Rock Block Investments Pty Limited ATF Armgree Unit Trust v Parramatta City Council

The site

1. The subject property is described as: Lot A DP 321508, Lot B DP 108782 and Lot C DP 108782. There is currently a corner shop on 157 William Street and a single storey dwelling and ancillary structures on 161 William Street.
2. The site (after lot consolidation) would form a regular shaped corner allotment located on the northern side of the intersection between Woodville Road and William Street, Granville. It has a total area of 1968.8 sq m with a 46.885 m frontage along William Street and a 41.495 m frontage (plus 3.39m splay) along Woodville Road.
3. The site is surrounded by a mix of development types. To the east along William Street, development primarily consists of residential, commercial and educational developments. Along Woodville Road, development consists predominantly of low density residential development.

Planning controls

1. The following planning controls apply: 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 ("Affordable Rental Housing SEPP"). 1. The aims of this SEPP are: 1. to provide a consistent planning regime for the provision of affordable rental housing, 2. to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, 3. to facilitate the retention and mitigate the loss of existing affordable rental housing, 4. to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, 5. to facilitate an expanded role for not-for-profit-providers of affordable rental housing, 6. to support local business centres by providing affordable rental housing for workers close to places of work, 7. to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation (ii) Clause 29 provides standards that cannot be used to refuse a development. Clause 30A requires consideration of whether the design of the development is compatible with the character of the area 1. Parramatta Local Environment Plan 2011 ("PLEP 2011"); 1. Under this PLEP the site known as Lot A DP 321508 is zoned B1 Neighbourhood Centre. A maximum floor space ratio of 1.5:1 applies to this site, along with a maximum building height of 12 m. 2. The sites known as Lot B DP 108782 and Lot C DP 108782 are zoned R2 Low Density Residential Zone under the provisions of PLEP 2011. A maximum floor space ratio of 0.5:1 applies to these sites, along with a maximum building height of 9 m. 3. The proposed development is defined as a 'boarding house' under PLEP 2011 and is permissible with consent in the B1 and R2 Zones. 4. The Zone B1 objectives are: * To provide for the housing needs of the community within a low density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. * To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 1. Clause 4.4 FSR development standard. The objectives of this clause are: 1. to regulate density of development and generation of vehicular and pedestrian traffic, 2. to provide a transition in built form and land use intensity within the area covered by this Plan, 3. to require the bulk and scale of future buildings to have regard to heritage sites and their settings, 4. to reinforce and respect the existing character and scale of low density residential areas. 1. Parramatta Development Control Plan 2011 ("DCP 2011"); The development is subject to the requirements of DCP 2011 which came into force on 12 October 2011. 2. State Environmental Planning Policy (Building Sustainabilitv Index: BASIX) 2004 ("BASIX SEPP").

The evidence

1. Detailed evidence was presented in joint expert reports (Exhibits 4 and 7) by:

• Mr G Baker; Council's consulting urban design consultant,
• Ms A McCabe; Applicant's consulting planner.

1. The experts initially agreed that the key issues in this matter concern the bulk and scale of the proposal together with its compatibility with the character and streetscape of the local area. Apart from the joint reports, the Applicant submitted a clause 4.6 written request dealing with the variation to the FSR development standard in cl 4.4 of PLEP.

Floor space ratio

1. These issues arise because of the different scale of development permitted in the adjoining zones. A higher FSR of 1.5:1 is permitted on the corner Lot A, whereas a reduced FSR of 0.5:1 is permitted on the other residential lots. Accordingly the planners agreed on the following calculations. Site Area Permitted GFA Permitted FSR Proposed GFA Proposed FSR Lot A 603.8m2 905.7m2 1.5:1 541m1 0.89:1 Lot B 607.0m2 303.5m2 0.5:1 654m2 1.07:1 Lot C 758.8m2 379.4m2 0.5:1 248m2 0.32:1 Total 1,969.6m2 1,588.6m2 0.806:1* 1,443m2 0.73:1

• Note: Permitted GFA over combined site area.

1. Ms McCabe says that it is reasonable to consider the site as a whole, notwithstanding the dual zonings and controls, and different uses supported by the site. She supports this application on the basis of a separate Clause 46 variation and the following merits:

• As illustrated in the aforementioned Table, the overall FSR and commensurate gross floor area in numerical terms across the development site is less than what is strictly permitted. It is in the order of 145 sq m less than what could reasonably be anticipated on the site. While the FSR on Lot B is in excess of the PLEP 2011 controls, the FSR on Lots A and C is actually below.
• Notably, the form and scale of development that could reasonably occur on Lot C - a lot that carries the same zoning as the adjoining lots to the north and east - is less than what could be permitted on site. The proposed built form is setback further than the existing dwelling currently on the site. The existing dwelling on Lot C projects further past the rear alignment of the dwelling at No. 155 William Street.
• The resultant FSR on Lot B does not result in overshadowing or overlooking impacts to adjoining development. This is demonstrated in the shadow diagrams, setbacks and orientation of the building.
• The two (2) storey building form proposed on the site is commensurate and compatible with a two (2) storey scale of buildings anticipated by the controls in the adjoining R2 Low Density Residential area. The maximum height of building development standard applicable to the site is 9 m. The proposed development complies with the control across the whole of the site.

1. In further support of the proposal, Ms McCabe also considers the proposed building setbacks achieve reasonable consistency with the adjoining buildings in the streets. She says that the overall intensity of use is less than that which would be permitted under the combination of controls applying to the site. Accordingly, the allocation of additional FSR to the centre of the site has afforded the opportunity to provide a satisfactory transition to the rear yards of the residential zoned sites to the immediate north and east. This provides open areas and existing rear yards, and landscaped spaces to be contiguous.
2. Also, the proposal provides for a lesser scale and a more residential typology of development fronting Woodville Road that reflects the residential forms of surrounding development. The proposed setbacks to Woodville Road at the corner are consistent with the setbacks of existing buildings and the proposed building to both Woodville Road and William Street. The setbacks at the corner reflects the two (2) buildings on the opposite corners both of which are located close to the street boundary.
3. Against this, Mr Baker initially said that the proposal did not achieve a reasonable degree of compatibility with the local area that comprises predominantly detached one storey dwellings, and to a lesser extent two storey, dwellings, but also the educational institutions (Granville Public School, College and TAFE; Holy Trinity Primary School; and Delaney College) and a single medium density residential development diagonally opposite the site.
4. According to Mr Baker, the proposal does not accord with the pattern of proposed future development as defined by Council's planning instruments where the intention of the zoning is clearly to maintain the low density residential character of the area with provision for a small quantum of locally focussed uses such as shops and community services.
5. Mr Baker also says that

• Design Principle P8 of Clause 5.1.4 of the DCP states: If the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street is to be used for residential purposes. The B1 zoning on Lot A is for primarily commercial purposes and the proposal fails to meet this requirement.
• Although it is a permitted use (with consent) in both zones, the proposed boarding house, primarily because of its scale, does not fit within the pattern of development envisaged by the development controls.
• Of particular concern is the proposed intensity of development on Lot B, where the density being sought is more than twice that of the permitted 0.5:1. By contrast Lot A is to utilise only slightly more than half of its permitted FSR of 1.5:1. The proposed density profile reverses the zoning. Whereas the planning controls appropriately have the greater density on Woodville Road, the Applicant seeks to shift the greater bulk away from the major road and towards the adjoining residential neighbourhood. The shifting of floor space away from Woodville Road and towards the neighbours contravenes Council's basic planning controls and constitutes poor urban design.

1. Mr Baker's main concern was that the residential type or form is not that of a single detached dwellings, which is the predominant built form in the context, nor that typically expected under the applicable controls. At its larger scale, the proposal most nearly approaches the form and appearance of a residential flat building or hotel, in that there is only one entrance for all the accommodation in the building and the "egg-crate" treatment of the facades is suggestive of small, multiple accommodation cells.
2. From the cross examination of the planners, it was apparent that Mr Baker's main concern was with the continuous length of buildings fronting William Street and the associated entrance to the development, which he did not consider was compatible with the character of the area.
3. Consequently, during the adjournment of the matter, the Applicant submitted amended plans, which responded to these concerns and they are in Exhibit F. The amendments include a 3m ("gap") between Unit 18 and the lounge area to break up the continuous façade along William Street, a minor reduction in the FSR on Lot B to 1:1, resulting in an overall FSR of 0.7:1 across the whole of the site and the landscaped area has increased to 38.7%.
4. These amendments have been reviewed by the planners and Ms McCabe says that the changes provide an improved presentation to the street and does not result in unreasonable impacts upon immediately adjoining properties to the east, particularly given the setback of built form to the common boundary. Notably the bulk of the building on Lot B that is visible from the properties to the east is setback some 19.25m from the common boundary and she considers it demonstrates reasonable compliance with the relevant controls.
5. Mr Baker's assessment is that the amendments provide a deep 3m wide recess in the building on both levels. This recess continues through the roof so that the portion of the building to the east would appear as a separate mass in oblique views from William Street. Whilst the amendments apparently do not completely eliminate his concerns in relation to the excessive bulk and scale of the proposal in relation to the neighbours to the east on William Street, he says they are clearly an improvement in this regard. However, he does not go as far as saying the amended plans should be refused.

Clause 4.6 written request

1. Insofar as there was some discussion about the necessity to consider a Clause 4.6 request for variation of the FSR development standard because of the likely overriding effect of the Affordable Housing SEPP, nevertheless it has been considered.
2. The consideration of a Clause 4.6 written request imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the FSR standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
3. Accordingly, the cl 4.6 written request response to the preconditions provides: (1) Zone objectives consistency: ● The proposed development provides a much needed form of housing that is compatible with the surrounding low density residential environment. ● The proposal does not include uses other than residential. (2) FSR objectives consistency: ● The density of the overall development, given the location of the built form is compatible with surrounding development. The traffic generated by this development because of the use, location of the site adjoining a busy arterial road, is less than that that would occur if the site was developed for the uses permitted in the B1 zone applying to the one third of the site. In this case, the density of development is not directly attributed to traffic movement. ● The provisions of SEPP (Affordable Rental Housing) 2009 also contemplate an FSR of greater density than those in Council's controls, subject to being compatible with the character of the area. ● The allocation of additional FSR to the middle of the site has provided for the opportunity to provide a transition in the rear yards of the sites to the north and east, so that open areas and rear yards are contiguous with adjoining open space areas. It has also allowed for a lesser and more contained development along the Williams Street frontage and the site adjoining No.155 William Street. ● The development provides a transition to lower scale form along William Street. ● The subject site and adjoining sites are not heritage items. The nearest heritage item is to the east along William Street on the opposite side of the road. ● The scale and form of the development reflects the form of development surrounding what is a combination of detached dwellings, mixed use and townhouse forms. The scale, setback and landscape setting are also reflective and compatible with immediately adjoining development. ● The typology is a typical town house form, the bulk and scale of which has been articulated. The two (2) storey scale is typical of both existing and future development. (3) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (i) A development that strictly complies with the FSR standard of 0.5:1 is unreasonable or unnecessary in this circumstance for the following reasons: ● The average FSR across the three (3) sites is 0.73:1. ● A development that complied would result in a smaller development footprint on part of the lot and potentially a greater footprint on the lot adjoining No. 155 William Street and to Woodville Road. ● The form and scale, layouts and setbacks respond to the broader context of the site and the predominately residential form (ii) The variation to the FSR standard on Lot B provides for the opportunity to provide lesser FSR on the other two (2) lots that comprise the development site. (iii) The allocation of FSR on to Lot B has located the portion of the building central to the site where the apparent bulk and scale of the building is not able to be readily perceived from the street. (iv) The split zone and differentiation in FSR across the development site unnecessarily restricts the built form outcome if compliance were to be achieved. (v) By varying the FSR on Lot B, means that Lot C can support a lesser built form and maintain open areas to the rear of adjoining residential buildings. (vi) The reallocation of FSR means that a more residential form can be accommodated and supported by the site, especially along the Woodville Road frontage at a lesser height and FSR than what that site could reasonably accommodate. (vii) A development that strictly complied would result in a more commercial form that, while consistent with zone controls, would be atypical and out of character. (4) Justification to contravene the development standard. (i) Strict numerical compliance would be unreasonable on the basis that the proposed development achieves compliance with the objectives of the standard as follows: ● The density proposed is appropriate for the site's location and results in a fit for the site's context; ● The proposal will not result in significant adverse impacts upon the locality or adjacent residential properties by way of overshadowing, view loss, privacy, bulk or scale; ● The variation provides for an improved architectural outcome that would not be available if strict compliance was achieved; ● The resultant built form is a more appropriate response to the site and the dual zones and controls that apply to the site; and ● The dual zones, permissible uses and different controls applying across the site, provide the circumstances to redistribute floor space across the site specific to this site to facilitate an improved built form outcome from one that strictly complied.

Conclusion

1. Having carefully considered the evidence, submissions and undertaken a view, I am satisfied that the amended proposal merits conditional consent. The proposed affordable housing form of development is permitted on the subject site and the proposed lot consolidation presents a larger, corner site presents circumstances that allows for some design flexibility, including a singular access driveway to serve the whole development.
2. The primary control is the SEPP (Affordable Rental Housing) whose aims include the facilitation of the "effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility. floor space ratio bonuses and non - discretionary development standards." It also aims to achieve a balanced approach between obligations for retaining and mitigating the loss of existing affordable housing, and incentives for the development of new affordable housing.
3. In the subject circumstances, the main issue concerns the increased floor space on the existing "middle" Lot B. According to the aforementioned evidence, Ms McCabe supports the proposal. I understand from the evidence that Mr Baker basically accepts the proposal's presentation to Woodville Road, notwithstanding its variation with the different neighbouring setbacks and non - compliance with the DCP controls. His main concern was with the initial streetscape presentation to William Street.
4. Accordingly, I am satisfied that the amendments to introduce a 3m wide gap between the buildings to break up the street presentation adjacent to community/lounge room provide a reasonable streetscape and urban design outcome. In this regard I take Mr Baker's final comment that the amendments are "clearly an improvement" as being acceptable in the circumstances because they reasonably address the details he identified in his evidence.
5. I accept Ms McCabe's proposition that the larger, consolidated, corner site allows for more orderly development of the land. The main issue arising from the increased FSR on the middle lot B concerns the potential impacts on the neighbouring residential properties. However, whilst the FSR development standard in the PLEP prescribes a numerical requirement of 0.5:1, there are associated qualitative objectives, which include the provision of an acceptable "transition in built form and land use intensity within the area…"
6. It seems to me that the form of the development is reasonably consistent with the allowable and existing form and scale that could occur along the Woodville Road frontage. The northern, internal Units 09/31 maintain the same 4.65m setback as the front Units 08/30 to the northern boundary, which forms an acceptable transition in my assessment of the evidence. If strict compliance was required with the numerical standard then some reduction of the units on Lot B would be required but I do not consider that would necessarily achieve a better outcome, considering the orientation of the adjoining lot and the proposed separation distances.
7. I understand from the evidence that the main concern related to the transition from the (additional) units on Lot B over Lot C to the neighbouring dwelling at No 155 William Street. However whilst there are four 2 - storey units on Lot C proposed towards the William Street frontage, nevertheless they shield similar units on Lot B and result in an acceptable transition from units 16 and 17 to No 155 William Street, particularly taking into account the separation afforded by the 7.5m wide driveway on the eastern boundary. The additional internal units (U 11 and 12) then have a separation distance of approximately 19m to the boundary with No 155.
8. In the particular circumstances of this application, I am satisfied to rely on Ms McCabe's opinion that the transition is acceptable, particularly taking into account the amount of proposed open space adjacent to No 155 and the driveway separation and therefore the proposal merits consent. In this regard I consider the amendments basically address the main urban design issues raised by Mr Baker. It is apparent that the elements of the streetscape include significant variations to the existing dwelling houses such as the school and commercial buildings and I am satisfied that the proposal is compatible with the character of the local area as required by cl 30A of the SEPP.
9. Insofar as the proposal involves a non-compliance with the FSR development standard there was some discussion regarding the need or otherwise to consider the Clause 4.6 written request for a variation. In this regard I refer to Brown C findings in Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 as to whether there was a need to consider such a written request in a SEPP (Affordable Housing) matter. He said that: 48. The appropriate test for the height variation was raised by the parties although the hearing proceeded largely on cl 29(4) of SEPP Affordable Housing, in that the Court may consent to development to which SEPP Affordable Housing applies even though the development does not comply with the height standard in LEP 2013. The other scenario was that the non-compliance with the height standard required a written request, under cl 4.6 of LEP 2013, to support the variation. While it was not the applicant's principal position, a written request was provided for abundant caution. 49. I am satisfied the cl 29(4) of SEPP Affordable Housing allows the Court to determine whether the variation to the height standard is appropriate. The use of cl 29(4) of SEPP Affordable Housing is not unfettered and must come with some consideration of the variation sought. In this case, the variation has been assessed against the relevant requirement in LEP 2013, the DCP and the Design Guidelines and found to be acceptable. 50. If I am incorrect in relying on cl 29(4) of SEPP Affordable Housing, then I am also satisfied that the cl 4.6 written request supports the variation to the height standard.
10. In the first instance I follow Commissioner Brown's approach that the Court can determine the FSR development standard apart from the cl 4.6 written request. On that basis I am satisfied this proposal merits consent.
11. As detailed above, I have nevertheless considered the cl 4.6 written request in terms of the relevant controls together with Mr Baker's counter submissions in Exhibit 6 and I am satisfied that it has been made out in the circumstances of the case whereby the amended proposal results the four preconditions being satisfied. Consequently, the proposal should result in the economic and orderly development of the land to achieve a better community outcome notwithstanding the partial non - compliance with the FSR development standard.
12. In summary, I am satisfied Mr Baker's urban design concerns have been reasonably addressed in the amended plans and I rely on Ms McCabe's opinion that the approval of this proposal merits conditional consent and that it will reasonably achieve the overriding SEPP aims, particularly for the facilitation of the effective delivery of a new affordable housing development.

Court orders

1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA/289/2014 for the 3 lot consolidation, building demolition, tree removal and construction of a 39 room boarding house including an on-site manager's residence at No 157 - 161 William Street, Granville in accordance with the conditions in Annexure A. 3. The exhibits may be returned except 1, 4, 5, 6, 7, B, C and F. R Hussey Acting Commissioner 10125 of 2015 - Annexure A (179 KB, pdf) 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: 12 February 2016