Sung v City of Canada Bay Council - [2023] NSWLEC 1087 - NSWLEC 2022 case summary — Zoe

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Sung v City of Canada Bay Council

[2023] NSWLEC 1087

Land and Environment Court (NSW)|2022-11-23

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-11-23

Catchwords

[1999] NSWCA 19 Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99
[2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446

Source

Original judgment source is linked above.

Catchwords

[1999] NSWCA 19 Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99[2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446

Judgment (40 paragraphs)

[1]

Judgment

COMMISSIONER: Swan Avenue is north of Strathfield station and, although it is zoned for medium density residential, it is characterised by single dwelling houses. This appeal concerns a development application for the demolition of the existing dwelling and the construction of a three-storey boarding house containing 18 rooms at the corner of Swan Avenue and Cooper Street, known as 2 Swan Avenue, Strathfield. The development application was lodged with the City of Canada Bay Council (the Council) on 14 July 2021. Following the expiry of the period after which a development application is deemed to be refused, Mr Sung lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The proposed development includes ground floor level bicycle and motorcycle parking, with a communal living room, an accessible boarding room and the boarding room for an on-site manager also located on the ground floor. There are proposed to be 9 single boarding rooms on level 1 (the second storey) and 7 boarding rooms on level 2 (the third storey), which include 5 single boarding rooms and two double boarding rooms. The proposal includes a pitched roof form, with the third-storey boarding rooms located within the space created by the pitched roof.
The Council remains opposed to the grant of development consent, on the grounds that the proposal exceeds the height and floor space ratio (FSR) development standards, and its design is not compatible with the character of the local area. The Council also contends that the boarding rooms do not have sufficient amenity, and that the boarding house will have unacceptable acoustic and visual privacy impacts.

[3]

The applicable planning controls

The site is zoned R3 Medium Density Residential under the Canada Bay Local Environmental Plan 2013 (CBLEP). Boarding houses are a nominated permissible use in the zone. The objectives of the zone, which are required by cl 2.3 of the CBLEP to be considered in determining a development application, are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Clause 4.3 of the CBLEP, together with the Height of Buildings Map, imposes a height development standard of 8.5m to the site. The proposed development does not comply with the height development standard, and has a height of up to 8.67m with the pitched roof exceeding the height development standard in three places.
Clause 4.6 of the CBLEP permits the grant of consent in circumstances where there is a breach of a development standard, subject to certain matters being satisfied, as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. …
The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7A includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application.
At cl 29 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area) - (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if - (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case.
There is a dispute between the parties as to whether there is compliance with each of the criteria set out in cl 29. The applicable FSR permitted on the site, pursuant to cl 4.4 of the CBLEP and by the application of cl 29(1)(c) of the SEPP ARH, is 1:1.
Clause 30 of the SEPP ARH sets out a number of standards for boarding houses, as follows: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following - (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) 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, (f) (Repealed) (g) 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 will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
Clause 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area".
The Canada Bay Development Control Plan 2017 (CBDCP) does not contain any specific controls concerning boarding houses. However, the Council relies on the controls with respect to multi-dwelling housing which set standards for the number of storeys. Specifically, E3.6 of the CBDCP limits multi dwelling housing and residential flat buildings in precinct 2, in which the site is located, to two storeys.

[6]

The breach of the height development standard

The proposed development exceeds the 8.5m height of building development standard by up to 174mm, or 2.04%. The breaches are confined to three locations at peaks of the pitched roof form. The breaches at each location are 100mm, 166mm and 174mm, representing variations between 1.17% and 2.04% above the height of buildings development standard.
The Council contends that the breach of the height development standard warrants refusal of the development application, and that the applicant's written request does not adequately demonstrate the matters required by cl 4.6(4)(a) of the CBLEP. The Council also submits that the proposed development is not in the public interest, as it is not consistent with objectives (a) and (b) in cl 4.3 of the CBLEP. The objectives of cl 4.3 are as follows: (a) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively contribute to the streetscape and public spaces, (b) to protect the amenity of residential accommodation, neighbouring properties and public spaces in terms of - (i) visual and acoustic privacy, and (ii) solar access and view sharing, (c) to establish a transition in scale between medium and high density centres and adjoining lower density and open space zones to protect local amenity, (d) to ensure that buildings respond to the natural topography of the area.
The Council submits that although the breaches of the standard are numerically minor, they are nevertheless indicators of the overdevelopment of the site.
The Council's position is supported by the evidence of Mr Giaprakas, who opines that the additional height enables the proposed development to accommodate a third storey, which is not compatible with the height, bulk and scale of the desired future character of the locality, which is for a maximum of two storeys under the CBDCP. His evidence is also that the additional floor level results in a poor quality boarding house with poor amenity to habitable rooms located at ground level and at the attic level.
The applicant's position is instead that there is no requirement for the matters in cl 4.6 of the CBLEP to be considered, and that, if he is wrong on that point, the request adequately addresses the matters in cl 4.6(4)(a)(i) and the remaining matters in cl 4.6 are also satisfied. In support of this position, the applicant relies on cl 8 of the SEPP ARH, which provides as follows: 8 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.
He submits that cl 29(4) of the SEPP ARH permits the grant of development consent notwithstanding a breach of the height development standard, which is inconsistent with cl 4.3(2) of the CBLEP, which provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map." The submission is that cl 29(4) of the SEPP ARH permits what cl 4.3(2) of CBLEP prevents, and therefore the provisions are inconsistent and cl 29(4) prevails, without the need to turn to cl 4.6 of the CBLEP for the power to grant consent. Mr Pickles SC, who appears for the applicant, submits that when I considered the same question of inconsistency in Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 ("Parker Logan"), in which I found no inconsistency arose, I was directed to whether there was an inconsistency between cl 29(4) of the SEPP ARH and cl 4.6. Mr Pickles submits that the real inconsistency lies between cl 29(4) of the SEPP ARH and cl 4.3(2) of CBLEP, as cl 29(4) of the SEPP ARH is permissive, whereas cl 4.3(2) is prohibitive, on the same point. This means that cl 29(4) of the SEPP ARH prevails and the breach of the height development standard cannot form a basis for refusal.
In support of these submissions, the applicant relies on the decision of the Court of Appeal in Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 ("Hastings Point") concerning the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD), which was followed by Moore J in Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130 ("Eastern Suburbs Leagues"). In Hastings Point, McColl JA found that the imposition of a series of mandated states of satisfaction was inconsistent with the permissive purpose of Chapter 3 of the SEPP HSPD to allow development "despite the provisions of any other environmental planning instrument". Moore J, considered cl 4.6(4) similarly imposes a "series of mandated states of satisfaction to be achieved before the beneficial and facultative power to dispense with compliance with the development standards can be invoked" (at [104]. For those reasons, Moore J found that the Court is bound by the decision in Hastings Point that such mandates are inconsistent with the permissive purpose of Chapter 3 of the SEPP HSPD, and a cl 4.6 request is not required for the breach of a FSR development standard where the SEPP HSPD applies.
In any event, the applicant submits that if he is wrong on that point, the cl 4.6 request is satisfactory and the Court can be satisfied of the matters in cl 4.6(4) of the CBLEP and consent can be granted on that basis. The written request is dated November 2022, and argues that compliance with the height development standard is unreasonable or unnecessary in circumstances where the variation is numerically minor, and where the objectives of the standard are met notwithstanding the non-compliance. It also advances a number of grounds on which reliance is sought that there are sufficient environmental planning grounds to justify the contravention.

[7]

A clause 4.6 request is required

The problem with the applicant's submission concerning the inconsistency of the provisions in cl 29(4) of the SEPP ARH and cl 4.3(2) of CBLEP is that those provisions cannot be considered in isolation. Instead, cl 8 of the SEPP ARH requires that there be an inconsistency between the instruments.
Accordingly, cl 4.3(2) of the CBLEP must be understood in a context in which cl 4.6 also exists. Clause 4.3(2) establishes a development standard for height of buildings, and cl 4.6 sets out that consent cannot be granted for something that is in contravention of that standard unless certain requirements are met.
On the other hand, cl 29(4) of the SEPP ARH operates in a specific context. As I explained in Parker Logan (at [39]-[40]): "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 meant, 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)."
For the same reasons as those given in [41]-[42] of Parker Logan, I am of the view that there is no inconsistency between the SEPP ARH and the CBLEP concerning the breach of the height development standard: "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. 42 As such, the only way the consent authority, or the Court exercising the functions of the consent authority, can grant consent to development that contravenes a development standard is through cl 4.6 of the MLEP 2011. 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."
The terms of cl 29(4) of SEPP ARH are not inconsistent with the development standards in the CBLEP, including cl 4.3(2). Under both instruments, consent can be granted to development that breaches the height of buildings development standard. In the CBLEP, there are additional requirements to be met prior to such consent being granted, which are outlined in cl 4.6, but these additional requirements do not create an inconsistency with the SEPP ARH. This is quite distinct from the provisions of the SEPP HSPD considered in Hastings Point and Eastern Suburbs Leagues, in which cl 15 of the SEPP HSPD specifically states that the chapter "allows [the development] despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy". The provision in the SEPP ARH that allows the proposed boarding house development to be carried out (cl 28) does not contain equivalent wording, and cl 29(4) of the SEPP ARH has to be read in the context of that clause (Parker Logan at [39]-[40]) and can't be read more broadly to align with the wording of cl 15 of the SEPP HSPD.
For those reasons, both cl 29(4) of the SEPP ARH and cl 4.6 of the CBLEP continue to apply where cl 29(2)(a) is not engaged and there is a breach of cl 4.3(2). A cl 4.6 request is therefore required concerning the breach of the height of buildings development standard.

[9]

The request adequately addresses that there are sufficient environmental planning grounds

The Court has, on numerous occasions, explained that the focus of cl 4.6(3)(b) is "on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds" (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [24]).
Put another way, cl 4.6(3)(b) concerns the "why" of the contravention. That is, why does the contravention occur? There can often be simple explanations as to why a breach occurs. If that "why", or that explanation, constitutes an environmental planning ground or achieves an outcome that is an environmental planning ground, is particular to the circumstances of the proposed development on the site, and is sufficient to justify the aspect or element that contravenes the standard, then it follows that the satisfaction required by cl 4.6(4)(a)(i) in relation to (3)(b) would likely be reached if that explanation is contained in the written request.
Unfortunately, in the written request under consideration, under the heading "There are sufficient environmental planning grounds…", it does not actually focus on the contravention, contrary to the comments of Preston CJ in Initial Action quoted above at [37]. Instead, it contains general statements concerning the design of the development, its benefits and its compatibility with the streetscape and local character.
The second dot point below the heading concerning environmental planning grounds (Ex G p 7) is the only point that focuses on the aspect that contravenes the height development standard, and it makes only a scant reference to the reason for the additional height. It, of itself, would not be sufficient. Thankfully, it is elaborated elsewhere in the request. The request establishes that there are sufficient environmental planning grounds that justify the contravention by clearly demonstrating that breach results from the pitched roof form, which ensures that the development is compatible with the roof forms in the locality, which are dominated by pitched roofs. The proposed development could have complied with the standard if it had adopted a flat roof form, so the environmental planning ground that justifies the contravention is the use of a pitched roof form to achieve consistency with the roof forms in the vicinity of the site. I am satisfied that these environmental planning grounds are sufficient to justify the contravention given that the breaches are confined to elements of the pitched roof form.

[10]

The request adequately addresses that compliance is unreasonable or unnecessary

The first argument that the written request makes in support of addressing that compliance is unreasonable or unnecessary is that "compliance with the development standard is unreasonable and unnecessary where, in the particular circumstances of the case, there are sufficient environmental planning grounds to justify the proposed non-compliance" (Ex G p 4). I do not accept this argument as it confounds the two requirements of cl 4.6(3) and it is contrary to the established principles concerning cl 4.6 requests. The requirements are two separate requirements, and the written request needs to demonstrate both of these matters: Initial Action at [15], Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7. As such, the fact that there are sufficient environmental planning grounds does not inevitably lead to the conclusion that compliance is unreasonable or unnecessary in the circumstances.
Instead, the common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are those that are set out in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827: Initial Action at [16].
Consistent with the first of the ways described in Wehbe v Pittwater Council, the request then goes on to describe how the proposed development achieves the objectives of the height development standard notwithstanding the contravention, based on which compliance is unreasonable and unnecessary. By doing so, I am satisfied that the request has adequately addressed that compliance is unreasonable or unnecessary.
The objectives are set out above at [23]. I accept that the request adequately addresses that the first objective, "to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively contribute to the streetscape and public spaces" is achieved by demonstrating that the proposed development is of a scale and massing that is similar to the existing surrounding buildings, particularly the three-storey residential flat development to the immediate south, and presents as a two-storey building with the third storey upper level rooms contained within the roof, which is consistent with the two-storey character sought in the CBDCP. The roof form is compatible with the existing character, and the higher density form is consistent with the R3 medium density residential zone which will see the current low density character likely to change to a higher density residential form.
The second objective concerns protecting the amenity of residential accommodation, neighbouring properties and public spaces in terms of visual and acoustic privacy, and solar access and view sharing. I accept that the request adequately addresses that the second objective is achieved on the basis that the areas of non-compliance are minor and will not themselves result in any adverse impacts in terms of visual and acoustic privacy, solar access and view sharing.
The third objective concerns transitions in scale between medium and high density centres and adjoining lower density and open space zones. As set out in the written request, the site is not in a location that would necessitate a transition in scale to an adjoining lower density or open space zone.
Finally, the written request adequately addresses that the final objective, "to ensure that buildings respond to the natural topography of the area" is achieved by maintaining the majority of the proposed development below the height development standard, with only the elements of the pitched roof exceeding the standard.
For those reasons, I am satisfied that the written request adequately addresses that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the standard are achieved notwithstanding the breach of the standard.
I note that the written request could have alternatively addressed that compliance is unreasonable or unnecessary based on the very minor numerical breaches of the development standard, which are minor both in their vertical extent and their lateral extent, being confined to small areas at the peak of the pitch and with a maximum breach of 174mm. As acknowledged by the Court of Appeal in Fast buck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 at [9], a modest departure from a development standard is a basis upon which compliance with the standard can be seen to be unreasonable or unnecessary. However, this was not the basis advanced by the request, and my consideration of the matters in cl 4.6(4)(a)(i) requires that I confine my consideration to the adequacy of the request.

[11]

The proposed development will be in the public interest

Clause 4.6(4)(a)(ii) also requires that, in order to grant consent, the Court be satisfied that "the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone".
For the reasons set out above at [44]-[48], I am satisfied that the proposed development is consistent with the objectives of the standard. In relation to the second objective, which concerns protecting the amenity of residential accommodation, neighbouring properties and public spaces in terms of visual and acoustic privacy, and solar access and view sharing, my consideration above at [45] was constrained to additional impacts caused by the contravention of the standard, whereas cl 4.6(4)(a)(ii) requires consideration of the proposed development against the objectives. Nevertheless, there is no evidence of any adverse impacts on visual and acoustic privacy, and solar access and view sharing. The proposed development includes translucent glass for boarding rooms oriented to the neighbouring property, to prevent overlooking to 4 Swan Avenue, and the shadow diagrams demonstrate that there will not be any substantial overshadowing of neighbouring properties or public open spaces by the proposed development.
I am also satisfied that the propped development is consistent with the objectives of the R3 Medium density residential zone, based on the contents of the written request (Ex G p 7). The proposed development provides an alternative form of residential accommodation to the dwelling houses and residential flat buildings that are predominant in the area, and that form of accommodation is consistent with a medium density residential zone, and has good access to public transport and other facilities. This is consistent with the objective to "provide for the housing needs of the community within a medium density residential environment", and to "provide a variety of housing types within a medium density residential environment". Further, it is consistent with the third objective to "enable other land uses that provide facilities or services to meet the day to day needs of residents" in that it provides a form of affordable accommodation in proximity to other uses that meet the day to day needs of residents.

[13]

The permitted floor space ratio for the proposed development

The Council also contends that the proposed development should be refused as it does not comply with the "must not refuse" criteria in cl 29(1)(c)(i) of the SEPP ARH concerning FSR. Specifically, the Council says that areas that have been excluded by the applicant from the FSR calculation actually fall within the definition of "gross floor area" in the CBLEP and therefore should be included in that calculation. Those areas include the plant room, the waste room, some corridors and the water and onsite detention (OSD) tanks. The definition of "gross floor area" is as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
The Council's position is that the garbage room, laundry, bicycle parking and OSD tank are all in an area that does not fall within the definition of "basement" such that they should be included in the calculation of the gross floor area. The Council also submits that the enclosed horizontal communal access area at ground level, in the breezeway, is enclosed by external walls in the form of security mesh, and therefore ought to be included in the calculation of the gross floor area. In support of this submission, the Council relies on the decision in Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000, in which the Court found that a perforated metal screen formed an "outer wall" to the balconies which is not excluded from gross floor area.
The Council's position is supported by the evidence of Mr Giaprakas, who considers that the corridors are not "open breezeways" and at the ground floor it is fully enclosed and is considered gross floor area. He also opines that the OSD tank is partly above ground level and therefore cannot be defined as an area that is excluded from gross floor area, and that the basement does not fall within the definition under the CBLEP and therefore all areas form gross floor area.
Basement is defined in the CBLEP as follows: basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing).

[14]

The proposed development complies with the floor space ratio permitted by cl 29(1)

The applicable FSR permitted on the site, pursuant to cl 4.4 of the CBLEP and by the application of cl 29(1)(c) of the SEPP ARH, is 1:1. I accept the calculation of gross floor area advanced by the applicant, which is 514m2, which complies with the "must not refuse" criteria of a FSR of 1:1.
For an area to be calculated as gross floor area, it must be a floor area within "an internal face of external walls" or within "the internal face of walls separating the building from any other building", and must not be excluded by the definition.
In accepting the calculation gross floor area of 514m2, I note that the areas of the staff bathroom and laundry have been included as gross floor area. I accept the applicant's position that the water and OSD tank should be excluded from gross floor area on the basis that it is either a "plant room" or an area used for services, and that the garbage room is within an area that meets the definition of basement and is therefore excluded as basement garbage.
With respect to the areas for horizontal circulation described as breezeways, there is no doubt that the first floor and upper level are not a floor area "measured from the internal face of external walls" because those areas are not floor area enclosed by external walls that can be measured at a height of 1.4m above the floor, and instead have openings and outer walls less than 1.4m high. I also consider that the wire mesh on the breezeway at the ground floor is not an external wall such that that area is required to be included in gross floor area. Instead, consistent with the decision of the Court in HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243, the external walls of the building at the ground floor are those that enclose the boarding room, the communal living room and the other rooms adjacent to the corridor, such that the area within the corridor, described as a breezeway, is an external space. That external space functions in a similar way to a balcony or terrace with an outer wall less than 1.4m, and wire mesh above for the purpose of security. For those reasons, the external wall of the building are those walls that enclose the internal rooms, such that the area of the breezeway is an external space to those walls and falls outside the chapeau of the definition of gross floor area, so that it is not counted as such.
The proposed development therefore complies with the "must not refuse" criteria in cl 29(1)(c)(i) concerning FSR, which means that the proposed development cannot be refused on the basis of density and scale.

[16]

The design of the proposed development is compatible with the local character

I do not accept the Council's position that the design of the proposed development is not compatible with the character of the local area. Mr Giaprakas does not give evidence that the design itself is incompatible with the local character in some way, but instead opines on what a more appropriate development could be. There is no analysis by Mr Giaprakas of the rhythm of the built forms surrounding the site, to support the Council's position that the design is contrary to that rhythm. As such, there is very little evidence in support of the Council's position.
Instead, I accept the evidence of Mr Robinson that the southern end of Swan Avenue is predominantly characterised by single and two-storey dwellings, whilst Cooper Street is characterised by two and three-storey 'walk-up' residential flat buildings with some single storey dwellings and a recently constructed two-storey boarding house. I accept his evidence that in this context, the form and scale of the proposed building is compatible with the character of the built form within the visual catchment surrounding the site. Indeed, the design of the proposed development follows a similar form to what exists in the visual catchment of the site, with face brickwork and a pitched roof. Consistent with the desired future character for two-storey development, the proposed development is designed to present as two storeys, with the upper level rooms contained with the pitched roof form. To the extent that it is perceived as being three storeys, that is nonetheless compatible in the context of the site given the three-storey residential flat buildings located on Cooper Street. Whilst Mr Giaprakas would prefer a different form of development, that is not what arises for consideration in addressing cl 30A of the SEPP ARH. He has not given evidence that anything about the design is incompatible in the streetscape or the visual catchment. Instead, it is building designed to address the corner and draw on elements that are already existing in the visual catchment. For those reasons, I consider that its design is compatible with the character of the local area.

[17]

The number of storeys

The Council contends that the proposed development should also be refused on the basis that it exceeds the maximum allowable rise of two storeys, as prescribed by the CBDCP, which results in poor amenity for subterranean ground floor habitable rooms and "constrained habitable and communal access spaces within the roof form at level 2". This is supported by the evidence of Mr Giaprakas, who opines that the storey control sets the desired future character for the R3 Medium density residential zone, and that the three-storey design of the proposed development across the entire building footprint does not appropriately relate to the topography of the land, which results in the building becoming more dominant within the streetscape and against adjoining development as it progresses to the rear of the site.
The two-storey control in the CBDCP applies to residential flat buildings, multi-dwelling housing and dwelling houses. Whilst it does not strictly apply to the proposed development, I agree with the Council's position that it sets the desired future character for the area. However, there are four reasons why I consider that the proposed development is acceptable notwithstanding that it breaches the two-storey control.
Firstly, contrary to the position of Mr Giaprakas, the proposed development is not three storeys across the entire site. Instead, part of the first floor falls within the definition of a basement, and, due to the topography of the site and a slight split of that level, on its western edge that same floor level opens out to a rear ground level terrace. Although there are three levels of development, the design of the ground floor follows the topography of the site and the lower levels of the ground floor fall within the definition of a basement. This also has the result of the building presenting as two storeys to Swan Street.
Secondly, the proposal for a three-storey development is responsive to the current context of the site, with the prevalence of three-storey residential flat buildings located opposite the site on Cooper Street.
Thirdly, the design of the upper storey within the pitch of the roof ensures that the third storey is recessive.
Fourthly, the proposed development largely complies with the height development standard and I have accepted a cl 4.6 request with respect to the minor breach of the standard, which occurs only due to the pitched roof form.
For those four reasons, taken together, I consider that the number of storeys of the proposed development, as designed, is acceptable in its context.
In advancing this contention, the Council also raised the issue of the amenity of the boarding rooms. I deal with the amenity of the boarding rooms separately below.

[18]

The amenity of the boarding rooms

The Council contends that there are a number of aspects of the boarding house and its rooms that result in poor amenity, which is another reason why the proposed development should be refused. Those aspects of the boarding rooms are as follows:

There are double beds in the single rooms, which are misleading as to their capacity.
The gross floor area of the boarding rooms does not meet the "must not refuse" criteria in the SEPP ARH when having regard to a deduction for the area around the kitchen facilities and a deduction for areas with lower roof levels on level 2.
The accessible room and the manager's room will not receive adequate sunlight due their subterranean floor level.
The boarding rooms receive inadequate sunlight and ventilation.
The raked ceiling design of the boarding rooms on level 2 does not provide quality spaces for future residents.
The reduced floor level and step into room 2.04 constrain access for entry to and exit from the boarding room, and the increased ceiling height will result in an "unusual internal proportion".
The proposed development does not include a mechanical lift.
The single central stairs will give rise to a high volume of pedestrian movement and activity and cause noise impacts.
Travel paths for access to the waste bins is excessive.
The private open space of the manager's room is located along the northern side boundary and will give rise to ongoing noise impacts for residents at 4 Swan Avenue.
The communal open space is not open to the sky and will receive very little direct sunlight.
The windows in the northern elevation at levels 1 and 2 have a poor outlook to the southern side of 4 Swan Avenue.
The detailed room layouts do not make provision for kitchen or bathroom exhaust or ducting, or for the position of the refrigerator.
There is no access to the front yard area on Swan Avenue from within the building.
The laundry cupboard on level 2 is impractical.

The Council does not advance any specific planning control in support of this contention, but relies on the evidence of Mr Giaprakas.
I deal with each of the particulars separately below. For the reasons expressed below, I am of the view that none of the matters raised by the Council concerning the amenity of the boarding rooms warrant refusal of the development application.

[21]

The floor areas of the boarding rooms meet the "must not refuse criteria"

Firstly, the words in cl 29(2)(f) concerning the accommodation size use the expression "gross floor area". Pursuant to cl 4(2) of the SEPP ARH, a word or expression used in the SEPP ARH "has the same meaning as it has in the standard instrument (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011) unless it is otherwise defined in this Policy". The effect of this is that the calculation of the gross floor area (before a deduction is made for kitchens and bathrooms) must be consistent with the definition of gross floor area in the Standard Instrument (as quoted from the CBLEP above at [55]), with obvious adjustments so that references to "external walls" or "walls separating the building for any other building" are construed as meaning the walls of the boarding room. Accordingly, the gross floor area of each boarding room is the floor measured from the internal face of the boarding room wall, measured at a height of 1.4m above the floor.
Secondly, contrary to the evidence of Mr Giaprakas, there is no evidence of non-compliance with the requirements in the National Construction Code in F3.1(a)(iv)(A)(bb), which requires that a habitable room with a sloping ceiling or projections below the ceiling line have ceilings of "a height not less than 2.4m for not less than two-thirds of the floor area of the room or space". Each boarding room is a habitable room and there is no contention that a different requirement under the National Construction Code applies. Whether the boarding rooms are separate domiciles has no bearing on compliance with this requirement, and, contrary to what is expressed in the evidence of Mr Giaprakas, the applicant need not rely on level 2 being defined as an "attic". The plan of the Level 2 room heights demonstrates compliance with the requirement in F3.1(a)(iv)(A)(bb) (although the percentage for rooms 3.03, 3.04 and 3.05 isn't calculated). This is supported by the Building Code of Australia Design Compliance Report dated 23 September 2016 at item 32, which clearly relies on the requirement in F3.1(a)(iv)(A)(bb) and confirms that the proposed development can readily comply. In any event, compliance with the National Construction Code is relevant to the assessment of the merits of the boarding rooms but, in the present circumstances, is not relevant to the calculation of the room size.
Thirdly, the area excluded for the kitchen and bathroom does not reduce the floor area to the extent contended by the Council. Instead, I am satisfied with the particulars of the kitchen provided, which include a fridge, and that it is the area of that kitchen unit that is excluded from the accommodation size calculation. That a larger fridge might be required is purely speculative, and I do not accept that an arbitrary area in front of each kitchen is required to be excluded from the floor area of the room if that area forms part of the general circulation area of the room. In that respect, I agree with the decision of Commissioner O'Neill in Makki Holdings Pty Limited v Hurstville City Council [2015] NSWLEC 1153 that the text of cl 29(2)(f) does not require the exclusion of some ad-hoc dimension and "the area to be excluded from the gross floor area calculation is only that devoted to the kitchen facilities, being the benchtop area in plan" (at [19]).
For these reasons and based on the detailed room layout plans showing the typical boarding rooms layouts and floor area calculations, I am satisfied that the accommodation size meets the "must not refuse" criteria in cl 29(2)(f) of the SEPP ARH for each of the single rooms and the double rooms proposed. This means that the proposed development cannot be refused on the basis of the accommodation size.

[35]

Excessive excavation

The Council contends that the proposed development is not acceptable having regard to the excessive excavation proposed on the site, which is contrary to the objectives in Part E3.1 of the CBDCP and the Control C3 which requires habitable rooms to be located above the existing ground level. The controls do not strictly apply to boarding houses, but C2 and C3 as follows: "C2. Cut and fill should not alter natural or existing ground levels by more than 600mm. C3. Habitable rooms (not including bathrooms, laundries and storerooms) are to be located above existing ground level."
The objective of these controls is to "ensure that the natural topography and landform is maintained and the amount of excavation is minimised."
The manager's room, the communal room and the accessible room are all at a finished floor level of RL15.95, whereas the natural ground level at present in those areas is RL 17.27, 16.88 and 16.73 respectively, as the land falls from the north to the south. Mr Giaprakas' evidence is that these rooms are subterranean spaces that do not receive adequate sunlight.
Mr Robinson's evidence is instead that each of the three rooms will still achieve an acceptable level of amenity. In particular, he points out that the accessible boarding room has an outlook to Cooper Street and to the landscape area adjacent to the car parking space, and the communal room opens into the communal open space and looks out to the motorcycle parking and landscaping in the north-western area of the site. As such, he opines that although excavation is required, they are not subterranean. With respect to the manager's room, Mr Robinson points out that it opens onto a private courtyard that is set below the existing ground level, and provides an outlook to the landscaping along the northern boundary.
I accept Mr Robinson's evidence that each of the three habitable rooms on the ground floor will still achieve adequate amenity despite some excavation being required, for the reasons set out by him. Each of those rooms has an outlook or access to an open space at the same floor level as the room. The extent of the excavation that is required for the ground floor varies as a result of the topography of the site and the design of the development to include the services, bicycle parking and garbage areas in a basement area. In circumstances where the controls in Part E3.1 of the CBDCP do not strictly apply to the development application, and where I have found that the habitable rooms that have finished floor levels below the natural ground level have adequate amenity, the extent of excavation proposed is acceptable.

[38]

Final orders

As considered above, I find that the proposed development is acceptable in its context and is designed in a manner that draws on elements from what exists in the visual catchment of the site. As such, it is compatible with the character of the local area. It complies with the 'must not refuse' criteria in cl 29 of the SEPP ARH concerning density and scale, landscaped area, solar access, private open space and accommodation size. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard, that the rooms have adequate amenity, and I accept the agreement of the traffic engineers' that the parking arrangements are acceptable. As set out above, none of the contentions raised by the Council warrant refusal of the development application. As such, there is no basis to refuse the development application and it should be granted accordingly subject to appropriate conditions of consent.
In addition, consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Given the history of the use of the site for residential purposes, the site is unlikely to be contaminated.
There is one condition of consent that remains in dispute, condition 115, concerning the number of occupants permitted in each room. The Council says that the number of occupants in each room should be constrained by the floor area of the room, calculated by deducting an area of space around the kitchen and bathroom to access and use those facilities, and also by excluding areas where the ceiling heights are less than 2.4m.
As explained above at [83], the appropriate calculation of the floor area of the rooms is by reference to the area measured from the internal face of the boarding room wall, measured at a height of 1.4m above the floor. Based on the same (with a deduction for the bathroom and kitchen), each of the proposed boarding rooms meet the requirements for accommodation size in cl 29 of the SEPP ARH such the occupancy sought by the applicant is appropriate. Accordingly, the condition limiting the occupancy of the boarding rooms (condition 115) should reflect the occupancy as sought by the applicant.
The Court orders that: 1. The appeal is upheld. 2. The development application (DA 2021/0179) for the demolition of the existing dwelling house and construction of a 18 room boarding house (incl. Manager's room) at 2 Swan Avenue, Strathfield pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009, is determined by the grant of consent subject to the conditions in Annexure A. 3. Exhibits 1-3, 5 and 6 are returned, and the remaining exhibits are retained.

Sung v City of Canada Bay Council

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