Revelop Projects Pty Ltd v Parramatta City Council

Land and Environment Court (NSW)|2013-02-19

Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10918 of 2012

Judgment 1Revelop Projects Pty Ltd lodged Development Application DA/109/2012 with Parramatta City Council on 24 February 2012, seeking consent to consolidate and re-subdivide three adjoining allotments into two allotments, demolish two existing dwellings and construct a 2 storey boarding house on one of the allotments. The council refused consent and Revelop is appealing that decision. 2The contentions in the case are whether or not the design of the proposed development is compatible with it the character of the local area, whether the development is consistent with the relevant state and council planning controls contained within a state environmental planning policy and the council's local environmental plan and development control plan or is in the public interest due to the number of objections received.

The site 3The site comprises three adjoining allotments comprising lots 66, 67 and 68 in Deposited Plan 16170 and known as Nos 45-49 Spurway Street, Ermington. Each lot has a frontage of 12.19 m to Spurway Street, depth of 45.725m and site area of 557.39sqm. Each individual allotment currently contains a single storey dwelling house and ancillary structures. 4Victoria Road is approximately 200m to the north of the site and a local shopping centre is located on the western corner of Spurway Street and Victoria Road. 5Development to the south of the centre and the north of the site primarily comprises single storey dwelling houses. A newer two storey dwelling has been constructed to the south-west of the site on the opposite side of the road and one allotment, also 12.19m wide, separates the site from the Rydalmere East Public School. A local park, Tristam Reserve is located to the south-west of the site.

The planning controls 6The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2011 (LEP). Subdivision of land and boarding houses are permitted with consent in the R2 zone. The relevant objective of the R2 zone is: + To provide for the housing needs of the community within a low density residential environment. 7Clauses 4.3 - Height of Buildings and 4.4 - Floor space ratio (FSR) contain development standards and, those that apply to the site are a maximum height of 9m and a maximum FSR of 0.5:1. 8Parramatta Development Control Plan 2011 (DCP) also applies to the site and relevant provisions are contained in Parts 2 - Site Planning, 3 - Development Principles and 5 - Other Provisions, specifically 5.1 Boarding Houses. 9Despite a boarding house being permitted with consent under the LEP, the application was lodged under the provsiions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). 10Division 3 of SEPPARH applies to boarding houses and permits development of a boarding house on land within the R2 zone provided that land is within an accessible area. It is common ground that the site is within an accessible area for the purposes of the policy. 11Clause 29 contains standards, which if met, cannot be used to refuse consent. These include building height, landscaped area, solar access, private open space, parking and accommodation size. 12Clause 30 states that consent must not be granted to development unless it is satisfied that certain criteria are met. These relate to the provision of a communal living room, bicycle and motorcycle parking, adequate bathroom and kitchen facilities and in cases where more than 20 boarding rooms are provided an on-site manager and limit the size of rooms and number of lodgers. 13Clause 30A requires that consent must not be granted unless the consent authority has taken into consideration whether the design of the development is compatible with the character of the local area.

Background and the proposal 14The matter commenced as a conciliation conference before the Senior Commissioner. That conference was terminated and the matter listed for hearing however, as a result of discussions held during the conciliation phase, the applicant developed amended plans in an attempt to narrow the issues in dispute. Leave was granted to rely on those plans, the Amendment E plans on 21 November 2012. 15The applicant made further amendments to the plans following the joint conference between the planning experts and was granted leave to rely on those plans, the Amendment H plans, during the hearing. The changes made relate to the proposed boarding house component of the application. 16The development proposes consolidation of lots 66-68 into one allotment and re-subdivision of that lot into two lots, Lots X and Y. Proposed lot X, the northern allotment, would have a frontage of 18.706m, rear boundary of 18.724m and site area of 855.7sqm. Proposed lot Y would have a frontage of 17.866m, rear boundary of 17.848m and area of 816.5sqm. Each allotment would have a depth of 45.725m. 17It is proposed to demolish the existing dwelling houses contained on lots 66 and 67 and erect a boarding house on Lot X. The existing dwelling on Lot 68 would be retained on the enlarged Lot Y. The boarding house would contain 12 rooms and accommodate 18 lodgers. 18The proposed boarding house would be erected on an alignment of 7.789m to Spurway Street; 3.0m (front portion) and 3.481m (rear portion) from the northern side boundary and 4.055m (front) and 4.523m (rear) from the southern boundary. Setback from the rear property boundary varies from 11.117m to 11.253m. 19The building is designed as two attached components separated by a staircase and passageway that provide access to the first floor common area and room 12. The front portion of the building comprises a two-car garage and an accessible room (room 1) on the ground floor and the common room and room 12 above. 20The rear component comprises 10 two-storey boarding rooms, each with individual access points. Rooms 2-6 are north facing and accessed from a pathway that runs along the northern side of the building and rooms 7-11 are south facing and accessed off a second pathway located between the building and a landscaped area adjacent to the southern boundary. Each pathway connects to the rear communal open space, which is accessed by a ramp as it is cut into the site so as to also function as a detention basin. 21Rooms 2-11 have an identical design with a kitchenette, WC and living/dining area on the ground floor and bedroom and bathroom on the first floor. Individual internal stairways link each floor of each room. Rooms 1 and 12 contain similar facilities but are single level. Highlight windows are incorporated into the upper floors to address overlooking and four skylights and a louvred glass wall are proposed to allow solar penetration into the common room. Two balconies address the street, one off the common room and the second around the living area of room 12. The front façade of the building has been designed to appear as a detached two storey dwelling house. 22The rear portion of the building is recessed behind the front component with a 465mm setback on either side at the upper level that is cantilevered over the lower floor that is setback a further 735mm. Four fin walls extend beyond the face of the side walls and two small recessed areas are provided at the upper level in an attempt to articulate the side elevation of the building. 23The front setback area comprises two pedestrian entry paths with entry features that incorporate mailboxes, an accessible parking space and wide driveway that services that space, the garage and two motorcycle parking spaces to the south of the garage. Landscaped areas run across the front of the accessible parking bay and in an area between the southern pathway and driveway area. Bicycle storage areas are provided adjacent to each side pathway and a bin bay adjacent to the southern boundary. 24The council had notified the original application and the Amendment E plans and received a significant number of objections including a petition containing 645 signatures in response to the original proposal and a number of form letters and individual objections to the amended plans. The council refused the application despite it being recommended for approval by its officers. The grounds of refusal form the basis of the contentions.

The evidence 25The hearing commenced on site with evidence heard from two objectors to the application. The issues raised are similar to those contained within the objections lodged with the council and are summarised as follows:

Inadequate carparking as street is narrow with parking restrictions and only two parking spaces and one accessible space are proposed for 12 boarding rooms with an unspecified number of lodgers;
Safety issues associated with traffic, particularly during school time;
Development is incompatible with the character of the area;
Development is inconsistent with the current tenancy profile of the neighbourhood which is predominantly occupied by families;
Concerned a second boarding house will be erected on Lot Y;
Inconsistent with the council's planning controls;
Noise during construction;
Area is zoned low density and it should stay that way;
Loss of amenity and property value. 26Expert town planning evidence was heard from Mr A Byrnes for the applicant and Mr G Turrisi for the council. 27The experts agree that the Amendment H plans, which incorporate an additional skylight and glass wall to the eastern end of the common room, provide adequate solar access to that room so as to satisfy the requirement of clause 29(2)(c) of SEPPARH and therefore resolve that contention. 28They also agree that the development complies with all of the relevant standards contained in clause 29 of SEPPARH (cannot be used to refuse consent) including parking and that the standards contained in clause 30 (standards for boarding houses) are also met. They agree that the occupancy of the development should not exceed 18 lodgers and agreed consent conditions have been prepared to reflect that requirement. That is despite the council's DCP limiting boarding houses in R2 zones to 12 rooms with a maximum of 12 lodgers. 29The other controls contained within the DCP that are met are front and side setbacks, deep soil zone, landscaped areas and minimum allotment size. The control for rear setback is not met with the DCP requiring a setback of 30% of the site depth, in this case a setback of 13.717m is required and 11.117/11.253m is proposed, a deficiency of between 2.464m and 2.6m. 30Mr Byrnes says that the non-compliance with the rear setback is not inconsistent with the character of the area because there are a number of detached garages currently constructed within the rear yards of dwellings in the local area and these encroach within the area required under the numerical control. He says that despite that control not being met, the objectives of the control, which are to provide for adequate areas of private open space and landscaping, are met. 31The experts disagree as to whether the design of development is compatible with the character of the local area and consistent with the council's planning controls where those controls are not inconsistent with the provisions of SEPPARH. 32Mr Turrisi says that the local area against which the application should be assessed under clause 30A of SEPPARH is limited to that area on the eastern side of Spurway Street, through to Mailing Street between Ermington Lane and the school as this area has a consistent pattern of subdivision and building rhythm. 33Mr Byrnes says that the local area is its visual catchment and therefore includes both sides of Spurway Street from Victoria Road to the crest of the road at the intersection with Coffey Street but also needs to go beyond that are in terms of assessing the form of redevelopment that is occurring in the area so includes Coffey and Tristram Streets. 34Mr Turrisi says that the proposed built form along the side boundaries will be viewed from the street due to the proposed setbacks and given the lack of articulation along these side boundaries, the proposal will reinforce the double allotment appearance and provide for a building that is of a mass and form inconsistent with the character of the area. Mr Byrnes says that the incorporation of protruding fin walls, horizontal articulation between floors, roof placement, negative recesses/doors and use of different materials results in a highly articulated building. 35Mr Turrisi acknowledged the presence of these building elements but considers they are insufficient in addressing his concerns and that the building would be read as a whole from the street adding to building bulk. He had suggested the option of stepping the room modules in the rear section of the building on a staggered/sawtooth arrangement to improve articulation however this suggestion has not been incorporated into the Amendment H plans. For that reason and reasons above, he says that the design of the development is not compatible with the character of the local area. 36Mr Byrnes disagreed and says the development is compatible and that the suggested articulation would be inconsistent with the existing character. 37Both experts agreed that the desired future character (DFC) of the area, as determined from the controls contained within the LEP and DCP was a relevant consideration in determining compatibility. Mr Turrisi said that it is not just about the numerical controls, it's about the contextual fit and impacts of a proposal. He says the R2 zone is the lowest density zone where there is a greater emphasis on dwelling houses and dual occupancies with a need to look at built form, lot patterns, permitted uses and how it fits in context. Mr Byrnes says that the LEP sets a vision in terms of heights, lot widths and envisages boarding houses being part of the development occurring in the R2 zone.

The conditions 38The parties provided draft consent conditions, which were agreed with the exception of conditions 99, 127 and 128. Mr Seton, for the council, conceded that conditions 99 and 127 have the same intent and only one would be necessary. The intent of the conditions is to require the registration of a covenant on the land to ensure that the use of the building is for the purposes of a boarding house only. He says that it is a condition that the council would like imposed but could not cite any authority that assisted the Court in the matter. Mr Arch, for the applicant opposed the imposition of the condition stating that the consent, if granted, would authorise use of the building for the purpose of a boarding house only and that any change of use would require development consent. He submits the condition is unnecessary. 39Condition 128 seeks to impose limits on the rental paid by lodgers to that used by the Office of State Revenue in determining land tax exemptions where land is used for boarding houses. Mr Seton advised that the condition was recommended by the Council's Community Services section to ensure that the boarding house provided affordable housing. Mr Arch submits that it is a matter for his client whether it sought the exemptions offered by the state government and objected to the condition.

Conclusions and findings 40At the conclusion of the hearing, it was common ground that the changes made through the Amendment H plans achieved compliance with all of the controls contained in clauses 29 and 30 of SEPPARH. It is important to note, in relation to the evidence provided by residents of the local area that this includes compliance with the parking requirement and that because three parking spaces are provided, parking is not a matter on which consent can be refused. 41I accept their concerns that Spurway Street, in the vicinity of the site is narrow and provides limited on-street parking due to the location of bus stops, pedestrian thresholds and other parking restrictions however, there is no evidence that the traffic generated by the proposal is such that the road system is inadequate to accommodate that volume in a safe manner. 42Clause 30A of SEPPARH is a precondition to a consent authority exercising the power to grant consent and in this regard, the Court must take into consideration whether the design of the development is compatible with the character of the local area. Firstly, it is necessary to determine the local area. I agree with Mr Byrnes that the local area includes both sides of Spurway Street and that the visual catchment is the minimum area to be considered in determining compatibility. Whilst the lot widths on each side of the road vary, the difference is not significant and the built form is similar, particularly in relation to siting of dwelling houses, the provision of side driveways and the presence of garages and ancillary structures within the rear yards. 43The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are: 22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?....... 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character........ 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials. 44In this case, I consider that it is also important to assess the matter against the existing and DFC of the local area. I am satisfied that the plans now before the Court have addressed the essential elements of the local area and that whilst there are wider setbacks on both sides of the proposed boarding house building, those setbacks are consistent with the rhythm of setbacks in the street created by the side driveways and varied side boundary setbacks. 45It is apparent from the aerial photographs tendered as Exhibit 4, that many of the original dwellings have been extended and that those extensions encroach into the 30% rear setback area. I accept that these additions are single storey and therefore do not add to the visual bulk of the building when viewed from Spurway Street however, the extent of hardstand areas and structures does not provide for the achievement of the landscape open space objectives. The development proposal does achieve those objectives without having any adverse amenity impacts on adjoining properties in terms of visual privacy, overlooking and overshadowing despite its 2 storey nature. I do not accept Mr Byrne's proposition that the side walls are highly articulated however, they do not need to be. Mr Turrisi's suggestion of additional articulation is unnecessary as it could ad to the bulk of the building and would be inconsistent with the character of the existing dwelling in the local area. 46I note that there are no physical impacts that are in contention. 47For these reasons, I consider the design of the development is compatible with the character of the local area. 48I am satisfied that the development achieves the objectives contained within the DCP and provides for the housing needs of the community within a low density residential environment, consistent with the objectives of the R2 zone. 49The conditions sought to be imposed by the council that require registration of a restrictive covenant have been the subject of review by this Court. Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215, supports Mr Arch's proposition that it is unnecessary and inappropriate to impose a condition requiring a restrictive covenant in some circumstances. I agree that the provisions of the LEP are such that any change of use of the building would require consent and therefore do not consider the restrictive covenant provisions contained in conditions 99 or 127 are necessary however, it is appropraite to specify the use of the building and its purpose as a boarding house. 50I also agree that it is a matter for the applicant whether it exercises its ability to obtain land tax exemptions and therefore link tariffs to those specific fees. Whilst it is important to ensure that the aims of SEPPARH are met, the policy does not contain any provisions in relation to boarding houses that limit tariffs whereas there are requirements that require infill development and supporting accommodation to provide affordable housing and the registration of a covenant to ensure compliance. In this case, market forces will determine the tariffs paid by lodgers and I do not consider that it is necessary that these tariffs should be linked to those set by the Office of State Revenue when assessing land tax. 51For the reasons stated above, I consider that the application merits consent subject to the agreed conditions with the exception of conditions 99, 127 and 128, two are deleted in full and the other amended to require the use of the building at all times to be for the purpose of a boarding house. 52The Orders of the Court are: (1)The appeal is upheld. (2)Development Application DA/109/2012 for the consolidation and re-subdivision of three adjoining allotments into two allotments, demolition of two dwelling houses and construction of a 2 storey boarding house on one of the allotments is approved subject to the conditions in Annexure 'A'. (3)The exhibits, other than exhibits 2 and A are returned.

Sue Morris Commissioner of the Court Annexure 'A'

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: 22 February 2013

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