with the control; b. no separate section of the document dealt with consistency with the objectives of the control for the purposes of clause 4.6(4)(a); c. despite the zone objectives requiring the Applicant to demonstrate consistency with the zone objective 'to maintain and enhance' residential amenity, there is no reference to improvements or enhancements to residential amenity whatsoever; d. there is no reference to other critical documents (and relevant revisions) such as the architectural plans, the landscape plans and the plan of management." (Respondent's written submissions, 5 August 2021)
5. Mr Farrell submits that in the context of the errors and omissions outlined above, and on the evidence of Ms Buteux-Wheeler, the Court would conclude that: the written request fails to establish the first test under cl 4.6, that the objectives of the control are met notwithstanding the variation, thereby demonstrating that compliance with the development standard unreasonable or unnecessary.
6. Further, in relation to the first derived objective of the standard at cl 30AA of SEPP ARH Mr Farrell argues that the Court, in determining the compatibility of the development with the character of the locality, should apply the planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [26] (Project Venture). He argues the planning principle in Project Venture suggests that both physical and visual impacts are relevant to the determination of whether a proposed development is compatible with its context.
7. The relevant extracts relied on by Mr Farrell from Project Venture are reproduced below: "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."
8. Referencing the approach outlined in Project Venture, Mr Farrell argues that: firstly the written request fails to identify and analyse the essential elements that make up the character of the local area and instead provides only a description of it; and secondly the discussion within the written request in relation to the physical impacts of the development is limited to a single sentence and is not referrable to the set of plans currently before the Court.
9. Mr Farrell submits that if the Court accepts the evidence of Ms Buteux-Wheeler in the joint report that the Issue G plans generate unreasonable privacy impacts on adjoining properties due to overlooking, the Court would conclude that the amenity impacts arising from the development do not advance the proposals compatibility.
10. Further, Mr Farrell argues that there are a number of indicia, conceded by Mr Sarich in cross examination, that indicate lack of visual compatibility. He submits that the following elements are relevant to this analysis: "a. building use: there are no other boarding houses in the visual catchment of the subject site; b. elevations: the western elevation of Building 1 has a maximum length of 29.6m. Although this wall as perceived may be slightly shorter from certain angles, Mr Sarich was aware of no other building in the R2 zone with a length of this extent; c. Building wall height: there is a wall of 6.7m (masonry parapet on western façade) for building one immediately adjacent to the boundary; d. Side setback: this was 4.48m dominated by hard stand area constituting a driveway, an easement, a services corridor, a shared zone and stormwater drainage infrastructure; and e. Landscaping: the width of the planter bed for landscaping is approximately 500mm which would make it difficult to grow canopy trees or other vegetation to soften." (Respondent's written submissions 5 August 2021)
11. Mr Farrell concludes that, applying Project Venture, the Court would find that the proposed boarding house development has a number of discordant features, and that it is not compatible with the character of the local area.
12. In relation to the second derived objective Mr Farrell submits that the Court's planning principle in Meriton v Sydney City Council (2004) 140 LGERA 144; [2004] NSWLEC 313 is relevant to considering the visual privacy impacts of the development. Applying this principle to the current development he concludes: "a. The zone is R2 low density residential with a reasonable expectation that a dwelling its (sic) private open space will remain private. b. in relation to separation: plan DA-18 sets out some separation distances but some of the critical separation distances (including in locations where there is no fencing) is not provided. There is limited separation on the first floor which could have been achieved by a development recessed on the first level. Otherwise, the development is a new 6.7 metre high and 28 metre long structure located in close proximity to the western receivers. c. In relation to overlooking, this has been improved by the changes to the windows in Rev H (at the expense of the amenity of these rooms). No privacy cross sections are provided from the western elevation to 11, 11A and 13 Burns Road. No analysis has been done of the uses of the indoor and outdoor open space at 11, 11A and 13 Burns Road. The overlooking impacts from ground and first floor therefore remain uncertain; d. Landscaping: even if it was relevant, concerns are raised by the Applicant's planner (and to some extent agreed by Mr Sarich) as to the sufficiency of the 500mm garden bed to support proper landscaping with canopy trees." (Respondent's written submissions 5 August 2021)
13. Mr Farrell submits that on the Respondent's analysis of the written request the Court would conclude that it fails to establish the first test under cl 4.6, that the objectives of the control are met notwithstanding the variation, thereby demonstrating that compliance with the development standard unreasonable or unnecessary. On this basis he argues that the Applicant's request to vary the development standard at cl 30AA of SEPP ARH should not be upheld by the Court.

Findings

1. Clause 4.6(3)(a) of LEP 2013 requires the consent authority to be satisfied that the written request seeks to justify the contravention of the relevant development standard by demonstrating that compliance with that standard is unreasonable or unnecessary in the specific case of the development application. In these proceedings the written request elects to do this by arguing that despite the variation to the 12 room boarding room standard, by providing 15 rooms, the development application meets the derived objectives of the cl 30AA of SEPP ARH.
2. After considering the expert evidence, submissions of the parties and reviewing the written request itself, I am not satisfied that the written request meets the requirements of cl 4.6(3)(a) of LEP 2013. My reasoning follows.
3. The written request is not referrable to the development for which the Applicant seeks consent. As much is accepted by Mr Sarich, refer paragraph [43]. The "development" referred to in the written request, and for which arguments are advanced to justify the variation, is not that which is contained in the amended development application.
4. Notwithstanding the preceding if I apply the test at cl 4.6(3)(a) I am not satisfied the written request justifies the contravention: 1. The written request does not satisfactorily explain why compliance with the 12 boarding room standard, at cl 30AA of SEPP ARH, is unnecessary or unreasonable. 2. In relation to the first implied objective I accept Mr Farrell's submission that applying Project Venture, and ultimately establishing whether the first implied objective is met, it is necessary to establish the relevant built form characteristics of the locality. I accept and prefer the analysis of Ms Buteux Wheeler in this regard; summarised at paragraph [54]. I am satisfied that the proposed development is not visually compatible with its context, in particular I find that the limited setback to the western boundary, the uncharacteristic wall length of Building 1 and the absence of landscaping within the setback to give a setting to the building support this conclusion. I note that Project Venture at [56] emphasises that "(t)he 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 my view these characteristics are particularly relevant to the subject site given its constraints and a-typical relationship to the adjoining properties. 3. The reference to the FSR of the proposed development, as an indicia of its density, is misleading in an instance where much of the site is constrained and thus absent of development/built form. 4. In relation to the second implied objective I accept Mr Farrell's submission that firstly the written request provides only cursory attention to the second objective, and secondly that such assessment is referrable to an earlier version (revision G) of the architectural plans. In particular, I note that the discussion of the potential adverse amenity impacts arising from the development is limited to a single sentence in the written request: "provides compliant parking, satisfactory solar access and privacy impacts". (Exhibit D) Whilst acoustic and privacy impacts are matters addressed by the planning experts in their joint report, the written request itself is silent on these likely impacts of the development. I accept Ms Buteux-Wheeler's assessment, refer paragraph [59]-[60], that without the subsequent amendments to address privacy impacts that were forthcoming in the amended development application (revision H) the privacy impacts arising from the development were unreasonable. I am satisfied that the written request does not adequately address how the second derived objective of the standard is achieved notwithstanding the variation.
5. For the preceding reasons I find that the written request does not adequately demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: cl 4.6(3)(a) of LEP 2013.

Does the written request establish sufficient environmental planning grounds to justify the contravention of the development standard?

1. In Initial Action at [24] Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, the environment planning grounds in the written request must be sufficient to 'to justify contravening the development standard', noting that the focus of the justification is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
2. The written request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the development standard at cl 30AA of SEPP ARH. Those grounds can be summarised as follows: 1. The large site area and appropriate design of the development allow the site to support the proposed 15 rooms. The minimum lot size in the R2 Low Density Residential zone is 450m², the subject site is some five times greater than this minimum size allotment on which a boarding house could be carried out. 2. Each building contains less than 12 boarding rooms and each building addresses a different street, on a different allotment therefore achieving the intent of the control. Each building is on a separate lot, on a strict view the development application complies with the standard. 3. The built form of boarding house development in the R2 Low Density Residential zone is compatible with the built form of other development in the local area. 4. The amenity impact of the development on adjoining and nearby properties, such as overlooking and car parking impacts are controlled by appropriate design and landscaping, thereby achieving the objectives of the control. The impacts of the development are 'diluted' as the development is distributed across two buildings. (Exhibit D)
3. Mr Farrell submits that the Court should find that it is not satisfied of the matters set out in cl. 4.6(4) of LEP 2013, in particular that the variation request had adequately demonstrated that there are sufficient environmental planning grounds. Mr Farrell argues: 1. The Court should reject the argument that the site has special characteristics on the following three grounds: "a. far from having special characteristics (conducive to larger and bulkier development), the Site is in fact constrained by electricity easements and rights of carriageway, leaving limited developable areas in the north and south of the Site; b. when looked in context, the Site is relatively narrow meaning that special consideration needs to be given to side setbacks and impacts on adjoining residences; and c. the form of surrounding development (houses facing the Site) means that even further sensitivity to design and built form should be given." (Respondent's written submissions, 5 August 2021) 1. That the Court would follow the reasoning of Horton C in GM Architects at [116] that the standard at cl 30AA of SEPP ARH applies to the land and that the number lots which constitute the development application is not an environmental planning ground. 2. That for his reasons summarised at [67] - [72] the Court would find that the development is not compatible with the built form of development in the local area. 3. The Court would reject ground 4. As a result of the constraints of the site the evidence demonstrates that the development in unable to mitigate its impacts on adjoining owners.
4. In the alternative, Mr McKee submits that the grounds detailed in the written request, as summarised at [81], are sufficient environmental planning grounds to justify the contravention. He concludes that the Court, as consent authority, will be satisfied that the written request to vary cl 30AA of SEPP ARH is well founded and worthy of being upheld.

Findings

1. As noted at paragraph [75] the environmental planning grounds advanced in the written request must be sufficient in two ways. Following a review of the FSR written request, and the submission made, I am not satisfied that there are sufficient environmental planning grounds to justify the contravention of the FSR standard sought by the proposed development.
2. Firstly, I am not persuaded that the grounds advanced are, in all cases, environmental planning grounds. For example, Ground 2, in my view, is an argument advanced as to why the development is complaint with the development standard at cl 30AA of SEPP ARH. In my view it is not an environmental planning ground that seeks to justify the variation. Further, my findings at [78] in relation to the lack of compatibility of the proposed development with the character of the locality infects Ground 3.
3. As noted at [77] the written request does not reflect the amended development application before the Court, but an earlier version of the architectural plans (Revision G). I accept the evidence of Ms Buteux-Wheeler that the development described by the Revision G plans resulted in unacceptable privacy impacts, in particular to the privacy of the adjoining properties to the subject site. I am therefore not satisfied that Ground 4 is an environmental planning ground in these proceedings.
4. Lastly, addressing the ground advanced as the unique characteristics of the site and its constraints. I am not persuaded that the Applicant has given adequate regard to the appropriate treatment of the portions of the site that are occupied by Building 1 and Building 2 and the relationship of these portions of the site to the adjoining landholdings, access, rights of carriage ways and mitigations of likely impacts arising from the development. I do not accept the reasoning in the written request that argues that the large site area supports a variation to support 15 boarding rooms or that the large site area serves to 'dilute' the impacts of the development. I accept and prefer the evidence of Ms Buteux-Wheeler that the approach to the site adopted by the Applicant has led to an inappropriate intensification of the development in the limited unconstrained portions of the site.
5. Further, as clarified in Initial Action at [24] the environmental planning grounds advanced in the written request must focus on the aspect or element of the development that contravenes the standard, ie the additional boarding rooms in this case. In contrast I find the grounds advanced in the FSR written request promote the benefits that will be realised by the development as a whole. This finding infects grounds (1), (2), (3) and (4) summarised at paragraph [81].
6. Secondly, if the grounds advanced at paragraph [81] are accepted to be environmental planning grounds, I find they are not sufficient. I am not satisfied that the grounds advanced are either quantitatively and/or qualitatively sufficient to justify the variation to the standard.
7. Finally, it is appropriate to look at the environmental planning grounds as a holistic submission. Doing so I find I am not satisfied that any of the benefits outlined in the written request (including those that I consider do not form environmental planning grounds) justify, or inform, a variation to cl 30AA of SEPP ARH and therefore the contravention of the development standard.
8. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) of LEP 2013 and consequently there is no power to grant consent to the development application which does not comply with the development standard at cl 30AA of SEPP ARH and the application must fail.

Conclusion

1. Given my findings that the requested variation to the development standard of 12 boarding rooms at cl 30AA of SEPP ARH is not justified, the Court has no power to grant consent to the development application. Nevertheless if the variation was upheld I am satisfied that, by adopting the same evidence and reasoning as detailed, I would conclude that firstly the adverse amenity impacts arising from the development are unreasonable, secondly that the site is unsuitable for the proposed intensity of development given its significant constraints. In combination these findings are sufficient to warrant refusal of the development application under s 4.15(1) of the EPA Act. This view is reinforced when consideration is given to the particular and specific zone objectives of the R2 Low Density Residential zone which seeks to maintain and enhance residential amenity and character.
2. The Court orders that: 1. The appeal is dismissed, 2. Development application DA/993/2019 for development of a boarding house and ancillary works at 17 Burns Road Ourimbah (Lot 17, 18, 19, 20 DP 706878) is determined by way of refusal. 3. The exhibits are returned with the exception of Exhibits 3, A and B.

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