Findings
41The SEPP provides the opportunity to provide a range of different affordable housing forms and if there is satisfaction with a range of standards then these standards cannot be used as a reason to refuse the application. In this case, the standards identified in cl 29 and cl 30 were satisfied with the exception of the standard in cl 29(1)(a) relating to FSR. The relevant FSR standard is 0.6:1 and comes from the FSR requirement in cl 40 of LEP 2001 for multi-unit housing, dual occupancy and terrace housing developments. Both proposed developments have an FSR of 0.74:1. The ability to rely on FSR as a reason to not refuse the application is now unavailable however cl 29(4) provides that even though there is an exceedance of the 0.6:1 FSR, it is not necessarily a barrier to the approval of the applications.
42This raises the question of how the exceedance of the 0.6:1 FSR standard should be assessed. While the SEPP provides greater flexibility in the provision of a range of affordable rental housing, the flexibility is not unfettered. By providing that boarding houses cannot be refused where there is an FSR up to 0.6:1, there is a clear intention in the SEPP to maintain a form and character consistent with that permitted for residential development. In this case, multi-unit housing, dual occupancy and terrace housing developments. In my view, any exceedance of the FSR standard must be assessed against the objectives of the 2B Zone (in much the same way as an exceedance of a development standard can be tested through an objection under State Environmental Planning Policy No. 1 - Development Standards ) to determine whether the additional FSR can be supported based on the particular circumstances and characteristics of the proposed development.
43In this case, the objectives provide that the developments should enhance the amenity and characteristics of the established residential area (objective (a)) , not compromise the amenity of the surrounding residential areas (objective (b)) and be in character with the surrounding built environment (objective (c)).
44In considering these objectives against the expert evidence, I agree with the conclusions of Mr McDonald and Ms Morrish. On the matter of character, there is little doubt that there is a range of land uses in the vicinity of site although I am not convinced that any assessment should include parts of Victoria Road that extend well beyond the sites, as suggested by Ms Morrish. The southern section of Victoria Road between Macarthur Street and Betts Street, contains a service station, a villa development, a public recreation area, two heritage items, including approval for five townhouses on one heritage site, single storey inter-war dwellings and a three-level residential flat building.
45In my view, the character anticipated by the 2B Zone is predominantly residential in nature, but of different forms and at the same time providing for other activities to be carried out from a residential property providing that these activities do not affect the amenity of the neighbourhood. Any assessment of character should not include the service station and residential flat building, as these are forms of development not permissible in the 2B Zone. While they exist, they should not be used as any benchmark or basis for the assessment of the character of the area.
46The objectives specifically address the existing character ( established residential area (objective (a) and character with the surrounding built environment (objective (c)) however some consideration must also be given to the desired future character that includes other forms of residential development permissible with consent in the 2B Zone. These include dwelling houses and higher density development such as multi-unit housing, dual occupancy and terrace housing. If the proposed developments are compared to the forms of residential development anticipated by the councils planning controls in the 2B Zone then I have little trouble in concluding that the proposed developments will be inconsistent with objectives (a) and (c) because of the additional FSR provided above that specified in LEP 2001 and the resulting form of development. The provision of the amount of floor area on the sites has unacceptable consequences on the form of the proposed development when compared to the development anticipated by LEP 2001 and the DCP, even accepting that there is no obligation to comply with the DCP requirements for side and rear setbacks and minimum lot frontage. The proposed developments will be seen as two long and narrow buildings of a density greater than multi-unit housing, dual occupancy and terrace housing. The form and character will be clearly inconsistent with that anticipated by LEP 2001 and the DCP.
47The desire to provide the FSR for each of the buildings also results in a design that is, in my view, sub-standard. The need to provide access to the upper level rooms via an open stairway at the rear and an open corridor along the length of the building is a poor design feature of the development clearly driven by the need to provide the proposed floor area.
48I agree with Ms Morrish that inadequate setbacks effectively deny any opportunity for useful and effective screen planting although there must be some doubt as to whether landscaping is an appropriate means of addressing a substandard and inadequate design, based on the form and character anticipated by the requirements of the DCP.
49Objective (b) provides that the development not compromise the amenity of the surrounding residential areas. A number of the amendments suggested by Mr Kennan, such as the provision of privacy screens to some windows, the removal of some balconies and the provision of screens along the open corridor on the first floor overcomes some overlooking concerns and improves the amenity for some parts of the proposed development, although I agree with Mr McDonald that in some cases, the consequent effect is to reduce the amenity of the proposed rooms.
50I do not, however accept that the overlooking issue has been adequately addressed from the rear stair that provides access to the first floor levels of each building and the adjoining residential flat buildings to the rear of each site. The adjoining residential flat buildings have a relatively small setback to the rear property boundary of around 2.5 m to the building and around 1.5 m to the edge of the balcony. The stair is setback around 4 m from the rear boundary and the access stairs will provide a direct view into the first floor units of the adjoining residential flat building. I do not accept that the proposed landscaping is an adequate means of dealing with this unacceptable relationship.
51While the visual privacy issues associated with the first floor open corridor are adequately addressed through the provision of screens, I do not accept that the acoustic amenity impacts can be adequately addressed through the proposed design. While a recreation room is provided within each building and will likely be used for socialising between tenants, it is also likely that tenants of the buildings will use the open corridor for more random or informal interaction. The inability to restrict noise from the first floor open corridor is a serious and an inadequate aspect of the design and could potentially impact on the amenity of the adjoining residential flat buildings at the rear of the sites.
52For these reasons, I am satisfied that the proposed development is inconsistent with objective (b) in that, the developments will compromise the amenity of the surrounding residential areas.