Qian v Willoughby City Council

Land and Environment Court (NSW)|2020-01-14

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by Willoughby City Council (the Respondent) of Development Application No. 2018/185 seeking demolition of existing structures at 42-44 Elizabeth Street, Artarmon and construction of a 26 room boarding house with basement parking for 6 cars over six levels.
On 11 October 2019, the Applicant was granted leave to amend the application and rely upon amended plans and documents subject to the Applicant paying those costs of the Respondent thrown away as a result of the amendment. The amendments can be summarised as follows:

Reduction in the number of rooms to 20
Inclusion of a central landscaped courtyard
Revised access arrangements to street and lane frontages

On 9 January 2020, the Applicant sought leave to further amend the proposal by the provision of an arborist report and additional shadow diagrams. While the Notice was initially listed for 22 January 2020, the parties agreed that it was preferable to resolve the matter at the commencement of the hearing which was done with the tendering of the arborist report (marked Exhibit D) and shadow diagrams (marked Exhibit C) with consent of the parties as the material supported the joint expert reports.

The site and its context

The site has 3 frontages. To the west, Valetta Lane adjoins, and adopts, the alignment of the Sydney Trains T1 North Shore line railway corridor. To the north, Federation Lane rises steeply between Valetta Lane and Elizabeth Street, which the site addresses to its east.
The site is formed by two allotments, being legally described as Lot 1 in DP 300805, and Lot 2 in DP 300805 with a combined total area of 670.26m2, and a steep fall of around 8.2m from Elizabeth Street to Valetta Lane.
The site is located around 100m from the Artarmon railway station, within the R3 Medium Density Residential zone pursuant to the WLEP, in which boarding houses are permissible with consent and in which the objectives of the zone are in the following terms: To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To accommodate development that is compatible with the scale and character of the surrounding residential development. To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network. To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.
The site is located within the Artarmon Heritage Conservation Area (HCA) which is listed in Part 2 of Schedule 5 of the WLEP for its local heritage significance and is considered further at [75]-[85].

Onsite view and public submissions

In accordance with the Court's usual practice, the proceedings commenced with an onsite view at which 3 public submissions were heard. The Court was invited to view the site from an apartment at the first floor of No. 8-10 Brand Street, Artarmon on the northern side of Federation Lane, and from an apartment to the south of the site at No.40 Elizabeth Street, Artarmon.
While written submissions are contained in Exhibit 1 (Tab 15 and 16), notes from the verbal submissions were taken and later marked Exhibit 6.
The Court, in the company of the parties and their experts viewed the site and its surrounds in Valetta Lane, Federation Lane and Elizabeth Street before walking east along Cameron Avenue, north along Harden Road and west along Artarmon Road along a path marked in Exhibit F.

The application of the SEPP ARH

The Respondent contends that the provisions of cl 6.10 of the WLEP apply to the site, which imposes minimum lot size requirements of 1,100m2 for residential flat buildings in an R3 zone. However, I agree with the Applicant that the function of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) sets aside the provisions of cl 6.10 in respect of boarding houses for which there is no minimum lot size.
It is common ground between the parties that the proposal complies with the following standards that cannot be used to refuse consent at cl 29 of the SEPP ARH: • Floor space ratio • Building height • Solar access • Private open space • Parking • Accommodation size
However, the Respondent submits that notwithstanding aspects of compliance with cl 29 of the SEPP ARH, the proposal is an overdevelopment that is out of character with the Artarmon HCA as it offends the objectives and requirements of the Willoughby Development Control Plan 2012 (WDCP) and so fails to meet the 'character test' set out in cl 30A of the SEPP ARH, and consent must not be granted.
Clause 29 (1) and (2) of the SEPP ARH is in the following terms: 29 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 - (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is 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. …
Clause 30A is in the following terms: 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.
According to Mr Merlino, the Respondent's position at [20] is consistent with the conclusions of Commissioner Gray in Elcheikh v Cumberland Council [2018] NSWLEC 1165 who found, at [40] that the SEPP ARH "…requires the consent authority consider compatibility with the local area (cl 30A), but does not set out a framework of objectives, standards and design principles for local areas…The mere fact that there is compliance with the standards in cl 29 and 30 does not mean the proposal is compatible with the local area in accordance with cl 30A."
Additionally, an assessment of the merits will conclude that the proposal would impose adverse amenity impacts on future residents, and neighbouring properties.
In the alternative, Mr Nash, counsel for the Applicant, submits that the proper application of the 'must not refuse' provisions at subcl 29 (1) and (2) of the SEPP ARH is to 'give protection' to an applicant who has otherwise complied with the provisions such that consent cannot be refused under cl 30A for those aspects to which compliance has already been achieved. Instead, it is only open to the consent authority, or the Court on appeal, to refuse the application and dismiss the appeal on the basis of particulars that are not complied with, or not stated in the provisions at cl 29(1) and (2), in relation to the 'character test' at cl 30A. In this case, those particulars are whether the landscape treatment of the front setback is compatible with the streetscape, and the internal amenity of the rooms within the proposal.
Regardless, the test to be applied at cl 30A is to take into consideration the compatibility with the character of the local area, the effect of which, according to Mr Nash is that it is open to the Court to grant consent notwithstanding an incompatibility with the character of the area so long as the compatibility or incompatibility has been taken in to consideration.
Furthermore, Mr Nash submits that the scope of the term 'density and scale' found in cl 29(1) has broad application and so gives protection to the Applicant against refusal on the grounds of any aspect of the proposal that can be said to be related to density or scale, including excessive building length as contended by the Respondent, and considered further at [57]-[63].
However my reading of cl 29(1) is that a limitation applies to the 'must not refuse' provision in relation to density and scale to the extent that density and scale is expressed as a floor space ratio.
I also consider it entirely possible for a proposal to comply with the numerical controls of cl 29(1) and (2), and to simultaneously offend the character test in cl 30A. Consider a proposal that complies in every respect with the provisions at cl 29, but appears as an unrefined dull box set within a local area defined by richly detailed historic buildings. Or the inverse, where an applicant proposes an historical pastiche in a local area characterised by innovative and contemporary design.
I concur with Commissioner Gray that the objectives, standards and design principles found in the WLEP and WDCP assist my consideration of the 'character test' in cl 30A.
However I also accept the Applicant's position that the test required by cl 30A permits the Court to grant consent notwithstanding an incompatibility with local character of the area, once taken in to consideration.
Given the operation of the SEPP ARH, I will first consider the character of the local area as required by cl 30A which necessitates that I also consider the character of the Artarmon HCA as they are intertwined, before considering the effect of the proposal on the heritage significance of the Artarmon HCA as required by cl 5.10(4) of the WLEP. Following this, I will consider the merits of the proposal including amenity and the like.
On the issues in dispute, the Court was assisted by town planning experts, Mr Kim Burrell for the Applicant, and Ms Jane McMillan for the Respondent, and heritage experts Mr Greg Patch, for the Applicant, and Mr Nayeem Islam for the Respondent.

The proposal is compatible with the character of the local area

Clause 30A of the SEPP ARH requires, in essence, that the Court take into consideration whether the proposed development is compatible with the character of the local area.
Ms McMillan, for the Respondent, considers the proposed development is incompatible as it is built over five levels plus basement car parking, and is excessive in its overall length when compared to the surrounding Inter-war flat buildings that are two to three storeys in height and occupy smaller footprints
Furthermore, excessive excavation prevents deep soil landscaping and necessitates a tiered garden within the front setback of the Elizabeth Street frontage, which is inconsistent with cl 29(2)(b) of the SEPP ARH - a position that is shared by Mr Islam who prefers a modification to the tiered arrangement of retaining walls to more closely resemble the landscaped front setbacks of the neighbouring flats on Elizabeth Street, which I consider further at [70]-[74].
In considering the character of the local area, the aims of the WLEP include, relevantly, at cl 1.2(2): (d) for urban design - (i) to ensure development embraces the principles of quality urban design, and encourages innovative, high quality architectural design with long-term durability and environmental sustainability, and (ii) to promote development that is designed and constructed - (A) to enhance or integrate into the natural landform and the existing character of distinctive locations, neighbourhoods and streetscapes, and (B) to contribute to the desired future character of the locality concerned, and (iii) to ensure development design contributes positively to, and wherever possible facilitates improvements to, the public domain, and (iv) to preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including significant gateways, views and vistas, and (v) to ensure that development design takes into consideration crime prevention principles,
The provisions contained within the WDCP also provide guidance on the objectives, standards and design principles that support appropriate development in the local area. Part A.9 of the DCP contains, in table form, guidance on the Parts of the WDCP applicable to boarding house development, including the Parts that follow.
Part A.3 Aims of the Plan provide, relevantly: "The aims of this Plan are to: 1. Provide controls which will result in a high standard of development within the City of Willoughby; 2. Encourage development which is compatible with the urban scale and character of adjoining neighbourhoods and which takes account of the environmental constraints of each context; 3. Ensure that new development satisfies a high standard of urban design to create a unified streetscape, which contributes positively to the streetscape, reinforces the importance of pedestrian areas and provides an attractive environment; … 8. Set appropriate environmental standards which achieve high levels of residential amenity such as solar access, privacy, noise, views, security, landscaped open space, convenience of access and parking to the occupants and to adjacent properties; 9. Preserve and enhance the character and amenity of the residential zones and to ensure that future development within those zones is compatible in scale and character with existing development; … 11. Encourage the development of a variety of housing types which are compatible with the urban scale and character of existing neighbourhoods and which take into account the environmental constraints; … 15. Ensure that the significance of Heritage Items is identified and retained and to ensure that the special streetscape character of Heritage Conservation Areas is maintained; 16. Ensure that new development respects the context and is sympathetic in terms of form, scale, bulk, fabric, colours and textures and does not mimic or adversely affect the significance of Heritage Items and Heritage Conservation Areas and their settings; …"
Part B provides guidance on the Application Process.
Part C1.2 of the WDCP provides guidance on the criteria to apply when considering the total or partial demolition on a site within a heritage conservation area.
Part G.2 of the WDCP provides guidance on specific development types, including boarding houses.
Part H of the WDCP Heritage Items and Conservation Areas applies and provides, at Part H.1.2, Aims which include: "These controls aim to provide more detailed heritage provisions than contained in WLEP 2012 and in particular: to guide future development within a framework of conservation; to ensure that the significance of Heritage Items is identified and retained; to ensure that the heritage significance, special streetscape and landscape character of Heritage Conservation Areas is maintained; to ensure that alterations and extensions to existing buildings respect those buildings and do not compromise the significance and character of the individual heritage items or of the Heritage Conservation Areas; to ensure that new sustainable development respects the context and is sympathetic in terms of form, scale, character, bulk, orientation and setback, fabric, colours and textures and does not mimic or adversely affect the significance of Heritage Items and Heritage Conservation Areas and their settings; to encourage a sustainable high quality of design for any new development in achieving compatibility with the heritage significance of individual Heritage Items and Heritage Conservation Areas; to provide controls for the development of land within the vicinity of Heritage Items and Heritage Conservation Areas. This document is not intended to inhibit genuinely innovative design solutions that meet the above aims and objectives and comply with the Design Principles of Part H of this Plan. If there is any inconsistency between these heritage controls (in Part H) and other guidelines in this Plan, the heritage controls will prevail."
Part H.1.3 Information Requirements outline what is required to be submitted with development applications for properties subject to cl 5.10 of the WLEP and Part H of the WDCP.
Part H.2.1 Planning and Design Principles seeks to ensure that new development respects and enhances the heritage significance of its context by considering the objectives and requirements set out under the following: • Setting • Scale • Massing and Form • Proportion • Detail
Part H.2.2 Design Elements provides for new infill development in heritage conservation areas with respect to the objectives and requirements set out, relevantly, under the following: • Roofs • Facades • Doors and Windows • Materials and colours • Fences • Garden elements, including pavements and driveways
Part H.2.3 Development of Corner Allotments within Heritage Conservation Areas states, in summary, that corner blocks have more significance in defining the character of an area as they are visible from two streets and so the following additional requirements apply: "Objective The corner block has more significance in defining the character of the area because it is visible from two streets and it is an important component in distant vistas. Therefore, additional specific guidelines are required to ensure that the characteristics of the Heritage Conservation Area are considered from both streets. Requirements i. The significant parts of the original house must be retained which include its main frontage and side frontage. Non sympathetic rear additions generally do not require retention; ii. The scale of additions and alterations are to respect the existing ridge or eaves heights; iii. Where additions are attached, detailing (including finishes and materials) are to be appropriate to the original; iv. Where additions are detached or infill development is proposed, contemporary solutions which respect the scale, bulk and detailing of the original without mimicry are preferred; v. Carparking must be located to the rear of the side frontage. Double garages forward of the building line are not acceptable; vi. Fencing to the side frontage must not exceed 1800mm in height; vii. Landscaping is required to both street boundaries, and a landscaping concept is required with the submission of a Development Application; and viii. New development or additions must be located to minimise impact on existing prominent trees."
Part H.2.6 Infill Development provides relevantly: "Objectives To ensure that infill development achieves a sympathetic relationship with either nearby Heritage Items or the Heritage Conservation Area of which it is a part in terms of its scale, massing, character, setback, orientation, materials and detailing. To ensure that infill development respects the established streetscape, and the patterns of development, including setbacks, siting, landscape settings, carparking, height, dominant ridge line and building envelope. Infill needs to display architectural "good manners" by respecting the significant characteristics of nearby and adjoining development. Requirements i. Infill can be contemporary in design however, the scale, form and detail of the infill must not detract from the scale, form, unity, cohesion and predominant character of the building and development (i.e. streetscape/landscape elements) around it; ii. Infill development in the vicinity of a Heritage Item must respect the visual curtilage of that item; iii. Infill development must not visually dominate, compete with or be incompatible with the scale (size, height and bulk) of existing buildings either on the site or in the vicinity of the proposal; iv. Infill development must be sited to correspond with the existing pattern of relationships between buildings and their sites. Front boundary setbacks are to be equivalent to those of neighbouring buildings. Side setbacks must be consistent with existing patterns; v. Infill design is to be integrated into the established character of the area and heritage buildings. Incorporating basic design elements such as the characteristic roof form and massing of the original development, proportions of windows, doors and verandahs; vi. Infill design must not visually dominate, compete with or be incompatible with the form of existing buildings of significance, either on the site or in the vicinity of heritage items; vii. New development must use materials and colours similar to or compatible with that of original buildings in the locality; viii. Contemporary kit/project designs which purport to be "heritage homes" are generally poorly integrated mixtures of design elements from different eras and do not fulfil the objectives for infill development in heritage conservation areas or adjacent to heritage items; and ix. For infill development in the Griffin Heritage Conservation Area the Management Policies and Controls for that Area are to apply, in particular the Griffin design principle of subordinating buildings to the natural landscape."
The Respondent also draws my attention to Attachment 2 - Design Principles for the Conservation of Environmental Heritage, which describes its purpose is to supplement the provisions of the WLEP and WDCP. Section 1.4 relates to Infill Development.
Section 1.4.1 - Filling the Gaps states, relevantly: "Infill development must achieve a sympathetic relationship with either nearby heritage items or the heritage conservation area. Infill needs to display architectural "good manners" by respecting the significant characteristics of nearby and adjoining development. …"
Section 1.4.2 - Imitation vs Sympathetic Design, provides relevantly: "New buildings in heritage conservation areas should understand the characteristics of the past as these resulted from specific historic parameters. Reinterpreting these characteristics in a way appropriate to the present allows one to appreciate the original work in its context, and not confuse the old with the new. The preferred approach is to design in a sympathetic but openly contemporary fashion to recognise existing patterns and to interpret them in a manner appropriate to the current social situation. Infill presents design constraints which often need special skill and ingenuity to be both contemporary and compatible. Infill can be openly contemporary in design when it is well integrated with and relates harmoniously to its older original neighbours. It is essential that the scale, form and detail of the infill does not detract from the scale, form, unity, cohesion and predominant character of the building and development (i.e. streetscape/landscape elements) around it: the particular sensitivity of the whole setting must be respected. …"
Section 1.4.3 contains principles more fully described under the following headings: a) character b) scale c) siting and setbacks d) form and massing e) proportion f) materials and colours g) characteristic design elements

The proposed development is compatible with the surrounding Inter-war flat buildings

The Applicant submits that the proposed development, being in an R3 zone that permits medium density development, and complies with both the maximum height of 12m under the WLEP and the FSR control under the SEPP ARH of 1.4:1 cannot be considered an overdevelopment.
Mr Burrell's evidence is that the character of the local area is predominated by single detached dwellings that contrasts starkly with the more immediate locality informed by the streetscape context of Elizabeth Street along which stand residential flat buildings that are 'cheek-by-jowl' with little deep soil, variable front setbacks and a mix of garaging or concrete hard stands to the rear setback addressing Valetta Lane.
Furthermore, as Elizabeth Street extends beyond the boundaries of the Artarmon HCA, the Brand Street apartments, being located immediately across Federation Lane from the site, form part of the visual catchment and present a 2-3m setback which is reduced when compared with the front setbacks of the Inter-War flat buildings inside the Artarmon HCA which range from 5-7.5m according to Mr Burrell.
In her oral evidence, Ms McMillan considered the transition in height between the Brand St apartments, the proposed development and the Inter-war flat buildings to be acceptable so long as the height of the lift overrun did not exceed the maximum height of 12m.
In Ms McMillan's opinion, the excessive length of the proposed development when measured along the dimension formed by Federation Lane, imposes a high level of visual intrusion that adversely impacts on the amenity of neighbouring properties.
As stated at [35], Ms McMillan considers the overall length of the proposal to be inconsistent, and so be incompatible, with the adjoining Inter-War flat buildings. However I accept the Applicant's submission that firstly, there is no numerical control or express requirement in the WDCP to limit wall length, and secondly, that the large central landscaped area to Federation Lane results in a form fronting Elizabeth Street that is similar in its footprint to that of its neighbour, No. 40 Elizabeth Street. Further I accept that the landscape courtyard to Federation Lane performs the function of visually separating the Elizabeth Street form from the form addressing Valetta Lane.
While I accept the opinion held by Mr Islam in Exhibit 3 that the proposed development would appear continuous when viewed from Elizabeth Street, this view is limited given the relatively narrow sightline afforded by the south eastern boundary. When the viewer is at the top of Federation Lane, the landscaped courtyard would serve to interrupt the frontage and reveal the development as discontinuous.
Additionally, the proposal steps down the site, with level changes at the rooftop level approximating a difference of around 6m between Elizabeth Street and Valetta Lane.
Furthermore, to the extent that the bridges connecting the two forms results in the continuity of form, I note that the bridges will only be visible when standing directly in front of the landscaped courtyard on Federation Lane, or from parts of Valetta Lane, or from No. 40 Elizabeth Street. For these reason, I do not consider the continuity will be generally perceived nor dominate in visual terms.
As the site occupies a corner allotment in a heritage conservation area, the relevant provisions of Part H.2.3 of the WDCP that relate to infill development require that: "Where…infill development is proposed, contemporary solutions which respect the scale, bulk and detailing of the original without mimicry are preferred."
I consider the proposed development, in separating the form of the building as described above, respects the scale and bulk of the original [Inter-war flats], and further respects the detailing of the local area by the choice of face brick as a predominant material.
I also consider that while the proposal presents as a taller element in the streetscape to its neighbours, compatibility is a different test to one of sameness, and the proposal is consistent with the objectives and requirements of Part H.2.6 of the WDCP as it respects the pattern of development set by the rhythm of the Inter-War flat buildings to the south of the site because of its similar scale, height and setback to that evident in the streetscape.
I do not consider the design to detract from the scale, form, unity, cohesion or predominant character of the streetscape in which it is proposed to sit, and because of the architect's material selection, design and detailing it does not visually dominate or compete with the existing Inter-War flat buildings to the south (Part 2.6(iii)) which are finished in similar materials (Part H.2.6(vii)).
Mr Islam objects to the flat roof on the Elizabeth Street frontage, stating in the joint report that it is not consistent with the character of the Artarmon HCA and the streetscape. In the alternative, Mr Patch considers the architectural expression to be consistent with the 'Inter-War Functionalist' style - a style he regards as being in the 'pantheon' of interwar styles, and examples of which are appended to the joint report.
While the Respondent contends that the style is more applicable and evident in buildings with a commercial use, I note that section 2.3.4 of the WDCP titled Attachment 2 - Design Principles for the Conservation of Environmental Heritage (Attachment 2, Design Principles) contains a summary of design characteristics common to the Inter-War Functionalist style that accord with Mr Patch's evidence, and I regard the use to which a building is put to be secondary when considering the character of the local area, given the propensity for use to change over time.
Of particular relevance, section 2.3.4 of Attachment 2, Design Principles identifies the traits of the Inter-War Functionalist architectural style as "an asymmetrical massing of simple geometric shapes and contrasting horizontal and vertical motifs…the horizontal "ribbon" window was a major stylistic change from the vertical openings of earlier styles. Glass bricks are also used…The roof is often concealed by a parapet…rounded corners".
As a number of the characteristics in section 2.3.4 are clearly evident in the proposal, I am satisfied, by reference to Council's own Design Principles, that the proposal displays sufficient traits that are consistent with the interwar period that appears in the description of the Artarmon HCA and so is compatible with the character of the local area as described in the WDCP.
As a related matter, cl 29(2)(b) requires that I consider whether the landscape treatment of the front setback is compatible with the streetscape in which the building is to be located.
I accept Mr Burrell's opinion that the streetscape embraces the Brand Street apartments beyond the borders of the Artarmon HCA and that the streetscape is varied, with low and high brick fences, and with large areas of lawn relieved by pathways.
The setback of the proposal's front landscape area to Elizabeth Street largely aligns to the dominant setback of the flat buildings to the south of the site, as required by Part H.2.6(iv). Furthermore, the treatment is consistent with the requirement of Part H.2.2(i) of the WDCP being, in my estimate, to achieve or exceed 70% of the area forward of the building line as soft landscape. Whether or not the landscape treatment is characterised by level changes, steps, lawn or planter beds is secondary, in my view, when considering compatibility.
For this reason, I consider the landscape treatment to be substantially compatible with the streetscape in which it is located and I regard the extent of incompatibility to be insufficient as would preclude a reason to refuse the grant of consent.
To the extent that an amendment is agreed to the front setback, I prefer the position shared by Mr Burrell and Mr Patch which balances the streetscape interface with that of the resident amenity and as contained in proposed Condition 4 (h) of Exhibit K. The alternative position put by Mr Islam preferences a visual sameness in the treatment of the front landscaped area at the expense of the amenity of residents of the site.

The effect of the proposed development on the Artarmon HCA

As the site is within the Artarmon HCA, the provisions of cl 5.10, relevantly, provide: (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Willoughby, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
Additionally, the Respondent submits that I must consider the aims of the WLEP which include, relevantly at cl 1.2(2)(i): (i) for heritage - to conserve items of environmental and cultural heritage and to retain the character of heritage conservation areas,
The extent of the Artarmon HCA encompasses shops to the west of the rail corridor on Hamden Road, the shops in the Wilkes Avenue plaza, residential flat buildings to Elizabeth Street and a large area of single and two-storey detached dwellings.
The parties dispute the contribution made by the interwar flats on Elizabeth Street, and the consequential impact of the proposal on the heritage significance of the Artarmon HCA.
The Statement of Significance, found at Part H.3.2 of the WDCP is as follows: "The Heritage Conservation Area is outstanding for its intactness, with few unsympathetic intrusions occurring. The wide range of largely intact California and Interwar bungalows as well as Federation housing in generally good condition, occur in either groupings of consistent styles or subtle blends of successive periods to produce a mix of interesting and varied streetscapes. The area is significant as a harmonious and unified 1910 - 1920's lower North Shore residential area whose development relates to the development of the railway."
Mr Islam considers the flats to be contributory to the significance given their association with the development of the rail corridor and relies on the following excerpt from the description of the Artarmon HCA found at Part H3.2 of the WDCP: "The denser pattern of settlement near Artarmon Station is a good example of Interwar flat development providing comfortable housing that is well integrated with nearby public transport and commercial opportunities…"
Furthermore, a reference in the Statement of Significance suggests to Mr Islam that the flats are integral to the Artarmon HCA given their relationship to the development of the rail corridor: "The area is significant as a harmonious and unified 1910-1920's lower North Shore residential area whose development relates to the development of the railway."
In Mr Islam's opinion, the term "residential area" is intended to capture all forms of residential development, including the interwar flats.
Conversely, Mr Patch for the Applicant considers it relevant that the Inter-War flat buildings are not expressly referred to in the Statement of Significance as they are generally of a later period - being constructed between the 1930's and as late as the 1950's. Furthermore, as the site itself sits on the edge of the Artarmon HCA, adjoins the Brand Street apartments, Mr Patch is of the opinion that the effect of the proposed development on the Artarmon HCA is not adverse, but instead will be positive.
For the reasons that follow, I prefer the analysis of Mr Patch, and I am satisfied that the proposed development will have a positive effect on the Artarmon HCA: 1. Firstly, I accept that the Inter-War flat buildings are generally of a later period than the date range identified in the Statement of Significance, moderating the contribution they make to the Artarmon HCA. 2. Secondly, I do not accept Mr Islam's adoption of the general term 'residential area' as necessarily referencing the Inter-War flat buildings. It reads consistently with the text of the Statement of Significance for the reference to be directed to the single detached dwellings which could equally relate to the development of the railway in the date range stated. In my view, Mr Islam may be inadvertently conflating the proximity of the Inter-War flat buildings to the railway station, with the reference to the relevance of the railway development that occurred in the 1910-1920's - a period that pre-dates the Inter-War flat buildings. 3. Thirdly, the controls for future development (Exhibit 1, Folio 530) is titled 'Artarmon R2 Residential' and all references thereafter appear to relate to single storey, detached dwellings. The Inter-War flat buildings, and the subject site, are not in an R2 zone.
I also consider my earlier finding at [69] to support this conclusion.

Amenity Impacts

Ms McMillan considers the extent of excavation required for the development will impose adverse amenity impacts on neighbouring properties such as No. 40 Elizabeth Street, and on the future residents of Units 1, 2, 7 and 8.
The aims of the WLEP provide, relevantly, at cl 1.2(2): (e) for amenity - (i) to maintain and enhance the existing amenity of the local community, and (ii) to reduce adverse impacts from development on adjoining or nearby residential properties,

The excavation will not have a detrimental impact

Clause 6.2 of the WLEP is in the following terms: 6.2 Earthworks (1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. (2) Development consent is required for earthworks unless - (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to other development for which development consent has been given. (3) Before granting development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
In her evidence, Ms McMillan estimates that around 3700m3 of material will be excavated. This is a greater volume than estimated by the architect, Mr Keith Pike, in the Construction and Waste Management Plan (Exhibit B, Tab 9) dated August 2019.
The Applicant submits that the under-estimation by the architect is inadvertent and was an earlier calculation that has failed to be updated following the preparation of amended plans.
Subclause 6.2(3) contains matters that must be considered before the grant of consent. For the reasons that follow, I am satisfied that the earthworks will not have a detrimental impact on the environment, or on residents once construction is complete: 1. The extent of excavation is partly explained by the steep slope on the site between Elizabeth Street and Valetta Lane. The further the excavation is required in from the proposed basement entrance on Valetta Lane, the greater the depth of material required to be removed. 2. The Stormwater plans (Exhibit B, Tab 12) indicate drainage and detention of stormwater, and provides for an interface with structural piles. 3. The Statement of Environmental Effects (Exhibit B, Tab 3, page 6) considers the matter of site contamination in relation to the site's history and, at page 16, considers the proximity and effect on the water table. 4. While the excavation extends to the north and south boundaries of the site, it does so at the basement level for purposes of providing the required parking for cars, bicycles and motorcycles, plant and the like. Above this, excavation provides open and ventilated access to lower levels of the proposed development which has the effect of mitigating the extent of subterranean accommodation. 5. A sediment and erosion plan is found in the Stormwater plans which should mitigate the impact of excavation beyond the site. Additionally, the side setbacks, and proposed landscaping along the southern boundary minimises the impact of the excavation once construction is completed. 6. While the excavation results in a basement level that is around 10m below the highest point of the site boundary, at the intersection of Federation Lane and Elizabeth Street, the design of the front setback is such that it results in a depth of 4.2m of the excavation being within what parties refer to as the 'tiered garden'. Consequently, 6m of the excavation is for the purpose of the basement carpark, laundry, plant and storage which I consider to be a reasonable location for these functions.

The internal amenity of units is not unreasonable

Ms McMillan is of the opinion that the internal amenity of Units 1, 2, 7 and 8 is sub-optimal as those units are below the level of the street, and so will feel enclosed, and not receive adequate sunlight or cross-ventilation.
Mr Burrell considers that firstly, there is no standard in the SEPP ARH that relates to natural daylight or cross ventilation. Secondly, while the WLEP does not state that boarding house development is subject to the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), or to the related provisions of the Apartment Design Guide (ADG), Mr Burrell has undertaken an assessment of the sunlight received by all of the Units in the proposed development.
The result of this assessment is that 90% of habitable rooms receive 3 hours of sunlight, exceeding the requirement set out in Part 4A of the ADG which requires 70% of apartments to receive a minimum of 2 hours direct sunlight.
Furthermore, Mr Burrell notes in the joint report that the ADG permits a maximum of 15% of apartments to receive no direct sunlight and on this basis the proposal exceeds what the ADG regards as an acceptable outcome as all apartments do receive direct sunlight. Unit 2 receives the least amount of sunlight, with a total of 1.5 hours received on 21 June (Exhibit G).
Diagrams prepared by the architect confirm that 90% of all rooms will be naturally cross ventilated, which Mr Burrell notes is in excess of the requirement at Part 4B of the ADG for at least 60% of apartments to be naturally cross-ventilated.
I accept Mr Burrell's assessment which is aided by detailed 3-dimensional images prepared by the architect to assist in understanding the likely penetration of daylight in to Units. In arriving at my conclusion, I note that the windows shown to all units are generously sized in width and height, with sections likely to be both fixed and openable.
As a result, I am satisfied that the rooms will not feel enclosed, will receive adequate daylight and be pleasant, given the orientation of the site and the design of the building to be generally along the northern orientation.
For the reasons that precede, I find that the proposal is compatible with the character of the local area, will have a positive effect on the Artarmon HCA, and not adversely impact on neighbouring properties, or upon future residents.
However, as the site is within 25m of the Sydney Trains T1 North Shore line railway corridor, cl 86(1) of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) requires that the consent authority, or the Court on appeal, must not grant consent to development without the concurrence of the rail authority for the rail corridor. In a letter contained at Exhibit 1, Tab 17, Sydney Trains grants concurrence subject to terms with which the parties agree, and which form part of the Conditions of Consent at Exhibit K.
I am also satisfied, on the basis of the Acoustic DA Assessment report prepared by Acouras Consultancy dated 2 April 2019 (Exhibit B, Tab 4) that appropriate measures have been taken in relation to the provisions of cl 87 of the SEPP Infrastructure which require that certain sound levels are not exceeded.
At the close of the proceedings, the parties agreed that, as the Respondent's arborist was on leave, the Court should make orders to the following effect: 1. Council is to confirm whether the conditions satisfactorily address its concerns relating to the Applicant's arborist's report by 3 February 2020, and if so, it is to advise the Court and the Applicant by 3 February 2020. 2. If it doesn't satisfactorily address concerns the Council is to advise the Applicant and the Court by 3 February 2020. 3. The parties are to provide to the Court consolidated agreed conditions (or to the extent of disagreement, identify what is not agreed and reasons why) by 3 February 2020.
In general accordance with the terms of my directions at [102], the parties provided me with finally agreed conditions of consent on 5 February 2020 that resolved the matter at [102(1)]. As a result, and in accordance with my findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for Development Application No. 2018/185 seeking demolition of existing structures at 42-44 Elizabeth Street, Artarmon and construction of a 20 room boarding house with basement parking for 11 cars, subject to the conditions at Annexure 'A'. 3. All Exhibits are returned, except for Exhibits A, B, J and 6.

Commissioner of the Court Annexure A (357 KB) Plans (2.53 MB)

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