Spiros Paul Antonatos v Inner West Council

The site and locality

1. The site is identified as Lot A in DP 343115. It is rectangular, has an area of some 371m² and is located on the south eastern corner of Bland Avenue and Julia Street.
2. The site is currently occupied by a two storey RFB containing 4 apartments with an associated garden shed and no onsite parking. It exists as a non-conforming use.
3. The locality is characterised by low to medium density development. On the northern side of Bland Street, between Julia Street and Parramatta Road, land is zoned R3 Medium density residential whilst on the southern side of Bland Street the zoning is R2 Low density residential.
4. Development in the area is a mix of residential densities, including RFBs, although single dwellings predominate. Three or four storey RFBs adjoin the site to the rear, to the west and opposite.

Background to the appeal

1. The application was lodged in November 2016 and was notified with eight objections received.
2. The objections raised concerns of overdevelopment, excessive height, bulk and scale, lack of parking and traffic impacts, privacy and solar impacts, increased noise and crime, and loss of property values. Concern was also raised that the development would have an adverse impact on the streetscape and was out of character with the area.
3. As a result of expert conferral and offers made by the applicant to accept specific conditions and provide motorcycle parking onsite, there were no longer contentions raised in terms of motorcycle parking provision or privacy impacts to neighbours. All other contentions were pressed by the Council.

The Relevant Controls

1. The site is located in the R2 Low density residential zone under the Ashfield Local Environmental Plan 2013 (the LEP) and the proposed use is permissible with consent in that zone.
2. The objectives of the R2 zone are as follows:

• 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.

1. The objectives of the FSR standard in the LEP are as follows: 1. to establish standards for development density and intensity of land use, 2. to provide consistency in the bulk and scale of new development with existing development, 3. to minimise adverse environmental impacts on heritage conservation areas and heritage items, 4. to protect the use or enjoyment of adjoining properties and the public domain, 5. to maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation.
2. The objectives of the height standard in the LEP are as follows: 1. to achieve high quality built form for all buildings, 2. to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, 3. to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, 4. to maintain satisfactory solar access to existing buildings and public areas.
3. The application was lodged under the provisions of the ARH SEPP as an affordable housing development.
4. Of specific relevance to this appeal are the following provisions of the SEPP which apply in terms of standards that cannot be used to refuse consent: 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……… (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,….. (e) parking if: (i) in the case of development in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development not in an accessible area - at least 0.4 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. ……. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
5. In addition cl 8 of the SEPP states as follows: Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
6. Clause 30(1)(e) of the SEPP is also applicable and reads as follows: A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: 1. if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager.
7. Consideration must also be given to Clause 30A of the SEPP which states as follows: 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.

Floor Space Ratio (FSR) and height

1. The expert planners' agreed that the proposed FSR was 091:1 against a maximum permissible FSR under the LEP of 0.7:1. Also that the proposed maximum height was 9.695m at the central ridge on the rear elevation, against a maximum permissible height under the LEP of 8.5m. The existing RFB on the site was estimated to have a height of 8.65m and an FSR of 0.62:1.
2. A written request under clause 4.6 of the LEP was lodged with the application seeking to justify exceedences to both the FSR and height permitted under the LEP. This is notwithstanding the Court has determined through various authorities that a cl 4.6 request is not required given the provisions of the SEPP at cl 29(4), see, for example, Koutsos & Anor v Manly Council [2016] NSWLEC 1121.
3. The applicant argued that the FSR and height standards in the LEP had been virtually abandoned by Council granting consent to developments which exceed the standards in the immediate area. This included 99 Bland Street - which is in the same zone and is four storeys, has a height in excess of 12m and an FSR in excess of 1.0:1, No's 4, 10 and 12 Julia Street also in the R2 zone and 3 storeys with heights in excess of 8.5m and FSRs in excess of 1.0:1, and 89 Bland Street which has similar non-compliances and had more than a 40% exceedence of the permissible FSR and height controls. By contrast, the proposed development has an FSR of 0.9:1, which is only a 28% exceedence of the FSR control, and is 9.7m high being only a 14% exceedence of the height control. Therefore the proposed development is substantially lower and smaller in bulk and scale than adjacent non-compliant development.
4. It was also argued that the FSR and height sought were specific to the site and its unique context, would therefore not create an adverse planning precedent in this section of Bland Street, and would be consistent with the objectives of the R2 zone. Furthermore, the development would provide quality affordable rental accommodation which is in such short supply in the Ashfield area.
5. The applicant also submitted that the design of the development would result in a better streetscape at the corner of Bland and Julia Streets in that it provided for a softer transition in built form between the buildings to the east and 99 Bland Street, 90-92 Bland Street, and 12 Julia Street.
6. The applicant further contended that the alterations and additions proposed to an ageing 1940s RFB would create a more modern acoustically and thermally insulated building with compliant fire safety measures and have a high standard of internal and external amenity whilst still retaining noteworthy architectural features. This included generous room sizes, adequate communal facilities and bicycle and motorcycle parking. Furthermore, it would not have an adverse impact on adjoining properties whilst providing overall benefit to the community.
7. In support of the FSR sought, the following was specifically argued: 1. The development provides consistency in its bulk and scale with existing development, particularly 99 Bland Street, 12 Julia Street and 90-92 Bland Street all of which are three or four storeys with FSRs greater than 1.0:1 and therefore substantially greater FSR that the proposed development. 2. The use and enjoyment of adjoining properties are protected with minimal overshadowing and loss of amenity (in particular privacy). 3. There is an appropriate visual relationship maintained between the development and the existing character of the area that is not undergoing, and is not likely to undergo, any substantial change, namely 12 Julia Street, 99 Bland Street and 90-92 Bland Street which are highly unlikely to be redeveloped.
8. In support of the height sought, the following was argued: 1. The objectives of the LEP height standard are achieved in that the design is a high quality built form with architectural composition avoiding bland building elements, highlighting the existing intricate facade brickworks with the use of dark metallic colour for the additional storey walls and roof and showing respect to the scale and aesthetics of the context including the streetscape. 2. The design maintains satisfactory sky exposure and daylight to 99 and 101 Bland Street, 12 Julia Street and Bland Street itself due to the generous distances between the proposed development and the adjoining properties. Specifically, the development complies with Council's requirements for satisfactory solar access to neighbouring buildings and public areas. 3. The development provides transition in built form, use/intensity between the one and two storey buildings to the east and 99 Bland Street, noting also that the R3 zone on the opposite side of the street has a 12.5m height limit. 4. Although the adjoining property to the east at 101 Bland Street is currently a single storey cottage some 6.5m in height, it would likely be redeveloped in the future to at least 2 storeys.
9. The Council argued that there was an over-reliance by the applicant on three properties in close proximity; namely 99 Bland Street, 90-92 Bland Street and 12 Julia Street, to justify the height and FSR proposed. Whilst acknowledging that these properties exist, the Council argued that they were not the predominant form in the streetscape nor even in the visual catchment of the site. The Council claimed that at least 50% of properties in the street and the area were one to two storey dwelling houses.
10. Furthermore the Council noted, and it was not disputed, that the three key properties relied upon by the applicant as being over the height and FSR permitted in the LEP were built long before the current planning instruments being even before the 1985 LEP. The Council argued they represented a prior undesirable element and not the intended built form under current controls.
11. Whilst not ignoring these three RFBs, the Council argued that one should not emulate or reproduce such developments and that the current LEP clearly has a desired character which the Council is aiming to achieve being lower density, lower height and lower scale development for this side of Bland Street.
12. Specifically, Mr North, planner for the Council, argued that the Council had made a decision to introduce controls for this area which precluded the height and FSR sought by the applicant notwithstanding the nature of existing adjacent development. These controls respect the character of the prevailing low density development on the same side of the street and indicate the desired future character for the local area.
13. In contrast, the Council had made a decision for a higher density with greater height on the opposite (northern) side of Bland Street but this could not be used to argue for the same controls in the lower density zone on the southern side, where the site was situated. The different zones should lead to an expectation of different outcomes for each side of the street.
14. Mr North also noted that the majority of development in the same zoning in Bland Street had FSRs substantially less than 0.7:1 and should be given greater weight than the adjacent anomalous non-compliant building which adjoined at 99 Bland Street.
15. Mr Swan, planner for the applicant, argued that it was necessary to not only have regard to the desired future character but also to the existing character and the site context. This site has a four storey RFB on one side and a three storey building at the rear both of which well exceed 12.5m in height. Accepting sites opposite are in a different zone, development there is also permitted to be up to 12.5m in height. Furthermore, the proposed development had no amenity impact on its neighbours.

Compatibility with character of local area

1. Clause 30A of the ARH SEPP requires that the Court take into consideration the compatibility of the design of the proposed development with the local character prior to granting consent. It is therefore also a key consideration in determining whether to vary the LEP height and FSR development standards.
2. Reference was made by the parties to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 which provides guidance in the assessment of compatibility. Relevant paragraphs 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........
3. The applicant argued that the character of the local area is mixed. It is not only one and two storey buildings but has built forms ranging in height from single to four storeys. There is a four storey building to the west of the site, a three storey building to the rear of the site, and a single storey building to the east of the site which is likely to be redeveloped with the addition of at least one storey. Furthermore, it is unlikely that the existing taller RFBs will be redeveloped as they are not permissible in the zone but enjoy existing use rights. Finally, directly opposite the site is an R3 zone with a height limit of 12.5m and existing RFBs. The proposed development offers a balanced transition between this taller development, visually blending with it, and lower development elsewhere in the street, therefore being compatible with the character of the area.
4. The Council reiterated that the three properties primarily relied upon by the applicant to justify the development in terms of its height, bulk and scale represented all that the Council did not want to emulate in future development in the local area as evidenced by the current controls. These properties were not indicative of the desired future character for the southern side of Bland Street as evidenced by the current controls.
5. The experts disagreed as to what the local area constituted in terms of clause 30A of the SEPP and what area comprised the visual catchment. The Council argued that, if it was Bland Street as it could be viewed from the site, then the majority of the development was only one to two storey dwelling houses and that was the prevailing existing and future desired local character for the southern side of Bland Street.
6. Quoting Project Ventures, the Council noted that sometimes existing character isn't desirable to maintain but that this was not the case for the R2 zoned portion of Bland Street other than in terms of the non-conforming RFBs that the applicant relied upon to exceed the core controls of that zone.
7. Mr North also argued that the intent of transition controls was to enable transitioning between different areas or zones not between sites in the same zone.
8. In response, the applicant argued that the test of local character must have regard to the nature of development adjoining the site and that the application was not seeking the same bulk or scale as adjoining RFBs, with substantially less FSR and height than these buildings, therefore having regard to the prevailing lower density development in the local area.
9. Mr North was also critical of the streetscape/public domain impacts of the design of the additional floor on an inter-war building claiming the additional level was of lightweight material and the proportion of the openings was not compatible with the existing character of the building. His evidence was that the design "would result in a poor quality built form outcome due to the architecturally awkward and top heavy imposition of the proposed level directly on top of a currently well-proportioned inter-war building".
10. Mr Swan conversely argued that the addition to the RFB would result in a high quality built form outcome using a range of materials and finishes which would show the evolution of the building over time to bring it to contemporary building standards. He also argued it was difficult to get bricks that matched the brickwork of its age.
11. In submissions, the applicant referenced Project Ventures at para 22 noting that compatibility is different from sameness and that it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance. On this basis, the development could vary in density, scale and appearance and could be compatible. The test was whether or not there were acceptable physical impacts on surrounding development and the experts had agreed there would be no significant adverse physical impacts on adjacent development. The applicant also argued that the proposal would not constrain the development potential of surrounding sites and would be in harmony with the buildings immediately around it and the mixed character of the street.
12. The Council referenced para 33 of Project Ventures which noted that compatibility between proposed and existing development is not always desirable and that 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. Also, that there are urban environments that are so unattractive that it is best not to reproduce them.
13. In the Council's view, the planning controls clearly envisage a change of character to that evident in the three poor examples of adjacent or nearby non-conforming RFBs relied upon by the applicant in terms of bulk, scale and height, and the proposed development was not in accordance with that envisaged character.

Parking

1. No onsite parking is currently provided onsite and none is proposed in the application.
2. The applicant submitted that the ARH SEPP does not stipulate parking standards which apply rather only standards which cannot be used to refuse consent. Therefore, there is no minimum car parking required for boarding houses. It was also argued that the Ashfield Interim Development Assessment Policy 2013 (the AIDAP) allows credits for existing development and also states that any development should be considered on its merits.
3. Referencing cl 29(2)(e) of the ARH SEPP, which states that consent must not be refused if at least 0.2 parking spaces are provided for each boarding room, Mr Swan claimed the proposed boarding house would require 2.2 parking spaces whereas the existing RFB should provide 4 spaces, resulting in a credit of 1.8 parking spaces for the boarding house use. For this reason, and the fact that some motorcycle parking was provided, the applicant argued that the proposed development was an improvement in terms of required parking provision.
4. The Council argued that the AIDAP also requires notice to be taken of the parking consequences of the development stating that the proposal should be refused on the lack of parking alone given that every objector referenced the already difficult parking situation in the vicinity.

Remaining issues

1. The Council raised a contention that the 11 double rooms proposed meant that the boarding house would have the capacity to accommodate 20 or more lodgers and as such an onsite dwelling for a manager, with the required private open space and parking, would be required. This was not provided.
2. The applicant offered a condition of consent to limit the number of lodgers to 19 to obviate the manager requirements and argued capacity should be read by reference to what was acceptable to the applicant. In any event, and as agreed by the Council, having an onsite manager was a basis on which consent could not be refused under the ARH SEPP not a mandatory requirement.
3. The Council submitted that a condition of consent was an inappropriate mechanism for dealing with the issue and was a breach of the SEPP which looks to capacity not to any other mechanism for limiting numbers and requiring onsite management.
4. The Council was also concerned that it was not evident that the proposed development was in fact for affordable housing as defined under the ARH SEPP. Clause 6 of the SEPP is as follows: 6 Affordable housing Note. The Act defines affordable housing as follows: affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument. (1) In this Policy, a household is taken to be a very low income household, low income household or moderate income household if the household: (a) has a gross income that is less than 120 per cent of the median household income for the time being for the Sydney Statistical Division (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or (b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme. (2) ..
5. The Council's concern was that there were no limitation proposed on the persons who may stay at the facility, that it was not proposed to furnish the rooms expecting that 'boarders' would have the financial capacity to bring their own furniture, that minimum 6 month leases were proposed, and that a dedicated onsite manager was not proposed. The Council noted that RFBs would otherwise be prohibited in the zone and it would be easy for the accommodation to become a de facto RFB with 11 studio apartments.
6. Accordingly, the Council sought imposition of a covenant or restriction linking the boarders to the requirements of the ARH SEPP. It was also for this reason that the Council argued that there should be an onsite manager to manage both the capacity and operation of the facility given the size of the unfurnished rooms, the length of the leases and how it was proposed to operate.
7. The applicant objected to any such condition arguing this was a new age boarding house with kitchens and bathrooms provided and that there was no requirement for boarding house rooms to be furnished or to have minimum lease periods. Furthermore there is no requirement under the ARH SEPP to restrict rents or the types of tenants and a condition of consent requiring that the property only be used as a boarding house should be all that is required.

Findings

1. In Koutsos & Anor v Manly Council [2016] NSWLEC 1121, Morris C determined the question of whether or not a clause 4.6 variation request is required to justify contravention of the maximum FSR and height standards in the LEP given the provisions of clause 29(4) of the ARH SEPP. Relevant paragraphs from that decision are as follows: 58 It is the applicant's position that the provisions of clause 29(4) of SEPPARH allow the Court to grant consent to the application despite the development not complying with the FSR, building height and carparking standards however, for abundant caution, it has lodged objections to those development standards. 59 I agree that clause 29(4) allows me to determine whether the variation to the standards is appropriate without the need for a written objection under clause 4.6 of the LEP. The use of that clause is not unfettered and requires consideration of the variations sought.
2. It is therefore not necessary for me to deal with the tests applied under cl 4.6 in order to grant consent to the height and FSR proposed by this application. However I am still required to consider the appropriateness and merit of the height and FSR sought.
3. The applicant's primary argument to vary the standards is the existence of three RFBs which already exceed the standards more than is proposed in the application; one adjoining to the west, one to the rear, and one opposite. It is therefore claimed that the Council has effectively abandoned its standards in approving these developments. The Council however, argued that all of these developments relied upon were approved prior to the current LEP standards, not disputed in evidence, and were not the form of development envisaged by the current controls, prevalent in the streetscape or desired in the zone.
4. Whether the proposed height and FSR are appropriate also goes to the local character compatibility test under cl 30A of the ARH SEPP.
5. Having regard to the evidence, and notwithstanding the three RFBs in close proximity to the site, I am not satisfied that the design of the proposed development would be compatible with the character of the local area or that the proposed building height and FSR are supportable.
6. The height of the existing building on the site already exceeds the current height limit control in the LEP and what is proposed would add to this exceedence. Whilst it is open to the Court to approve the development notwithstanding under cl 29(4) of the ARH SEPP, I find there is insufficient justification to do so.
7. My findings are based on the fact that, whilst the nature of the adjoining development to the rear and one side boundary, being RFBs of similar or greater height and scale, provides some basis to consider varying the controls, they provide insufficient planning grounds to warrant the exceedences to the LEP controls sought or the development as proposed.
8. The developments relied upon to support the variation to the controls were, by agreement, approved under previous LEP controls when such development was envisaged for the local area but they do not reflect the form of development envisaged or permitted under the current controls. It cannot be said that the Council has abandoned its controls as none of the developments relied upon by the applicant were approved under these current controls.
9. Furthermore, of the three buildings relied upon for the height and FSR sought, only one of these buildings, being 99 Bland Street, is on the same side of Bland Street as the proposed development. The second is at the rear of the site fronting Julia Street and the third is in a different zone where higher development is permissible.
10. I agree with the Council that the proposed additional FSR and height to a building which already exceeds the current height control would be inconsistent with the bulk and scale of the majority of existing development in the local area. In the zone and area in which it is proposed, it is only comparable to a handful of non-conforming RFB buildings. Therefore, the development would not be reflective of or in harmony with the predominant character of the local area and zone in which the site is located. The parties agree that this character is unlikely to change with sites on the same side of Bland Street unlikely to be redeveloped beyond two storeys and the predominant character therefore remaining one to two storey dwelling houses.
11. I also consider that the existing building on the site already provides the transition between the higher RFB adjoining to the west (on the corner of Julia Street) and the single storey cottage adjoining to the east without the need for additional height, bulk and scale to be added to what is already a non-compliant building. Therefore I do not accept the applicant's argument that the proposal would provide a more appropriate transition.
12. Having regard to the compatibility tests under Project Ventures, I therefore could not conclude that the proposal would be in harmony with the character of the street or of the local area.
13. I accept that the site is relatively unique in terms of the form of development at its rear, on one side boundary and opposite. However I also consider that the existing RFB on the site, which already exceeds the current LEP height control, provides an appropriate form of development having regard to that context.
14. I was also not persuaded that the proposed additional floor to the inter-war building that exists on the site, in the form and materials proposed, would improve the appearance of or be compatible with the existing building, the streetscape or the character of the local area, not finding any evidence of such similar development in the street or in the area.
15. It may be that some additional FSR is supportable associated with upgrading the existing building. However, I do not consider that this provides justification for such floor space to add additional height to the existing non-compliant building on the site or to change the form or the presentation of the existing building to the street, which I did not consider to be inappropriate in its context or streetscape presentation.
16. As I find that the height and FSR proposed are not appropriate given their departure from the core controls of the LEP, and would result in a design incompatible with the character of the local area, the development ought not be approved having regard to the required consideration under cl 30A of the ARH SEPP.
17. Given this finding, it is therefore not necessary for me to address the disputed areas of non-compliance with parking, whether or not the application is for bona fide affordable housing development, or the conditions in dispute.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development application 10.2016.243.1 for a boarding house at 99A Bland Street, Ashfield is refused. 3. The exhibits, other than Exhibits A, B and 1, are returned.

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Jenny Smithson Commissioner 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: 31 May 2017