Urban Revolutions Pty Limited (trading as Urban Property and Land) v The Hills Shire Council

Land and Environment Court (NSW)|2016-06-02

Solicitors: Applicant: Addisons Lawyers Respondent: Marsdens Law Group File Number(s): 2016/ 159472

Judgment

COMMISSIONER: The applicant appeals The Hills Shire Council's refusal of Development Application 561/2015/HA for the construction of a boarding house at 36 Kathleen Avenue, Castle Hill (the site). The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal and relevant background

The Development Application refused by council on 20 April 2015 originally proposed the demolition of the dwelling and other structures on the site and the construction of a three level, 24 room boarding house comprising:

A basement level containing parking spaces for 10 cars, 5 bicycles, 5 motor bikes, storage bays, common laundry, lift and 3 self-contained units, one of which to be occupied by a caretaker, the other two as ambulant units.
Ground floor containing 10 self-contained units, common area, library, common outdoor barbeque and clothes drying area.
First floor containing 11 self-contained units.
External air-conditioning plant and equipment area located above the common outdoor/barbecue area.

The applicant filed the Class 1 Application with the Court on 19 June 2015. The matter was listed for a conciliation conference on site on 11 September 2015 under s 34 of the Land and Environment Court Act 1979 (Court Act). I facilitated the s 34 conciliation however as there was no agreement between the parties, the conciliation was terminated. As is usual in these procedures, a number of residents made oral submissions opposing the development.
In November 2015 the Registrar granted the applicant leave to rely on amended plans. The amended proposal reduced the number of boarding rooms from 24 to 19, removed the caretaker's unit and one of the ambulant units. Other external and internal design changes were made, including changes to the landscape plan; setbacks and deep soil areas increased; and site coverage decreased.
Following the joint conferencing of the parties' urban designers, further modifications to the proposal were agreed including: the deletion of unit 19, an additional setback to unit 3, and the reintroduction of a resident caretaker.
The hearing commenced on site on 18 February 2016. Apart from providing another opportunity for the local residents to comment on the amended plans, it was deemed necessary to revisit the site in order to clarify the revised setbacks and to further consider urban design aspects of the proposal. During this site inspection, I identified potential problems in regards to the proposed levels in the front setback and driveway in the light of the intent to retain a large and prominent Eucalyptus microcorys (Tallowwood) on the street frontage. Similar concerns were raised in respect of a Syncarpia glomulifera (Turpentine) on the western side boundary of the adjoining property to the east. The matter proceeded back to Court for opening submissions, however given the potential tree retention problems, leave was granted to adjourn the hearing to enable further arboricultural assessment.
In the ensuing time, the applicant engaged Mr Guy Paroissien, Consulting Arborist, to undertake root mapping of the trees and to make recommendations for their retention. Mr Paroissien's advice was provided to other consultants, including the parties' planning, urban design and traffic experts, and the plans were further amended to accommodate these findings. The changes necessitated further consideration of the front pedestrian pathway and the design of the driveway. The relevant experts prepared supplementary reports.
The hearing recommenced on 1 June 2016. I granted the applicant leave to rely upon the further amended plans [Exhibit E]. The council did not object, subject to an order for costs pursuant to s 97B of the EPA Act. Those orders are formally recorded at the end of this judgment.
The proposal now before the Court comprises:

Basement level parking for 8 cars, 4 motor bikes and 4 bicycles, common laundry, bin storage, air conditioning plant, lift entry;
Ground floor containing nine self-contained units (units 1-9), in effectively two pavilions - five in the front pavilion, four in the rear pavilion; the area between the two pavilions contains the common indoor and outdoor areas and library/common area.
First floor containing nine self-contained units (units 10-18) - five in the front pavilion and four in the rear pavilion with a corridor connecting the two pavilions. Skylights have been added to the roof above the common area.
A separate, accessible, and curved pathway/ramp has been located towards the south-western end of the front setback. The driveway has been narrowed and the exit/entry moved closer to the eastern boundary.
The landscape in the front setback has been modified to retain a more natural grassed bank to the street frontage.

The issues

In its Amended Statement of Facts and Contentions (SFC) [Exhibit 3], prepared after the conciliation conference, prior to the first hearing date, and on the basis of the first amended plans, the council provided the following reasons why consent should be refused. The amended SFC retains a number of particulars arising from the original plans the subject of the conciliation with some particulars deleted and others added. The contentions as numbered are summarised [key issues in bold]: 1. The Floor Space Ratio (FSR) is excessive and inconsistent with the bulk and scale of adjoining residential development. 2. Incompatible with the existing and desired future character of the area; - setbacks, site coverage, landscaping, scale, form and design, extent of excavation, landscape treatment in front setback, visual dominance of the driveway. 3. Landscape treatment of the front setback is incompatible with the streetscape; hard landscaping, ramp and minimum area. 4. [Building entry] - addressed and therefore not pressed. 5. Solar access - insufficiency of information having regard to SEPP 65. 6. [Subterranean units] - units deleted; not pressed. 7. Tree removal/ impacts on trees - including neighbouring trees; extent of removal, impact on street character, replacements. 8. State Environmental Planning Policy No. 65 (SEPP 65) - inconsistent with "Design Quality Principles" for a range of attributes including 'context', 'scale', 'built form', 'density', 'landscape', 'amenity', 'cross ventilation', 'solar access'. 9. Excessive site coverage - leading to insufficient landscaping. 10. Unreasonable visual bulk and impact on the amenity of neighbouring properties including overlooking/privacy - orientation of units to side boundaries; design, location and number of windows; side setbacks; building length; proximity of basement to side boundary; building design. 11. The development does not contribute to orderly development and is excessive in its intensity - will house too many people giving rise to unacceptable impacts on the amenity of neighbouring properties. 12. The dwelling size is excessive - rooms too large. 13. Cut and fill is excessive - impacts on neighbouring properties and proposed ground floor units at the rear. 14. The development will create an unacceptable precedent. 15. Not in the public interest given the contentions raised and the submissions from residents; absence of a resident caretaker.
Following the further joint conferencing of the experts and the further refinements to the plans, the council now presses the following contentions: 1. Floor space ratio 2. Character 3. (11) Orderly development and intensity 4. (15) Public interest - objectors' submissions.

The assessment framework

The development is proposed under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) - Division 3 - Boarding houses. The relevant aims of the policy in cl. 3 are: (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, (f) To support local business centres by providing affordable rental housing for workers close to places of work.
Clause 4(1) defines accessible area. The site is within an accessible area as it is within the specified walking distance from a railway station and a bus stop used by regular bus services. Also relevant, cl. 4(1) defines existing maximum floor space ratio as: The maximum floor space ratio permitted on the land under an environmental planning instrument or development control plan applying to the relevant land, other than this Policy or State Environmental Planning Policy No 1 - Development Standards.
Clause 8 states that if there is any inconsistency between SEPP ARH and any other environmental planning instrument, the SEPP prevails.
Boarding houses are permitted in land zoned R2 - Low Density Residential as long as the land is within an accessible area (cls. 26, 27(1)). This applies to the site.
Clause 29 Standards that cannot be used to confuse consent - is relevant. Subclause 29(1)(a) states that a consent authority must not refuse 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 (FSR) are not more than the existing maximum FSR for any form of residential accommodation permitted on the land.
Subclause 29(2) considers compliance with controls including: building height: - proposed buildings are not greater than the maximum permitted height; landscaped area - landscaping of the front setback is compatible with the streetscape; solar access - at least one communal room receives a minimum of three hours of direct sunlight between 9am and 3pm in mid-winter; private open space - one common area of a minimum 20m2, plus an area of at least 8m2 for a boarding house manager; parking - in an accessible area of at least 0.2 parking spaces for each boarding room; accommodation size - each room, excluding kitchen and or bathroom, of at least 12m2 for a single room and 16m2 for more than one person.
Subclause 29(4) states that: 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).
The proposed development complies with the controls in cl. 29(2) although the number of car spaces in excess of the minimum required by the SEPP was raised during submissions.
Clause 30 sets out the standards for boarding houses. Relevantly, no boarding room, excluding kitchen and bathroom facilities, is to have a gross floor area more than 25m2 or be occupied by more than 2 adult lodgers. If the boarding house has the capacity to accommodate 20 or more lodgers, a room or on site dwelling must be provided for a boarding house manager. The proposal complies with these controls however the overall issue of density is pressed by council.
Central to council's contentions is cl. 30A Character of the local area - which states: 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 site is zoned R2 Low Density Residential in The Hills Local Environmental Plan 2012 (THLEP). Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application. Amongst other uses, boarding houses, dual occupancies, dwelling houses and group homes are all forms of residential accommodation permitted with consent in the R2 zone. The zone objectives are: To provide for the housing needs of the community within a low density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To maintain the existing low density residential character of the area.
The proposed building complies with the 9m building height development standard in cl. 4.3 THLEP. Clause 4.4 provides the FSR controls. The relevant objective in subcl. 4.4(1)(a) is "to ensure development is compatible with the bulk, scale and character of existing and future surrounding development". The FSR map referred to in subcl. 4.4(2) does not prescribe an FSR for development on the site and the surrounding locality.
The Hills Development Control Plan 2012 (THDCP) applies to the site. The council presses the following relevant sections. Part B Section 2: Residential development 2.5 Streetscape and character Objectives (i) To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements surrounding development. (ii) To ensure that new development is sensitive to landscape setting and environmental conditions of the locality. (iii) To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development. (iv) To encourage streetscape variation whilst maintaining a high level of amenity for the development. (v) To ensure that development respects and enhances the green and garden character of the Hills Shire. (vi) To achieve development that respects and makes a positive contribution to the character and 'sense of place' of Castle Hill. (vii) To enhance the visual attractiveness, safety and security and personal comfort of streets and public and semi public places. Development controls (a) The proposed development must: * contribute to an attractive residential environment with clear character and identity, * address the street and boundaries to the site with a building form compatible with adjoining development in terms of street elevation and presentation, (b) The proposed development should maintain neighbourhood amenity and appropriate residential character by: * providing building setbacks that progressively increase as wall height increase to reduce bulk and overshadowing; * using building form and siting that relates to the land form; * adopting building heights at the street frontage that do not dominate the streetscape; * retaining where possible and providing landscaping in the front and rear yards in particular tall planting in scale with the building proposed; and * considering where buildings are located on neighbouring properties. 2.14.1 Building setbacks (summarised) Primary road frontage setback of 10m Minimum side boundary setback - 1 or 2 storeys of 900mm, 3 storey 1500mm Minimum rear boundary setback - one storey element 4m, 2-3 storey 6 m. 2.12.2 Site coverage (summarised) In residential zones (except E4) a maximum of 60% of site area 2.14.5 Landscaping and open space (summarised) In residential zones (except E4) a minimum of 40% of site area
The FSR for dual occupancies of 0.5:1 is found in Part B, Section 3, cl. 2.1(c) in THDCP. This Part includes detailed objectives and development controls for dual occupancy development.

The hearing and evidence

As previously stated, the hearing commenced on site on 18 February 2016. A number of objectors made oral submissions in addition to written submissions included in the council's bundle of evidence. The issues raised by the residents are summarised as:

Unacceptable precedent;
Economic returns to the developer at the cost of street character and the amenity of neighbours;
Due to the limited side setbacks, approval of the proposed development would limit the development potential of adjoining land;
Given the scale, number of storeys, number of units and internal layout, the development would otherwise be defined as 'apartments', which amongst other things would require a side setback of 6m.
Unacceptable impacts on the amenity of neighbouring properties arising from noise generated by the number of residents and air conditioning units;
Excessive FSR and therefore unacceptable bulk and scale which is out of character with the street and this part of Castle Hill;
Unacceptable impacts of noise, vibration, and truck movements arising from the proposed excavation;
Questionable solar access and other amenity considerations for future residents;
Impacts on trees on the site and adjoining land;
Inadequate replacement of trees; and
On-street parking and traffic safety issues arising from the increase in density.

The following experts prepared joint and or single reports and or gave oral evidence. Area of expertise For the Applicant For the Council Urban Design Mr Peter Smith Ms Gabrielle Morrish Planning Ms Clare Brown Mr Claro Patag Arboriculture Mr Guy Paroissien - Traffic Mr Craig McLaren Structural engineering Mr Andrew Cutuk

The urban design and planning experts considered the following issues: FSR - bulk and scale; character and streetscape including landscaping; amenity and solar access. In addition, the planners addressed the issue of density. The urban designers and the planners each prepared an initial joint report. Prior to the recommencement of the hearing, following the provision of amended plans and new or supplementary reports from other experts including Mr Paroissien, Mr McLaren and Mr Cutuk, the experts prepared supplementary joint reports.

Arboricultural evidence

Mr Paroissien was not the arborist who prepared the original tree assessment advice to the applicant. He was engaged by the applicant after the adjournment of the hearing specifically to address concerns raised by me (and local residents - including an arborist's report prepared for several of the resident objectors) about the practical retention of the Tallowwood and Angophora in the front setback and the Turpentine on the boundary of the property to the east. Mr Paroissien inspected the trees and undertook a root mapping exercise, excavating by hand, a number of trenches at critical locations. In his initial report (Exhibit F) and his supplementary report (Exhibit G) Mr Paroissien concludes that the trees can be successfully retained and makes a number of general recommendations including the need for the preparation of a detailed 'Tree Protection Plan' in accordance with the principles and specifications in AS4970 - 2009 Protection of trees on development sites.
In oral evidence, Mr Paroissien confirmed that the notes shown on the Tree Protection Zone Plan - Drawing 25/2 had not been prepared by him and did not constitute a Tree Protection Plan as specified in AS4970. He also agreed that any tree protection measures, such as fencing and ground protection, should be included on a range of other plans including those for demolition and bulk earth works.

Traffic and parking

The tree protection measures identified by Mr Paroissien necessitated the redesign of the proposed driveway, specifically reducing the width to 3.5m at the boundary and thus rendering it capable of accommodating only one vehicle at a time. Mr McLaren, the applicant's traffic expert, reviewed the revised plans, the category of the connecting roadway, and the on-site parking, in the light of the relevant standard AS2890.1 - 2004.
Mr McLaren's reports (Exhibits H and J) detail the expected traffic volume arising from the proposed eight parking spaces. He finds that the proposed driveway design with a 3.5m width at the boundary and 5.6m width further into the site (which facilitates two-way passing) exceeds the requirements in the Standard. Whilst he acknowledges that the driveway exceeds the maximum gradient of 5% for the first 6m, as specified in AS2890.1, he states that the slope of the driveway down to Kathleen Avenue provides drivers exiting the site with an elevated position from which passing vehicles and pedestrians can be easily seen. Mr McLaren concludes that the amended design is acceptable on grounds of both safety and functionality.
Mr McLaren was not required for cross-examination.

Structural engineering

In response to submissions made by a number of residents in regards to potential problems arising from the proposed excavation, the applicant engaged Mr Andrew Cutuk, Principal Engineer of CAM Consulting, to carry out a geotechnical assessment and review the plans. In his report (Exhibit K) Mr Cutuk states that the geotechnical assessment of soil strata concludes that there are no geotechnical issues, including no slip or water table issues, on the site that would restrict the proposed excavation. The recommendation is to use piles and shotcrete walls where the excavation is relatively close to the boundary. In Mr Cutuk's opinion, the proposal poses no risks to neighbouring properties.
Mr Cutuk was not required for cross-examination.

Planning evidence

In their first joint report (Exhibit 7) the planners agreed that the bulk and scale of the building as indicated in the (first) amended plans is reduced as: the building is set further into the ground at street level with no more than 1200 mm of the basement protruding above ground level; the access ramp is aligned perpendicular rather than parallel to the street; and the landscaping in the front setback is increased with measures included to retain the Angophora. In their view this removes the applicability of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65). In their supplementary report (Exhibit 11), the planners agree that the bulk and scale is now acceptable and that all issues identified under contention #1 in their first joint report are resolved.
In regards to character and the landscaped front area, contentions #2 and #3, Mr Patag defers to Ms Morrish, council's urban design expert. Ms Brown considers that the proposed development is compatible with the existing and desired future character of the area. She states that given the site is 400m from the new Showground Station and in the light of the NSW Government's Showground Station Precinct Plan currently on display, the general area has been identified as an area suitable for medium density housing/ townhouses with building heights in the order of 2-3 storeys. Therefore in her opinion, the future character of the area is one of higher density rather than the current older stock of smaller dwellings on large blocks. Ms Brown also notes that the proposed building complies with the development standard for building height and the following controls in THDCP:

Maximum width of building as a % of the site width: control = 80%, proposed = 75%.
Minimum side boundary setback for a 1 or 2 storey building; control = 900mm; proposed = 3000 mm on both sides.
Minimum rear boundary setback: control = 6m; proposed = 6m.
Maximum site coverage: control = 60%; proposed = 57.04%.
Maximum building footprint: control = 45%; proposed = about 40%.

The planners agree that the amendments show an acceptable treatment of the front area. Ms Brown opines that the landscape treatment is appropriate and compatible with the streetscape.
In their supplementary report, the planners agree that the following issues identified in the original Statement of Facts and Contentions have been resolved by the further amended plans: solar access, tree removal, SEPP 65, site coverage, building size, and cut and fill (contention numbers 5,7,8,9,12,and 13). They agree that the issues concerning the retention of the Tallowwood and the Turpentine trees have been resolved and that the tree protection measures recommended by Mr Paroissien should be implemented.
In regards to amenity and visual bulk, Mr Patag defers the issue of privacy and overlooking to the residents. Ms Brown states that the design and location of windows and recessed areas, as shown in the further amended plans, will preclude overlooking and loss of privacy to neighbouring properties.
The only key outstanding issue is whether the intensity of the development is acceptable. Mr Patag referred to the Hills Corridor Strategy which indicates a possible future density of 39 dwelling per hectare. Mr Patag is of the opinion that as each of the 18 units could accommodate up to two people, the intensity of the development is excessive. He believes that this could be resolved if a condition was imposed restricting the number of occupants to 19. Ms Brown considers the proposal provides quality boarding house accommodation with high internal amenity and represents orderly and economic development of the site in an area which she regards as being in transition.
In cross-examination, Mr Seton pressed council's contention that the proposed FSR of at least 0.79:1, or by his calculations up to 0.83:1 if excessive parking provision is included, exceeds the maximum FSR defined in SEPP ARH, that is, the maximum FSR specified for any residential development in the R2 zone which in this case is 0.5:1 for dual occupancies. In particular Mr Seton questioned Ms Brown as to why car parking in excess of that is required by SEPP ARH was included in the calculations. He cited the Planning Principle on the relationship between density and residential character in Salanitro-Chafel v Ashfield Council [2008] NSWLEC 366 at [23] and [27] which state [relevantly]: 23 The Ashfield planning controls are not unusual in that they do not contain a maximum FSR for dwelling houses….The question arises: is there an upper level of density above which it is hard to achieve compatibility with the character of typical single-dwelling areas? 27 The above suggests that there is a general acceptance by the planning profession than an open suburban character is most easily maintained when the FSR of buildings does not exceed 0.5:1. The question raised above may therefore be answered thus: The upper level of density that is compatible with the character of typical single-dwelling areas is around 0.5:1. Higher densities tend to produce urban rather than suburban character. This is not to say that a building with a higher FSR than 0.5:1 is necessarily inappropriate in a suburban area; only that once 0.5:1 is exceeded, it requires high levels of design skill to make a building fit into its surroundings.
Ms Brown maintains that SEPP ARH does not set a maximum number of spaces. She stated that apart from dual occupancies, there is no FSR prescribed for any other form of residential development; in her view there is no typical FSR, but considers that while there are some modest houses in the vicinity, the existing FSR in the area would exceed 0.5:1 and there are many examples of much larger dwellings on similarly sized sites elsewhere in The Hills Shire. Given the absence of an upper limit Ms Brown opines that this enables developments with FSRs greater than 0.5:1 and that both the LEP and the DCP facilitate the construction of larger dwellings. She notes that the dwelling is articulated and maintains the 10m front setback; she also cites Mr Patag's oral evidence provided below.
Mr Patag considers that if council's DCP controls for setbacks were applied to a dwelling on this site then it could result in a single dwelling of this size with a similar building envelope. He states that given the side, rear and front setbacks shown on the latest plans, the proposal achieves a similar character and built form, and that the FSR would not be dissimilar to any likely future development.
Mr Seton questioned the planners as to why they focussed on future character and not the existing character as required by the zone objective for the R2 zone and by cl. 30A of SEPP ARH. Mr Patag reiterated that if someone applied for a dwelling on the site with the same setbacks, footprint and so on it would comply. Ms Brown stated that new development is not of the same modest style of many of the older dwellings in the area.
In answer to questions from Mr Staunton, Mr Patag agreed that with the introduction of the nearby station, any redevelopment is likely to result in larger, but still permissible, buildings. Mr Patag also agreed with Mr Staunton that according to studies/statistics there is a shortage of affordable rental housing in The Hills Shire. He concurred with Ms Brown that it is possible that there may be some future up-zoning of the area to R3 Medium Density Residential and that SEPP ARH would also apply to that zone. Mr Patag also accepted that when development applications are assessed, the future character of an area is considered.
During the hearing the planners agreed that an area of suitable private open space for the caretaker could be provided if unit 5 were nominated for the caretaker's use and a fence erected to separate the private open space from otherwise generally accessible areas of landscape. This resolves one aspect of the contentions regarding the public interest.

Urban design evidence

In their first joint report (Exhibit 6), the urban designers agreed that apart from reducing the overall height, the lowering of the building by 1.6m also eradicates the need for high fences and walls along the side boundaries. They agreed that in order to reduce the visual bulk to the eastern boundary, a number of apartments and other elements should be redesigned to move the bulk of the units further into the centre of the site and reduce the width of the building at the street. They later agreed that this could be achieved by deleting unit 19 and by breaking the building into two pavilions thus also reducing the length of the building along the eastern boundary.
As these amendments have been incorporated into the further amended plans, the urban designers are satisfied with the proposed bulk and scale of the building.
In their Addendum to their Joint Report (Exhibit 10) the urban designers agree that the contentions have been resolved or where not resolved, could be with the imposition of conditions of consent. The addendum addresses Mr Paroissien's recommendations for the retention of the Tallowwood. Ms Morrish states that in her opinion this tree is an important element in the existing streetscape and will contribute to ensuring the development is compatible with the character of the local area.
The works required to retain the tree, including the necessary reduction in the width and increased slope of the driveway, necessitate an accessible pedestrian entry path. The urban designers are satisfied that the further amended plans illustrating the alignment of the path and heights of associated retaining walls provide an acceptable solution.
Given this agreement, it is inferred that that the principal issue of character has been resolved. The urban designers were not required for cross-examination.

Submissions

Mr Staunton submits that this is an appeal against council's actual refusal of a significantly larger development which has now been substantially refined to the extent that all controls, with the arguable exception of FSR, have been resolved.
Regarding FSR, Mr Staunton presses cl. 29(4) SEPP ARH which states that a consent authority may consent to development to which the Division applies whether or not it complies with the standards set out in subclauses 29(1) and (2); in this case, the contested FSR of 0.5:1. Mr Staunton contends that the only form of residential development in the R2 zone with a prescribed FSR is dual occupancy development, which is a special form of residential development with specific objectives and standards; it is not the principal form of residential development which is dwelling houses. In addition, as the FSR for dual occupancy is prescribed in the DCP, which is not an environmental planning instrument or a regulation, it is not a development standard as defined by s 4 EPA Act. Mr Staunton submits that s 79C(3A) of the EPA Act requires a consent authority to be flexible in applying the provisions of a DCP and consider reasonable alternative solutions that achieve the aims or objectives of the relevant control/ standard.
Concerning Mr Seton's reliance on Salanitro, Mr Staunton argues that the application of the relevant planning controls which apply to dwelling houses in the R2 zone within the Hills Shire results in contemporary residential development which typically exceeds an FSR of 0.5:1 and produces a different form of 'low density' or suburban residential development. Additionally, he maintains that two experienced urban designers have refined the building to one which is of a high standard and compatible with its surroundings. Mr Staunton notes that the circumstances of the Salanitro matter were significantly different to the circumstances of this matter. Mr Staunton highlights Mr Patag's evidence that a dwelling on the site need only have a 900mm side setback; this proposal has 3m setbacks. He also notes Mr Patag's agreement that the proposal has an FSR which would not be dissimilar to any likely future permissible residential development on the site. By way of example, Mr Staunton notes the large dwelling on the adjoining property to the west.
In further addressing arguments raised by Mr Seton in cross-examination concerning the number of car spaces beyond the number required by the SEPP and their contribution to the excessive FSR, Mr Staunton contends that subcl. 30(1)(h) SEPP ARH which prescribes parking requirements is a 'cannot refuse' development standard. He argues that the additional floor space in the basement does not contribute to bulk or scale and is not habitable; additionally, it addresses objectors' concerns about on-street parking by providing double the parking spaces required by the SEPP.
Mr Staunton contends that that the key contention is the character test in cl. 30A of SEPP ARH. He maintains that 'compatibility' does not mean 'sameness' and presses the evidence of Mr Smith, Mr Morrish and Ms Brown that the proposal is compatible with the character of the local area, including the likely future character. Mr Staunton also argues that the proposal meets the aims of both THLEP and SEPP ARH.
Mr Staunton cites the Planning Principal on compatibility with context published in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where at [22] the former Senior Commissioner Roseth considers that the most apposite meaning of 'compatible' in an urban design context is 'capable of existing together in harmony' and at [24] to [26]: 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, architectural style and materials are also contributors to character.
The applicant's position is that: the experts are satisfied that the proposal is capable of existing in harmony with its surroundings; the physical impacts have been resolved - for example, there is no unreasonable overlooking; the open character of the area is maintained; and the development complies with the controls for building height, setbacks and landscaping. It is not in a conservation area so no particular architectural style is critical.
On the issue of density, Mr Staunton notes Mr Patag's agreement that there is a shortage of affordable rental housing in the Hills Shire. Mr Staunton states that the sizes of the rooms comply with the minimum and maximum sizes specified in SEPP ARH and that if the minimum room sizes were strictly applied, an additional two rooms could be accommodated within the proposed building footprint; however, rooms larger than the minimum requirement have been designed in order to provide an appropriate level of amenity for future residents. He asserts that no evidence has been adduced as to the nature of the impacts arising from 19 or 38 people and, in any event, there is no guarantee that each room will be occupied by two people. In his written submissions, Mr Staunton considers that both the draft Showground Station Precinct Plan and the council's corridor strategy indicate the area is likely to be one in transition towards higher density development.
Concerning the council's contention that the proposal is not in the public interest because of the issues in the contentions and in submissions made by objectors, Mr Staunton cites Lloyd, J in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 at [62] which in essence considers the weight to be given to public submissions. Mr Staunton submits that the fears of the objectors are unfounded and that many of their concerns have been addressed.
Mr Seton contends that there are two significant remaining issues: whether the FSR is excessive; and, whether the overall density of development is appropriate.
Concerning FSR, Mr Seton maintains that, notwithstanding subcl. 29(4) SEPP ARH, it is open for the Court to refuse the development on the basis of subcl. 29(1) as the proposal is far in excess of the FSR prescribed, by reference to council's controls, in subcl. 29(1)(a), that is, 0.5:1. He submits that the inclusion of the additional four parking spaces is a significant contributor to the exceedence; although without these spaces Mr Seton maintains that a resulting FSR of 0.72:1 is still far in excess of the FSR required to maintain the existing low density and open character of the area. Mr Seton asserts that the Salanitro case is instructive as it was in an area where there was no prescribed FSR and was 'suburban' not 'urban' in its character. He also maintains his submission that the planners have focussed on future character rather than existing character, which is specifically mentioned in the R2 zone objectives. Mr Seton drew attention to photographs, included in the joint report by Ms Brown, of relatively recently approved large dwellings, many of which are in Bella Vista, which he contends is an area with a character quite unlike the character of Kathleen Avenue and nearby surrounding streets.
Mr Seton presses council's original contention that the development application should be refused because the proposed floor space ratio remains excessive and results in a building which, in terms of bulk and scale, is out of character with the surrounding residential character and thus fails the character test in cl. 30A SEPP ARH.
In regards to density, Mr Seton contends that the proposed density is far in excess of what currently exists and far beyond the projected 39 dwellings per hectare mentioned in council's draft corridor strategy. By his calculations, the proposal equates to a density of 172 dwellings per hectare and even if two rooms were combined, the result would be 82 dwellings per hectare. Mr Seton maintains council's contention that the resulting density is too great and thus incompatible with the character of the locality, and for these reasons the development application should be refused.

Findings

For the reasons provided below, I am satisfied on the evidence before me, that the proposed development can be approved.
Section 79C(1) of the EPA Act requires the consent authority, when determining a development application, to take into consideration a number of prescribed matters. These matters relevantly include any environmental planning instrument, any development control plan, the likely impacts of the development, the suitability of the site, any submissions made, and the public interest.
Absent SEPP ARH, boarding house development is permitted with consent in the R2 zone under THLEP. As the site is within an area defined by the SEPP as "accessible" , SEPP ARH applies. This enables the application of various incentives and non-discretionary development standards aimed at facilitating the provision of affordable rental housing.
Although Mr Seton presses council's contentions that by exceeding the only nominated FSR for residential development of 0.5:1, the proposal results in a form of development which is incompatible with the character of the local area, in my view this is counter to the stated expert opinions of both urban designers, and Ms Brown. As Mr Patag agrees that the FSR is reasonable and defers to Ms Morrish's opinion on the matter of character, then by default, there is complete agreement between the experts that the further amended proposal before the Court has an acceptable bulk and scale and is compatible with the character of the local area.
I accept Mr Staunton's submissions on the applicability of the Planning Principles in both Salanitro and Project Venture. Regarding Salanitro I agree that the circumstances and details of that proposal are substantially different to the facts and circumstances of this matter. In Salanitro at [18] the former Senior Commissioner found the proposed building to be "quite alien" to the residential character of the street and colloquially described the proposed dwelling as "in-your-face two-storey". Elsewhere, the former Senior Commissioner found deficiencies with the front setback, landscaping, building design and impact on solar access to an adjoining property. In this regard, the former Senior Commissioner refers in Salanitro to Project Venture, another Planning Principle he developed, in which he considers the relationship of built form to surrounding space as the most important contributor to urban character. He states that this relationship is created by building height, setbacks, landscaping, and in special areas, architectural style.
While FSR is certainly one measure of bulk and scale and an FSR of 0.5:1 may be one facet of a suburban character, it must be considered in the context of the existing and future character of the local area in which the development is proposed and balanced against other development objectives which provide clear numerical standards. In this matter I note Mr Patag's oral evidence that by complying with council's controls for setbacks and building envelope, the proposal achieves an FSR not dissimilar to any likely future development. I also accept Ms Brown's evidence on the proposal's compliance with all other relevant controls, including height and landscaping, as well as her explanation of why an FSR in excess of 0.5:1 is generally encouraged by council's controls.
Relevantly the planning principle in Salanitro considers that a building with an FSR is excess of 0.5:1 is not necessarily inappropriate in a suburban area but requires high levels of design skills to make it compatible. I am satisfied that the original proposal for a much larger building that was refused by council, has been substantially redesigned and the suggestions of two experienced urban designers, both of whom are architects, have been implemented with the result that the building has the general appearance of a large dwelling rather than a form of multi-unit residential development.
While I agree with Mr Seton that I could use subcl. 29(1)(a) SEPP ARH to refuse the development application, I also agree with Mr Staunton that subcl. 29(4) allows a flexible approach to the granting of development consent as does s 79C(3A) EPA Act in relation to DCPs. As has been discussed elsewhere, the only prescribed FSR for any residential accommodation permitted on the land is 0.5:1 for dual occupancy development. In applying subcl. 29(4), I find that compliance with this control is unnecessary in the circumstances for the following reasons: the prescribed FSR for dual occupancy is found within a DCP and is not a development standard under THLEP as the Floor Space Ratio Map referred to in cl. 4.4(2) THLEP shows no FSR for any form of development on the site and its surrounds; this is a form of residential development with its own very specific controls in THDCP; there is no evidence of it being a common form of residential development in the local area and thus establishing a commonly applied FSR; the proposal complies with the development standard for building height in THLEP; and the proposal complies with all other controls required by SEPP ARH and THDCP. I am satisfied that the proposal meets the FSR objectives in cl. 4.4 THLEP. I am also satisfied that the parking requirements in SEPP ARH are minimum standards and, that in the circumstances, the provision of additional parking spaces in a portion of the building that does not contribute to bulk and scale addresses some of the residents' concerns about on-street parking.
As acknowledged by Mr Seton and Mr Staunton, the key issue is whether the 'character test' cl. 30A SEPP ARH is met. For the reasons given above I am satisfied that the design of the proposal, specifically the building form with its setbacks, articulation and reduced height, is compatible with the character of the local area. Additionally, the reduced width of the driveway, amended landscape plans, and redesigned pathway reduce the previous prominence of built form in the front setback.
The other feature of the local area which contributes to its character is its canopy of tall trees, principally eucalypts and their relatives. I am satisfied that the increased setbacks and the general measures recommended by Mr Paroissien, if correctly implemented, will enable the protection and longer term retention of both the Tallowwood and Angophora in the front setback and the Turpentine adjoining the eastern boundary. Directions will be made for Mr Paroissien to prepare a comprehensive Tree Protection Plan (TPP), including specifications and any other supporting documentation in accordance with AS 4970 -2009 for either approval by the Court or the council and not a private certifier. The TPP shall include, but not be limited to: type and location of tree protection measures including fencing and ground protection; timing of inspections and critical hold points to be certified by the site/project arborist - pre, during and post construction (including landscaping); and monitoring and maintenance of tree protection measures during construction. Tree protection measures are to be identified on other relevant plans such as those for demolition, construction management, bulk-earthworks and services.
Apart from satisfying the "character test" in cl. 30A SEPP ARH, I am also satisfied that the proposal achieves the objectives and development controls for streetscape and character in Part B Section 2.5 THDCP (see [31]) and thus, in my view, meets the objectives of the R2 zone by maintaining the existing low density character of the area and by providing for the housing needs of the community within a low density residential environment.
In considering the likely impacts of the development (s 79C(1)(b)) and the submissions made by the objectors (s 79C(1)(d)) I am satisfied that the side setbacks, use of highlight windows and privacy screens, minimise any potential impacts of overlooking adjoining properties. The more than compliant side setbacks do not limit the development potential of the adjoining property to the east. The uncontested geotechnical evidence is that there are no risks to adjoining properties as a consequence of the proposed excavation. Council did not raise any contentions regarding traffic and on-street parking. The undisputed evidence of Mr McLaren is that the expected volume of traffic is low and the driveway design provides good visibility for drivers exiting the site. Other planning issues raised by objectors, including tree retention, solar access, and character, have been addressed.
Overall, I am satisfied that the site is suitable for the development (s 79C(1)(c)). By achieving the objectives of the R2 zone, minimizing impacts on nearby and adjoining properties and achieving the aims of SEPP ARH, I am also satisfied that the proposal is in the public interest (s 79C(1)(e)).

Conclusions and directions

Having considered the requirements of s 79C EPA Act, the expert evidence, concerns raised by residents, and the submissions made by the parties' advocates, I am satisfied that the development application can be approved.
As discussed during the hearing, should I find the proposal acceptable, I make the following directions: 1. The applicant is to engage Mr Paroissien or another suitably qualified and experienced arborist to prepare a comprehensive Tree Protection Plan, specifications and any other supporting documentation in accordance with paragraph [82] of this judgment. 2. The parties are to agree on an appropriate condition that incorporates Direction 1 into the conditions of consent and to forward an agreed version of the conditions of consent, in both hard and soft format, to the Court by 8 July 2016.
Once received and checked, final orders will be made in chambers. The orders will include leave to rely on amended plans and an order for costs pursuant to s 97B EPA Act.

Conclusions and orders

I am satisfied that the directions made on 17 June have been complied with and the agreed conditions of consent appropriately address the matters raised in the judgment and the development application can be approved.
The Orders of the Court are: 1. The applicant is granted leave to rely upon amended plans identified in Condition 1 in the Conditions of Consent attached to this judgment and orders. 2. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent's costs that are thrown away as agreed or assessed within 21 days of the date of these Orders. 3. The Appeal is upheld. 4. Development Application 561/2015/HA for the construction of a boarding house and associated works at 36 Kathleen Avenue, Castle Hill is approved subject to the Conditions of Consent attached to this judgment. 5. The exhibits except B, E and 3 are returned.

Judy Fakes Commissioner of the Court 159472.16 Conditions of consent (1.89 MB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2016

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