Staldone Rosedale Pty Ltd v Lane Cove Council

Land and Environment Court (NSW)|2020-10-07

Judgment

Two appeals are brought before the Court by the Applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Lane Cove Local Planning Panel on behalf of the Lane Cove Council (the Respondent) for boarding house development on two sites that are in close proximity and are similar but not identical, at No 47 and No 51 Mindarie Street, Lane Cove.
This judgment is in respect of development Application No. DA105/2019 which seeks consent for the demolition of existing structures and construction of a 6-storey boarding house containing 26 double boarding rooms (including 2 accessible rooms), 1 managers dwelling, 1 communal living room, communal open space, 2 bicycle lockers and 4 bicycle racks over 1 level of basement car parking containing 12 car parking spaces (including 1 accessible space and 1 car share space) and 6 motorcycle spaces and associated landscaping at No 47 Mindarie Street, Lane Cove (being Lot 55 in DP 35865).
Relevantly, the sites the subject of the two appeals are proximate, but separated by a lot at No 49 Mindarie Street that is almost identical in size, topography and controls, but is not the subject of either this appeal, or that of the related proceedings (case number 2019/309258).
As No's 47 and 51 Mindarie Street are virtually identical in size, topography, local context, and applicable controls, I propose to set out the relevant shared facts and contentions before particularising consideration of matters relevant to the subject site.
The background facts and contentions are set out by the Respondent in an Amended Statement of Facts and Contentions (Exhibit 1). However, as a result of experts conferring prior to the hearing, a number of contentions were resolved or further narrowed.

Approach to the proceedings

It is relevant to record at the outset that, in accordance with its usual practice at the time, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May 2020 and at which I presided.
The conciliation conference was conducted in accordance with the terms of the COVID-19 Pandemic Arrangements Policy published by the Court on 23 March 2020 (March Pandemic Policy) and was undertaken via Microsoft Teams.
As resolution was not reached, the conciliation conference was terminated, and the matter was subsequently listed for hearing and the parties consented to me hearing the matter.
On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy (July Pandemic Policy) on the Court's website. Consistent with the July Pandemic Policy, the Court granted leave for the proceedings to commence with an onsite view with nominated persons only, and for the two-day hearing with the parties to be conducted via Microsoft Teams.
The onsite view was attended by the legal representatives and the town planning experts only. In their company, I was taken to the intersection of Mindarie Street and Willandra Street to the west of the sites, and to the intersection of Mindarie Street and Hatfield Street to the east.
The parties drew my attention to the subject sites, and the site located at No 49 Mindarie Street which is positioned between the sites. I was also taken to the street frontage of existing residential flat buildings at No 41-45 Mindarie Street, No 31-39 Mindarie Street and No 30-32 Mindarie Street to view the driveway and car parking conditions.
Written submissions from residents are contained in Exhibit 5, at Tabs 3, 18, and 40. The most recent submissions may be summarised as follows:

The height and floor space ratio (FSR) of the proposed buildings is excessive, and setbacks insufficient to avoid overshadowing and loss of privacy to adjoining properties.
Boarding house development is unsuitable in a location close to schools and parks designed for children.
The high 'turn over' of occupants in a boarding house represents an infection risk to the community.

In addition to receiving a written submission dated 18 August 2020, the Court granted leave for Mr Guy Hallowes to provide an oral submission via Microsoft Teams at the outset of the hearing on behalf of the Stringy Bark Creek Residents Association and that may be summarised as follows:

The adverse impacts resulting from the proposed development is an unacceptable precedent for the area,
The proposed development would change the character of an area that is desirable for its bushland setting.

The site and its context

The site is located on the northern side of Mindarie Street, and is in close proximity to the site the subject of related proceedings at No 51 Mindarie Street. Relevantly, the sites are separated by the site at No. 49 Mindarie Street.
The sites have identical dimensions and site area, being 15.24m in width and 36.575m in depth, with a total area for each site of 557.4m2.
The site is located within the R4 High Density Residential zone pursuant to the Lane Cove Local Environmental Plan 2009 (LCLEP), in an area identified as Residential Locality 6 Mowbray Precinct by the Lane Cove Development Control Plan 2010 (LCDCP).

The issues

As stated earlier, a number of the contentions originally set out by the Respondent were resolved as a result of experts conferring.
At par 78 of the joint town planning and urban design expert report (Exhibit 6) the experts agree that the land use, height, bulk, scale, density, massing, setbacks and landscape area of the proposed development is acceptable, however there is disagreement as to whether any adverse impacts arise from replicating the same development on No's 47, 49 and 51 Mindarie Street.
Those contentions remaining were summarised by the Respondent as follows: 1. The proposed development at No 47 Mindarie Street exceeds the height standard. 2. The proposed development, if replicated on No's 47 and 51 Mindarie Street isolates the property at No.49 Mindarie Street. 3. The resulting development is uncharacteristic of the built form in the local area.
As the height exceedance and the character are jurisdictional matters that must be satisfied in order to enliven the grant of consent, I will address these matters first before considering whether No 49 Mindarie Street is isolated by the proposed developments, and the traffic-related matters after this.

Expert evidence

Given the matters remaining in dispute, the Court was assisted by the following experts: 1. In respect of town planning, Mr Greg Boston, expert planner for the Applicant and Mr Glenn Apps, expert planner for the Respondent. In respect of urban design, the Applicant relies upon Mr Alan Cadogan who conferred with the town planning experts. The experts conferred to prepare the joint report marked Exhibit 6. 2. In respect of traffic and waste, Ms Meg Kong Siew Hwee, expert traffic engineer for the Applicant and Mr Trevor Thornton, expert waste consultant for the Applicant, and Ms Shashika Perera, expert traffic engineer for the Respondent and Mr David Wilson, expert waste consultant for the Respondent. The experts conferred to prepare the joint report marked Exhibit 10. 3. In respect of landscape and aboriculture Ms Catriona Mackenzie, expert in arboriculture and Mr Anthony Morton, expert in landscaping for the Applicant and Mr Hugh Millington, expert in aboriculture and Mr Ted Webster, expert in landscaping for the Respondent. The experts conferred to prepare the joint report at Exhibit 8.

Statutory Framework

The proposed development is for boarding house development, which is permitted in the R4 zone with consent. The objectives of the R4 zone set out in the LCLEP are in the following terms: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To ensure that the existing amenity of residences in the neighbourhood is respected. • To avoid the isolation of sites resulting from site amalgamation. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
The proposal is subject to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
The aims of the SEPP ARH, at cl 3, are in the following terms: The aims of this Policy are as follows - (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) 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, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) 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, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
Clause 29 (1) and (2) of the SEPP ARH provides, relevantly: 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 - … (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 … (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 - … (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 … (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). …
It is common ground between the parties that the proposal complies with the following standards at cl 29 of the SEPP ARH that cannot be used to refuse consent:

Floor space ratio
Solar Access
Private open space
Accommodation size

While the number of proposed car parking spaces in respect of the development does not achieve the number required to enliven the 'must not refuse' provisions' at cl 29(2)(e)(iia), the Respondent submits there is no dispute between the parties on the number of car parking spaces proposed.
The Applicant acknowledges that the proposed development exceeds the permissible height of buildings of 17.5m as set out in cl 4.3 of the LCLEP and relies upon a written request to justify the contravention of the height standard in accordance with cl 4.6 of the LCLEP, considered at [33]-[55].
The objectives of the height standard at cl 4.3 of the LCLEP are in the following terms: (a) to ensure development allows for reasonable solar access to existing buildings and public areas, (b) to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable, (c) to seek alternative design solutions in order to maximise the potential sunlight for the public domain, (d) to relate development to topography.
The Respondent submits that notwithstanding some aspects of compliance with cl 29 of the SEPP ARH, the proposal is an overdevelopment that is out of character with the Mowbray Precinct due to inadequate side setbacks, and separation distances so that the proposed developments fail to meet the 'character test' set out in cl 30A of the SEPP ARH, to which I should give significant weight and find that consent should not be granted.
Clause 30 of the SEP ARH contains standards that must be satisfied in order to enliven the power to granted consent, and the parties are agreed that the standards are complied with.
Clause 30A of the SEPP ARH 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.

The contravention of the height of buildings standard is upheld

According to the Applicant, the Court does not require a written request prepared in accordance with cl 4.6 of the LCLEP to enliven the Court's power to grant consent as cl 29(4) of the SEPP ARH permits the grant of consent whether or not the proposed development complies with the provision at cl 29(2)(a) of the SEPP ARH which deals with building height.
This is consistent, Mr Staunton submits, with the position of Moore J in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 (193 Liverpool Road) where, at [44], his Honour describes the provision as "self-evidently, a provision that does not provide an automatic pathway to approval but one which requires consideration of discretionary matters in an assessment of the proposed height exceedence."
The effect of which, his Honour states at [48], is that cl 29(4) does not mandate a "strict cl 4.6-like approach" because there is nothing in cl 29(4) of the SEPP ARH that constrains the exercise of the discretion as distinct from the very structured testing regime found in cl 4.6 itself.
Additionally, Mr Staunton cites the grounds set out in Boyce v Inner West Council [2019] NSWLEC 1521 at [25]-[30] on which Commissioner Walsh concluded that the provision at cl 29(4) of the SEP ARH must have work to do and that is, in effect, to set aside the operation of cl 4.6.
Conversely, Mr Seton argues that I should assume harmonious construction between the provisions of the SEPP ARH and the LCLEP as the legislature intends consistency, and that it cannot be intended for cl 29(4) of SEPP ARH to set aside the height standard at cl 4.3 of the LCLEP.
Instead, adopting the reasoning of Commissioner Gray in Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339, I should find that the work intended for cl 29(4) to do is specific and limited. Commissioner Gray's rationale at [39]-[41] is re-produced below: "39 Clause 29(4) operates in the specific context of cl 29. Clause 29(1) and (2) set out minimum criteria, which if met, prevents a refusal of consent based on the underlying purpose of the criteria. They are "must not refuse" grounds that might have otherwise been used by consent authorities to refuse the application, but do not constitute development standards. They operate only one way, precluding a consent authority from refusing consent if specified minimum standards are met. 40 As cl 29(1) and (2) operate only one way, prohibiting the refusal of consent if those minimums are met, they are silent on what occurs if the minimums are not met. As such, a question arises as to whether, if the minimums are not met, this should result in the refusal of the application. Clause 29(4) addresses this question, making it clear that a consent authority may grant consent "whether or not the development complies with the standards set out in subclause (1) or (2)". That is the extent of the operation of cl 29(4). 41 That being the extent of the operation of cl 29(4), the development standards in the MLEP 2011 continue to apply to the development (notwithstanding that it so happens that some of the criteria in cl 29(1) and (2) are taken from the development standards). There is nothing in cl 29(4) that operates to create an inconsistency with the development standards in the MLEP 2011."
Following Commissioner Gray's rationale in this case, I should find that the development to which the exceedance applies cannot be approved unless a written request pursuant to cl 4.6 of LCLEP 2012 is upheld by the Court.
I accept Mr Seton's submissions which reflect the reasoning of Commissioner Gray who further assists me, at [41], by distilling the operation of cl 29(4) and cl 4.6 in a manner that assumes harmonious construction to the legislature as follows: "…There is nothing in cl 29(4) of the SEPP ARH that is inconsistent with the terms of cl 4.6. That is: Clause 29(4) of the SEPP ARH makes it clear that the discretion to grant consent remains despite a non-compliance with (1) or (2), and; Clause 4.6 of the MLEP 2011 makes it clear that consent cannot be granted if there is a breach of a development standard in the MLEP 2011 unless certain pre-conditions are met."
As stated at [28], the Applicant relies on a written request prepared in accordance with cl 4.6 of the LCLEP.
The written request, prepared by Mr Greg Boston dated 4 October 2020 (Exhibit G), states the extent of the breach is limited to a dimension of 500mm measured at the extent of the lift overrun and AC enclosure on the rooftop of No.47 Mindarie Street, measuring around 2.8% of the overall building footprint.
The Respondent submits that the written request is based on grounds that are factually wrong, or are not properly considered as environmental planning grounds.
In particular, the written request fails to establish sufficient environmental planning grounds as required by cl 4.6(3)(b) of the LCLEP despite the following four grounds being advanced. 1. In respect of the first ground, while the written request acknowledges that the exceedance could be resolved by excavating further into the site, the Respondent notes the building is set up around 900mm above the footpath level which is a conscious decision of the Applicant and so is not an environmental planning ground. 2. The second ground states that stepping the building down with the topography of the site may resolve the breach but would introduce level changes within the building resulting in complexity in lift servicing and internal circulation. The Respondent submits that ramps are required to access the building from the street level and it is a simple matter of incorporating those ramps and levels into the building, rather than in the external approach to the entry. 3. The third ground states that a lift lobby located further back on the site "would fit within the height standard", but would 'negatively impact' the layout of the basement and the internal amenity of the rooms which I understand to be a reference to the current location being in the mid section of the plan, and servicing rooms to both the front and rear of the site. The Respondent submits the ground is factually wrong as the lift, even if located on the rear boundary, would not be within the height plane set by the height standard. 4. The fourth ground states that boarding house development is under-supplied in the Lane Cove local government area and strict compliance with the height standard would require the removal of the top floor of the proposed development at No 47 Mindarie Street, which would deprive the area of 195m2 of gross floor area and result in an FSR significantly below that envisaged by cl 4.4 of the LCLEP and even further below that FSR permitted by operation of the bonus at cl 29(1)(c) of the SEPP ARH.
Clause 4.6 of the LCLEP provides the Court with the power to grant consent to the development even though the development would contravene the development standard found in cl 4.3 of the LCLEP, but that power is subject to conditions.
As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action"), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), 3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a), and 4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b).
I am satisfied that the written request adequately addresses the matters in cl 4.6(3)(a) and (b) to the effect that compliance with the height standard is unreasonable and unnecessary because the proposed development the subject of the written request is consistent with the objectives of the zone and the height standard, and because there are, in my view, sufficient environmental planning grounds set out in the written request.
Firstly, the exceedance is consistent with the objectives of the height standard, set out at [29], for the reasons that follow: 1. Shadow diagrams demonstrate that at least 3 hours of solar access will be maintained to the north facing living, and rear facing private open space of the adjoining dwelling to the east between noon and 3pm on 21 June with at least 2 hours of solar access maintained to the west-facing apartments in the adjoining residential flat building between 11am and 1pm on 21 June, and finally the exceedance will not result in unreasonable shadowing impacts on the public domain. 2. No adverse visual or aural privacy impacts result from the exceedance. 3. The development is arranged on the site to limit excavation to those areas necessary to accommodate basement car parking and service areas. While the fall on the site is slight or minor, a reconciliation is required between the higher level to the rear of the site, the lower level at the street frontage, and the basement level of the car park that requires ramped access from Mindarie Street.
Secondly, the exceedance of the height standard by the particular aspect of the proposed development is consistent with the zone objectives for the following reasons: 1. Boarding house development is a permissible use in the R4 zone, and in this location, is in walking distance of regular bus services along Mowbray Road. I also accept that boarding rooms, by virtue of their compact size and model of tenure provides variety in the housing type. 2. While the lift over run exceeds the maximum permissible height, the exceedance does not result in any residential amenity impacts in terms of views, privacy or solar access. In arriving at this state of satisfaction, I note the concession made by Mr Boston in his oral evidence, and the submissions of the Applicant, that the view from the sun diagrams at Drawing VS01 (Exhibit B, tab 5) do in fact show some impact on properties to the southern side of Mindarie Street, but it does not preclude apartments in the development recently approved from receiving the required hours of sunlight stipulated in the Apartment Design Guide and so is not unreasonable in its impact. 3. The particular aspect of the exceedance does not arise due to allotment size, and has no impact on the extent of landscaping.
Thirdly, I consider the environmental planning grounds summarised at [44] to be sufficient, and to be adequately addressed for the reasons that follow: 1. While the proposed development at No 47 Mindarie Street is elevated above the street, I accept that some mediation is required between the height of the building above ground, and the ramped access to the basement car parking which is required to achieve certain gradients to satisfy relevant Australian Standards. 2. While the building could, theoretically, be stepped to provide a form of 'split level', a lift, whose overrun always sits proud of the highest storey it services, would need to be brought forward on the site to the lower level for it to have any effect on the exceedance. I accept that a building on a site of this depth, regardless of the dimension of its frontage to Mindarie Street, is best serviced by a centrally located lift so that boarding rooms have an aspect to the front and rear of the site where setbacks are greatest. 3. For the reasons above, while I also accept that a lift located further back on the site may reduce the exceedance, the result is likely to reduce the amenity of the occupants of the boarding house as a lift, foyer and stairs at the rear of the site, being the northern aspect, would then require a corridor extending to the south to service boarding rooms and it is reasonable to question, as the written request does, whether this achieves the object at s 1.3(g) of the EPA Act to promote good design and amenity of the built environment. 4. While I accept the Respondent's position that FSR is a maximum, and is not as of right, I also accept that the alternative proposed by Mr Boston, which would be to remove the top floor, may result in a complying building, but would comply at the cost of four boarding rooms to resolve an exceedance that I conclude does not impose unreasonable adverse impacts on properties in the area.
In forming this opinion of satisfaction, I accept the Applicant's submission that a written request, prepared by a town planning expert, and not a legal practitioner, may employ language that relies on terms of broad application in the discipline of town planning that may, at times, fail to align precisely with a meaning preferred by parliamentary counsel or defined in an environmental planning instrument.
In this case, I accept Mr Boston's characterisation of boarding house development as a form of affordable housing. While I acknowledge Mr Seton's submission that a definition of the term is found in the Dictionary of the LCDCP, the EPA Act, and SEPP ARH, I note that Boarding house development is the object of Division 3 of a SEPP entitled 'Affordable Rental Housing'.
I also note here that I consider Mr Boston's propositions advanced in the written request, and summarised at [44], to be constructive examples of ways in which compliance, which is said to be unreasonable or unnecessary, could be achieved.
I am also satisfied, as required by cl 4.6(4)(a)(ii), that the proposed development is in the public interest as it is consistent with the objectives of the zone and the height standard, and because the minor exceedance in height of the lift overrun and AC enclosure does not impose unreasonable adverse impacts on the public domain or proposed development on the southern side of Mindarie Street as evidenced by the shadow diagrams attached to the written request.
Finally, given the minor extent of the exceedance in height and footprint, I am satisfied that the Secretary's concurrence can be assumed in accordance with Planning Circular PS 20-002. For this reason, and the reasons stated above, I am satisfied that the Applicant's written request in respect of the exceedance of the building standard should be upheld.

The resulting development is uncharacteristic of the built form in the local area.

The contention as originally framed in Exhibit 1, is that the proposed development should be refused because the design of the proposed development is not compatible with the existing or desired future character of the local area.
In particular, the Respondent considers that as boarding house development is similar to residential apartment development, similar side setbacks and building separation controls should apply.
I note here that the joint expert report at Exhibit 6 records the agreement of the experts on both the side setbacks (par 34), and the separation distances (par 39).
However, Mr Seton for the Respondent, presses the contention and submits that side setbacks are a feature of the dominant development type in the precinct, being residential flat buildings that, with only one exception, demonstrate a 6m side setback for the first four storeys in accordance with the Apartment Design Guide (ADG).
The exception relates to No 2-4 Pinnaroo Street and is explained by it's adjacency to Mindarie Park.
In contrast, the proposed development does not respect the likely future character with reduced setbacks such that No 47 Mindarie Street will be separated from its neighbour to the east by 9m, and not 12m. Furthermore, in the event that No 49 Mindarie Street is developed in a consistent form as the subject sites, each development would be separated by a distance of 6m, and not 12m as required by the ADG.
The combination of more narrow development on smaller allotments, and reduced side setbacks resulting in limited viewlines, is inconsistent with the emerging character of Mindarie Street that is otherwise defined by larger residential flat buildings on sites that have been consolidated.
Mr Seton invokes the Court's planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) to submit that the most important contributor to character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping, and in which setbacks from side boundaries determine the rhythm of building and void.
According to the Respondent, site consolidation provides greater opportunity for better site planning, more consistent streetscape rhythm and complying side setbacks.
However, according to Mr Staunton the Council now seeks to apply the provisions of the ADG, which is an adjunct to State Environmental Planning Policy No 65 - Design Quality in Residential Apartment Development (SEPP 65) despite Council electing to not give effect to SEPP 65 in the LCLEP as other Council's have.
Mr Staunton also draws my attention to the aerial photograph at Exhibit 4 which shows anything but consistency in the rhythm of Mindarie Street. The residential flat building at 31-39 Mindarie Street appears a consolidation of four or five sites while the residential flat building at 41-45 Mindarie Street appears a consolidation of three sites. The residential flat building at 2-4 Pinaroo Place is a consolidation of 2 sites.
Further, Mr Cadogan views the 'fine grain' of the proposed developments on both sites as an advantage. Firstly, in contributing southern view corridors to residents in larger development proposed immediately north of both sites at 640-646 Mowbray Road, and secondly in presenting landscaped setbacks that will read as deep façade articulation when viewed from Mindarie Street.
The town planning experts agree (Exhibit 6, par 20), as I do, that the provisions of SEPP 65 and the ADG do not apply to boarding house development in the Lane Cove local government area.
That said, the experts also consider the role those provisions should play in providing guidance to the side setbacks in this context and conclude that the setbacks proposed are not inconsistent with the ADG and will not be perceived as inappropriate or jarring in a streetscape context (Exhibit 6, par 28).
I accept the agreement of the experts that reasonable levels of visual and acoustic privacy are achieved between the proposed development and its neighbour at 41-45 Mindarie Street, due to the positioning of highlight windows to the east and west elevations, and the location of balconies, primarily, to the north and south.
In saying this, I note in particular that the ADG provides for reduced setbacks where a wall facing a side boundary is to a non-habitable room, or is blank. While that is not the case in the proposed development, the treatment of the façade, with highlight windows only, is similar in my view as those windows perform a secondary function and do not permit a sightline to the neighbour that would constitute overlooking. I also note agreement at the benefit of fixed louvres, that is reflected in the agreed conditions of consent.
While the ADG does not apply to boarding house development, a 3m side setback is permitted by the ADG and so it is reasonable to assume that such a setback could be relied upon in subsequent residential apartment development in the precinct. If it is, such a setback would echo the rhythm in the streetscape as is proposed and so the side setbacks proposed would not be uncharacteristic of the likely future character.
I also note the agreement of the landscape experts that while the car park basements to both sites extend to side boundaries, there is sufficient provision for deep soil to support small canopy trees to be satisfied that the side setbacks will offer the landscape view corridors suggested by Mr Cadogan.
Finally, I accept the conclusion of the experts recorded in Exhibit 8 that the landscape treatment to the front and side setbacks are consistent with front and side setbacks evident in the street (Appendix F and J).
For the reasons set out above, I conclude that the proposed development is compatible with the character of the local area in accordance with cl 30A of the SEPP ARH.

Site isolation

As stated at the outset of this judgment, the subject sites are proximate, but are separated by No 49 Mindarie Street. The Respondent contends that development proposed on No 47 and No 51 Mindarie Street has the effect of isolating the site at No 49 Mindarie and that insufficient efforts have been made to acquire No 49 Mindarie Street in accordance with the provisions at Section B.3 of the LCDCP that deals with Site Amalgamation and Development on Isolated Sites.
The Respondent notes that the provisions of the LCDCP closely align with the relevant principles and case law of the Court, and both the Court and the LCDCP requires evidence that an independent valuation was obtained and presented to the owner of No 49 Mindarie Street.
The Applicant submits in the first instance that the site is not isolated as it is agreed between the experts that a number of uses are permissible on the site at No 49 Mindarie Street, including a number of uses that are not subject to any minimum site area/lot size requirements.
Those uses include, but are not limited to: Bed and breakfast accommodation, Boarding houses, centre-based childcare, dwelling house, group home, and multi-dwelling development.
However, in the alternative, the Applicant submits that the particular circumstances of the negotiations with the owner of No 49 Mindarie Street are sufficient to satisfy the Court that other means have been used to derive a reasonable value for the site at No 49 Mindarie Street in the absence of an independent valuation.
Furthermore, the relevant provision at Section B.3, Provision (c) does not, in fact, require an independent valuation to be presented to the owner, but to the Council as follows: "c) Where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. Council will require appropriate documentary evidence to demonstrate that a genuine and reasonable attempt has been made to purchase an isolated site based on a fair market value. At least one recent independent valuation is to be submitted as part of that evidence and is to account for reasonable expenses likely to be incurred by the owner of the isolated site in the sale of the property."
At this stage it is helpful to summarise the chronology of the negotiations between the Applicant and the owner of No 49 Mindarie Street as it appears in the Class 1 Application (Exhibit A), and Appendix E of Exhibit 6.

On 31 March 2016, the sites at No's 47 and 51 Mindarie Street were advertised for public tender by the NSW Land and Housing Corporation, with a closing date for tender of 20 April 2016.
On 1 April 2016, the Applicant engaged Harcourts Forest Group (Harcourts) to contact the owner of No 49 Mindarie Street, and the owner is provided with a summary of the conversation the following day.
Between 2-20 April 2016, Harcourts seeks further contact but is unsuccessful.
On 20 June 2016, the Applicant is advised of its success and contracts on the sale are exchanged for the sites at No's 47 and 51 Mindarie Street as well as five other properties in close proximity. A price of $2,000,000 is paid for the subject sites.
On 22 June 2016, Harcourts writes to the owner of No 49 Mindarie Street to advise of the purchase of the subject sites and inviting further negotiations.
On 27 June 2016, the owner of No 49 Mindarie Street declines the invitation, suggesting a delay of one year and an outright sale.
On 1 July 2016, Harcourts advises that the Applicant would consider an outright sale, with delayed settlement suited to the needs of the owner. The owner declines in writing the same day.
In July 2017, around a year later, Harcourts makes contact by telephone with the owner who again declines the invitation to negotiate.
In August 2018, the Applicant engages Belle Property Lane Cove (Belle Property) to initiate negotiations with the owner of No 49 Mindarie Street. On 14 August 2018, Belle Property delivers by hand an offer in writing of $2,500,000 via unconditional contract, a 6 week settlement, 10% deposit, a rent free period of 6 months and an additional 6 months at half the value of market rent. The owner declines and returns the offer.
On 20 August 2018, the owner of No 49 Mindarie Street emails Belle Property to advise: "… We have no plans to sell under 5 mill, the developer may proceed to build around us, we have no objection. …"
On 2 March 2019, the property at No 2 Merinda Street is sold at auction for $2,050,000.
On 23 March 2019, the property at No 24 Mindarie Street is sold at auction for $2,000,000.
In August 2019, the Applicant lodged a Development Application for the subject sites.

While the questions expected by the Court to be addressed in matters of site isolation are relevant and sound, in this case the site said to be isolated by the proposed development is not a remnant or 'orphan' in the conventional sense, but it is virtually identical to the subject sites.
This is relevant in addressing the Applicant's initial submission as to whether the site at No 49 Mindarie Street is capable of development, absent consolidation, that satisfies the minimum lot requirements.
I find that the site at No 49 Mindarie Street is capable of development that satisfies the minimum lot requirements because, firstly, the site, being virtually identical to the subject sites, is subject to the same controls as those applicable to the subject sites and secondly, as the range of uses permissible on the site include a number of uses for which no minimum lot requirements apply.
In considering the form of development likely to be achieved on the site at No 49 Mindarie Street, I note the experts rely upon a photomontage and 3D streetscape images in Exhibits 6 re-produced below: Figure 1- Montage showing the streetscape outcome should No's 47, 49 and 51 Mindarie Street be developed independently Figure 2 - 3D contextual image showing the streetscape outcome should No's 47, 49 and 51 Mindarie Street be developed independently
While schematic, the images are sufficient to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, in accordance with the principle set out in Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189.
I also note that the LCDCP does not provide a 'Block Plan' for the Mowbray Precinct that would provide further guidance on the preferred arrangement of sites in the local area.
However, the relevant part dealing with 'Block Plans' in Section B.3 of the LCDCP states that "Achievement of stated objectives is the over-riding goal", and that "a priority will be the achievement of the floor space in the LEP, notwithstanding the DCP's provisions and controls."
The objectives of Section B.3 of the LCDCP are in the following terms; "The objectives for site amalgamation and development on isolated sites are: a) To provide for a development that achieves the required employment and dwelling yields. b) To encourage the promotion and co-ordination of the orderly and economic use and development of land. c) To encourage site consolidation of allotments for development in order to promote the desired urban design outcomes and the efficient use of land and to avoid the creation of isolated sites. d) To encourage the development of existing isolated sites in a manner that responds to the desired built form pattern, site context and maintains a satisfactory level of amenity."
Objective c) encourages site consolidation. The Applicant has undertaken negotiations over the course of three years for this express purpose, both before and after the purchase of the subject sites, and engaging the services of two local 'agents' that has allowed the delivery of an offer by hand to the owner of the site at No 49 Mindarie Street.

The outcome of the appeal

For the reasons set out above, I conclude that the development is an appropriate application of the SEPP ARH and substantially complies with the planning controls in the LCLEP. In respect of the exceedance of the height control, I am satisfied that the contravention is justified.
Accordingly, I conclude that there is no basis to refuse the development application and it is granted subject to the conditions of consent as agreed between the parties.
The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans and other documents marked Exhibit H. 2. The appeal is upheld. 3. Development consent for Development Application No. DA105/2019 seeking consent for the demolition of existing structures and construction of a 6-storey boarding house containing 26 double boarding rooms (including 2 accessible rooms), 1 managers dwelling, 1 communal living room, communal open space, 2 bicycle lockers and 4 bicycle racks over 1 level of basement car parking containing 12 car parking spaces (including 1 accessible space and 1 car share space) and 6 motorcycle spaces and associated landscaping at No 47 Mindarie Street, Lane Cove is granted, subject to Conditions at Annexure A. 4. All Exhibits are returned, except for Exhibits A and H. …………………… T Horton Commissioner of the Court Annexure A - No 47 (237154, pdf) No 47 Plans (44361469, pdf)

Amendments 11 December 2020 - Administrative error corrected. 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: 11 December 2020

(2004) 139 LGERA 245

(2018) 236 LGERA 256

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Cases Cited (9)