Platform Architects Pty Ltd v Northern Beaches Council

Further amendment to Development Application

1. At the hearing of this matter the Applicant sought leave to further amend the development application to increase the side setback on the western side by reducing the width of the building whilst retaining the proposed setback to the eastern side. In addition, the landscape plans had been amended to reflect the architectural drawings. The leave sought to amend was not opposed by the Council, subject to the payment of its costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act). Leave was granted to the Applicant to amend the plans in accordance with those plans referred to as issue N, together with the landscape plans (issue C) (the DA) subject to an order that the Applicant pay the Council's costs as required by s 8.15(3) of the EP&A Act.

Contentions

1. The Council filed an Amended Statement of Facts and Contentions dated 30 October 2020 that raised three issues in the appeal in respect of: 1. The lack of consistency between the proposal and the Desired Future Character set in the for Locality C8 Belrose North Locality Statement and generally (Contentions 1 and 2) due to: 1. A failure to protect and where possible enhance the natural landscape including landform and vegetation; and 2. A failure to provide 10m setbacks to the side setbacks; 1. Unacceptable overlooking and privacy impacts from the outdoor common area and properties to the east; and 2. Public interest.
2. The evidence filed in the proceedings relating to these contentions indicated that the issues, with the exception of the western side setback, had been resolved by the plans amended in September.
3. Upon leave being granted to the making of the further amendments the Council indicated that it would not be submitting that the DA should be refused or that there remained any identified contention that had not been satisfactorily addressed by the further amendment to the DA. Accordingly, the Council indicated that subject to the imposition of conditions it would not be submitting that any matters would warrant the refusal of the application and that it was a matter for the Court as to whether it was satisfied that the DA should be approved subject to conditions.

Evidence

1. An inspection of the Site and surrounding locality was undertaken in the company of representatives for the parties.
2. Landscaping evidence was given by way of a Joint Expert Report of Mr Wright for the Applicant and Mr Powe for the Council.
3. The Landscape architects were of the joint opinion that: Response to Contentions The amended landscape Plans indicate that 10 native trees to 9m height are located in rows parallel to the building on the western side of the site. Under-planting along this western side includes 75 small native trees to 5m along with smaller shrubs and groundcovers. 4 New canopy trees are included in the front setback and 4 new canopy trees are included in the rear setback. 3 existing trees are also retained in the front setback. The proposed trees and retention of existing trees shall maintain and enhance the streetscape and desired character of the locality. The relocated dwelling and driveway enables retention of 35 existing trees along the eastern boundary within the site that conserve significant landscape features of the property. Space for suitable outdoor recreational requirements and service functions for the future Residents has been provided at the rear and front of the site. The relocation of the dwelling further to the west to enable retention of trees on the eastern boundary results in a technical non-compliance with the side setback on the western side, while conserving significant existing trees and landforms on the eastern side of the site. The Architectural Plans indicate that the setback to the western boundary varies from between 5 metres to 9.63 metres. The planning control requires 10 metres. The experts agree that in terms of the proposed planting indicated along the western boundary, sufficient space is available to enable the proposed planting to establish and mature to provide planting commensurate with the building height, length, bulk and scale. 5.0 Position Agreement The experts agree that matters related to landscape architecture have been resolved and can now be appropriately conditioned.
4. Town Planning evidence was by way of Joint Expert Report and oral evidence by Mr MacDonald, town planner for the Council, and Mr Lovell, town planner for the Applicant.
5. In the Joint Expert Report, the Town Planning experts indicated that they were of the joint opinion that, apart from the matter relating to side setbacks, the matters raised in the Amended Statement of Facts and Contentions had been satisfactorily addressed. Dealing with the side setback issue Mr MacDonald stated at [22] of the Joint Report: On balance, and given the positive design outcomes achieved on the other side of the site, I am of the opinion that, in order to ameliorate the building bulk of the substantial 2 storey building when viewed from the adjoining property, the side boundary setback to the south-western boundary should be a minimum of 6m, consistent with that previously proposed. This should be achieved while maintaining the current (Revision M drawings) design approach of breaks in the building footprint and angled walls, as currently proposed - but with the components less than 6m increased to a minimum of 6m.
6. At the hearing of this matter Mr MacDonald gave evidence that after a consideration of the evidence of the Landscape Architects and the further amendment to the DA the side setback on the western side now conformed with his requirements as outlined above in that the building was set back to achieve conformity with the setback previously proposed in the revision H drawings and that the building was now largely setback a minimum of 6m with the only exception being the leading edge of the blade walls. He was of the opinion that with the proposed landscaping the setbacks to the east and west were capable of being supported having regard to the provisions of cl 20 of the Warringah Local Environmental Plan 2000 (WLEP) and that there was no outstanding contention that would warrant refusal of the DA.
7. Documentary evidence was also tendered. Included in that material were the submissions that had been made with respect to the DA in response to the relevant notification of the DA. In addition, oral evidence was given by Mr Patton, a local resident representing his wife and himself, another local resident neighbour (Ms McElroy) and the Belrose Rural Community Association Inc. In addition to the matters raised in the written submissions Mr Patton highlighted in his oral evidence the particular areas of concern relating to the proposal including: 1. The DA was not consistent with the Desired Future Character of the C8 Locality due to: 1. Non-compliance with the Council's housing density standard in the WLEP; 2. The DA was not for low intensity, low impact development; 1. The locality is largely low density housing and that the DA would undermine that character; 2. Traffic impacts; 3. Bushland impacts; and 4. Flooding.
8. The submissions outlined by Mr Patton largely coincided with the areas of opposition that had been identified in the submissions opposing the development that had been made to the Council following the notification period.

The Planning Framework

1. The Site is deferred land under the Warringah Local Environmental Plan 2011. As provided for in cl 1.3 of that Local Environmental Plan development of the Site remains controlled by the provisions of the WLEP.
2. Under the WLEP development is controlled by cl 14, of which requires a determination, by reference to a relevant locality statement, of the category within which the development proposed would fall. Depending on what category the development is determined to be the relevant considerations vary.
3. In this case, the WLEP identifies the Site within Locality C8 Belrose North. In Appendix C of the WLEP that locality identifies four categories of development: 1, 2 and 3 and prohibited development. Of relevance is that category 2 development includes: Other buildings, works, places or land uses that are not prohibited or in Category 1 or 3.
4. Development for the purposes of a boarding house is not nominated as prohibited development nor is it capable of being characterised as any of the development types listed in categories 1 or 3. Further it is not specifically referenced in category 2. Therefore, it falls within the provision provided for in category 2 outlined above into which innominate uses are captured. The DA is, therefore, category 2 development in the C8 Locality.
5. Where development is category 2, cl 12 of the WLEP requires the following matters to be considered before consent is granted: 12 What matters are considered before consent is granted? (1) Before granting consent for development the consent authority must be satisfied that the development is consistent with - (a) any relevant general principles of development control in Part 4, and (b) any relevant State environmental planning policy described in Schedule 5 (State policies). (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with - (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out. (3) In addition, before granting consent for development classified as - … (b) Category Two…, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement, but nothing in a description of desired future character creates a prohibition on the carrying out of development.
6. Having regard to the relevant provisions of cl 12 of the WLEP it is noted that Schedule 5 of the WLEP does not identify any State Environmental Planning Policy that would be relevant to the determination of this DA and accordingly the provisions of cl 12 (1)(b) do not raise a further relevant consideration.
7. Clause 12(2)(b) also provides that the consent authority must be satisfied that the development will comply with all development standards in the Locality Statement for the C8 Locality. However, this provision is subject to cl 20(1) of the WLEP that relevantly provides: 20 Can development be approved if it does not comply with a development standard? (1) Notwithstanding clause 12 (2) (b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.
8. For the purposes of cl 12(1)(a) the general principles of development control identified in Part 4 are numerous and deal with many matters that are not relevant to the DA. Those that were potentially relevant to the DA were identified in the Council's Development Application Assessment report at exhibit 1 folios 210-218. Having considered the evidence in this matter I am satisfied for the reasons set out by the Council in the assessment report that the potentially relevant provisions identified of the DA, in its assessed version and now with the further amendments to the DA, had been satisfied and that apart from the matters addressed below there is no matter identified as a general principle of development control that would require further comment in these reasons.
9. For the purposes of cl 12(2)(a) the only relevant requirements made by Parts 2 and 3 (in addition to cls 12 and 20 already addressed above) of the WLEP is cl 22 which requires a site analysis. The Applicant has provided a site analysis as part of the DA and I am satisfied that the requirements of cl 22 have been met.
10. The provisions specifically relating to the C8 Locality Statement to be considered as required by cls 12(2)(b) and 12(3)(b) will be addressed in the consideration of this DA below.

Is the DA consistent with the Desired Future Character Statement?

1. Clauses 12(2)(b) and 12(3)(b) require the consent authority to be satisfied that the proposed development will comply with any relevant development standards set out in the Locality Statement and will be development that is consistent with the Desired Future Character described in the Locality Statement. The first relevant provisions of the Desired Future Character Statement at Appendix C of the WLEP provide: The present character of the Belrose North locality will remain unchanged except in circumstances specifically addressed as follows. … Development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. …
2. The housing density standard is then formulated as: The maximum housing density is 1 dwelling per 20 ha of site area, except - …
3. In order to determine whether the DA is consistent with the Desired Future Character Statement and complies with the development standards it is necessary to determine whether the DA: 1. Is development to which the housing density standard applies; and, if not, 2. Is development characterised as "low intensity, low impact uses".
4. The Desired Future Character Statement prescribed that development is limited either to development that conforms with that standard or is otherwise characterised. If the DA is required to meet the housing density control then in this appeal it must be refused as it does not meet any of the internal provisions that would permit a variation of the control and the concurrence of the Director, as would be required to further vary the control, has not been sought or obtained. If the housing density standard does not apply and the DA is not a low intensity low impact use then it cannot be approved as the consent authority would be unable to be satisfied that the DA would be consistent with the Desired Future Character Statement.

Does the housing density standard apply to the DA?

1. The two provisions of the housing density standard indicate an intention that it relates to detached style "housing" with a density measured by reference to the number of "dwelling(s)". The question, therefore, arises as to whether a boarding house in the configuration of that proposed in the DA is relevantly housing or a dwelling such that the limit has application to the DA.
2. The definitions of these terms in the WLEP provide: Housing means development involving the creation of one or more dwellings whether or not used as a group home. Dwelling means a room or a suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
3. The proposed boarding house is incapable of being characterised as a group home as the definition of that use is not reflective of the boarding house proposed both in the number of rooms, the nature of occupants and occupancy.
4. The characterisation then turns on whether the boarding house proposed in the DA comprises one or more dwellings. The concept of a dwelling has been the subject of considerable debate over many years. As a general proposition a dwelling must contain the essential components of a domicile for the exclusive use of the occupant, being: sleeping; bathroom and cooking facilities. Each development will be required to be considered on its own facts to determine whether it meets such requirements. In this case, each of the boarding rooms contain sleeping and bathroom facilities for the exclusive use of the occupant. However, none of the boarding rooms, nor the manager's room, provide facilities that would permit even the most basic cooking facilities required to permit the rooms to operate as a domicile or dwelling.
5. The DA proposes that no room will have a sink, bench, food storage or preparation areas that would permit basic cooking. Further, the DA proposes that the occupants of the rooms will be the subject of a Plan of Management that will bind the occupants of the rooms. That Plan of Management further provides: 2.1 Bedroom … All food preparation and cooking is to be done in the communal kitchen or common areas which have cooking facilities. No food preparation or cooking is to be done in rooms. … 2.4 House Rules … c) Lodgers must carry out all food preparation and cooking in the communal kitchen. …
6. The terms of the proposed conditions of development consent require compliance with the Plan of Management by its incorporation into the documents referred to in condition 1.
7. The proposed conditions of development consent also expressly acknowledge the physical limitations of the proposed boarding house by requiring compliance with condition 2 that specifies: Approved Land Use a) Nothing in this consent shall authorise the use of site as detailed on the approved plans for any land use of the site beyond the definition of a Boarding House. A Boarding house is defined as: boarding house: (a) means any premises that: (i) are wholly or partly let as a lodging for the purposes of providing the occupants with a principal place of residence, and (ii) are used and occupied by at least 4 long term unrelated residents, and (iii) include a communal living space used for eating and recreation, and (iv) are not licensed to sell liquor, and (b) does not include premises that have been subdivided or in which there is separate ownership of parts of the premises." (development is defined by the Warringah Local Environment Plan 2000 (as amended) Dictionary) Any variation to the approved land use and occupancy of any unit beyond the scope of the above definition will require the submission to Council of a new development application. b) In order that each of the boarding rooms and the manager's residence are not capable of being used as separate self-contained dwellings, each of the boarding rooms and the manager's residence must not contain, or at any time have installed, any cooking or meal preparation facilities. This includes plug-in electrical appliances. All meals must be prepared in the communal kitchens provided separately within the premises.
8. With the physical limitations of the boarding house rooms the rooms have not been designed to be used as a dwelling. With the proposed conditions of development consent the rooms will not be able to be altered to be so used without the grant of a further approval. For those reasons, the boarding house does not comprise a dwelling or dwellings.
9. As the proposed DA does not comprise housing or a dwelling the housing density requirements of the Locality Statement or the development standards in the C8 Locality do not apply to the DA.

Is the DA for a low intensity low impact use?

1. In order to be consistent with the Desired Future Character Statement for the C8 Locality the proposed development must be a low intensity low impact use. These two terms are not defined in the WLEP and, accordingly, are to be given the ordinary meaning of the words having regard to the context in which they are found.
2. The context in which the provision is found assists in informing its intended meaning. In this case, there are a number of contextual indicia that suggest that the references to intensity and impact are to be considered by reference to the environmental or planning impacts of the proposed development.
3. First, the terms are contained in an environmental planning instrument such that it can be taken to intend to relate to environmental or planning consequences of undertaking a proposed use. It is in a provision relating to the characteristics of development in a particular identified locality. The reference is, therefore, identifying the particular characteristics of development types in that identified locality.
4. Secondly, the C8 Locality Statement identifies by category the types of uses that are anticipated as being potentially compatible with the Desired Future Character of the Locality. As WLEP states at cl 12 each of the three categories of development are capable of being approved provided the development satisfies the relevant considerations which are dictated by the category in which it falls. As can be observed from the three categories of development in the C8 Locality Statement the anticipated potential purposes of development are broad and not just limited to housing or other residential uses, thereby indicating that it is the consequences of a particular use on the desired future character that is to be considered.
5. Finally, the purpose of the WLEP and the locality statements is to permit an assessment of proposed development pursuant to the relevant considerations as set out in s 4.15 of the EP&A Act. Those considerations also look to impacts on the locality.
6. The particular term "low intensity, low impact uses" as used in the WLEP has been considered by this Court in Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128 where the Commissioner accepted the evidence of a Council planning officer as to their understanding of the meaning of the terms which was extracted at [17] as: Intensity - is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore "low intensity" would constitute a development which has a low level of activities associated with it. Impact - is commonly used in planning assessment to identify the likely future consequences of proposed development in terms of its surroundings and can relate to visual, noise, traffic, vegetation, streetscape privacy, solar access etc. Therefore 'low impact' would constitute a magnitude of impacts such that was minimal, minor or negligible level and unlikely to significantly change the amenity of the locality.
7. Applying an ordinary meaning to the words used, having regard to the planning and environmental context indicated above, I also accept that the appropriate meaning to be ascribed is that as was accepted in Vigor Master as set out above.
8. In this case, I accept the evidence of the Town Planning experts that the nature of the propose use is of a residential type, that is, that people will resort to the premises to sleep and recreate. Whilst the number of unrelated individuals may exceed that of a single family home, the impact is unlikely to cause unacceptable amenity impacts due to the design of the building with the communal areas directed away from the street frontage, the management of external noise by the Plan of Management and the design of the building that limits opportunities for overlooking of adjoining residential premises. Further, the design, building height and landscaping will provide a development that is consistent in its visual impact to development within the C8 Locality and the adjoining R2 residential development.
9. I also accept the assessment of traffic impacts undertaken by both the Council and the Applicant that the number of trips associated with the boarding house use will be of low intensity and will be consistent with the current uses in the locality. In this regard, I note that a number of the persons who made submissions that opposed the DA cited existing traffic congestion arising from the school that is in close proximity to the Site. The traffic engineers observed (and I accept) that the users of the boarding house are unlikely to be unreasonably contributing to traffic during these periods and are likely to be heavy users of the public transport facilities available such that the impact of traffic generated by the DA is low in intensity and impact.
10. Accordingly, the boarding house use proposed in the DA is properly characterised as a low intensity, low impact use and is, therefore, capable of being consistent with the Desired Future Character Statement of the C8 Locality.
11. Turning then to a consideration as to whether the proposed DA is consistent with the remaining provisions of the Desired Future Character Statement for the C8 Locality relevant to this DA, that statement described that character in the following terms: The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms and buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.
12. As observed at the site inspection and from the evidence the character of the C8 Locality is mixed. It contains housing, open space, recreational uses, schools, retail and wholesale uses, boarding houses, childcare centres and the like. That is the character of the locality which is sought to be retained. In this case, the provision of an additional boarding house is consistent with that "present character" as referred to in the Locality Statement.
13. The proposal in the DA has been designed to reinforce the natural landscape features of the Site. The creation of pavilion style architecture that steps down the natural slope of the land which is sited in a manner that the significant stands of vegetation can continue to contribute to the bushland character of the C8 Locality ensures that the natural landscape is protected such that the DA meets the requirements of, and is consistent with, the Desired Future Character Statement.
14. For the reasons outlined above, I am satisfied that the DA is consistent with the Desired Future Character Statement and, therefore, meets the requirements of cls 12(2)(b) and 12(3)(b) of the WLEP.

Does the DA comply with the development standards and if not can a variation to the standard be permitted by operation of cl 20 of the WLEP?

1. The evidence also discloses that the DA meets all of the development standards in the C8 Locality Statement except as to: 1. Building height as it relates to ceiling height above ground; and 2. Side setbacks particularly as it relates to the western setback of the building. As observed at [31] above, such non-compliances with development standards are capable of being approved subject to the proposal otherwise meeting the requirements of cl 20 of the WLEP. For the reasons that follow, I am satisfied that the DA is consistent with the general principles of development control and the Desired Future Character of the C8 Locality notwithstanding the non-compliance with the height and setback control.
2. The ceiling height control in the Locality Statement provides: Buildings are not to exceed 7.2 metres from natural ground level to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas located wholly within a roof space), but this standard may be relaxed on sites with slopes greater than 20 per cent within the building platform (measured at the base of the walls of the building), provided the building does not exceed the 8.5 metre height standard, is designed and located to minimise the bulk of the building and has minimal visual impact when viewed from the downslope sides of the land.
3. It was an agreed fact that the proposed building did not meet the internal variation provision of this clause and, therefore, a variation to the requirements would be assessed in accordance with cl 20.
4. The extent of non-compliance with the ceiling height control is limited to a portion of the communal room at the rear elevation of the building and a minor non-compliance at the room U9 adjacent to the lift overrun. These areas (and the whole of the building) are compliant with the maximum building height limit of 8.5m above ground. The areas of non-compliance are setback from the street frontage and are unlikely to be perceptible from any public viewing location. The potential for impact on any adjoining property has been adequately ameliorated by the side setback provisions together with the significant existing and proposed landscaping. The small areas of non-compliance are unlikely to be perceptible from within the Site itself or from adjoining private viewing locations. The areas of non-compliance coincide with changes in the natural landform and in order to reduce the amount of change to the landform the architectural response is appropriate in the circumstances of this case.
5. The side setback control set out in the Locality Statement requires: Rear and side building setback Development is to maintain rear and side building setbacks. The rear and side building setback is 10 metres. The rear and side setback areas are to be landscaped and free of any structures, carparking or site facilities, other than driveways and fences.
6. The rear setbacks comply with this standard. However, the side setbacks have variable setbacks with the greatest extent of the non-compliances being a setback of a minimum of 5.36m to the west and 8.9m to the east. The variations in the side setbacks reflect the pavilion-style architecture of the DA where two breaks in the elevation set the building from the boundary in excess of 10m. To the east the elevations are then treated with angled walls that extend at the closest point to the boundary as blade privacy walls and to the west the closest point is a short run of the elevation at the front pavilion. The architectural style permits the protection of privacy to the adjoining dwelling and the provision of significant landscaping (existing and proposed) whilst ensuring opportunities for cross ventilation, privacy and solar access to the boarding rooms. The architectural treatment also provides for areas of significant planting along the boundary, which together with the selected materials, will provide a building that is recessive in its impact and is consistent with the relevant general principles of development control and the desired future character of the locality. The side setbacks are also consistent with (and to some extent greater than) the development forms in the locality and in the adjoining R2 development fronting Wyatt Avenue.
7. For those reasons, I find that the variations to the development standards in the Locality Statement are such that the development should be approved subject to the conditions agreed between the parties.

SEPP 55 Contamination

1. The Site is also subject to the provisions of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55). Clause 7(1)(a) of SEPP 55 provides: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and …
2. In this regard I accept the evidence of the Council that the land has been vacant for a considerable period of time with no history of past uses that would pose a risk of contamination. I am therefore satisfied that no further assessment of the risk of contamination is required by SEPP 55 to enable the DA to be approved.

Public Interest

1. In the determination of this matter I have considered the submissions made by the community in response to the DA. The matters raised by those submissions dealt almost exclusively with the extent to which the proposed development was appropriate having regard to the development controls and matters for consideration in the WLEP. Those matters have been considered in the assessment of this application and for the reasons identified herein are determined to be acceptable having regard to the nature of the considerations required by s 4.15 of the EP&A Act and the WLEP. It is acknowledged that such an assessment does not mean that there will be no changes experienced by the neighbours in the locality, such is the case when new development is undertaken, particularly in circumstances such as the present when the site has been vacant for many years. However, the extent of that change is considered acceptable in the circumstances of this case.

Conclusion and orders

1. The development application for a boarding house on the Site should be determined by the grant of development consent subject to conditions.
2. The Court orders that: 1. The Applicant is granted leave to amend the development application in the manner proposed in the amended architectural plans (issue N) and landscape plans (issue C); 2. The Applicant is to pay the Council's costs for the amendment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979; 3. The development application DA 2018/0401 is determined by the grant of development consent subject to conditions in accordance with Annexure A; and 4. The exhibits, with the exception of exhibits M and 5, are returned. Annexure A (341454, pdf)

Amendments 20 January 2021 - Typographical error - Date of Orders 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: 20 January 2021