COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). It is against the refusal of Development Application DA2018/2019 (the application) by Northern Beaches Council (the Council) of a boarding house at 16 Gladys Avenue, Frenchs Forest (the site).
[2]
Background
As lodged in December 2018, the application proposed a 3-4 storey development with 81 rooms, a manager's residence and a basement car park containing 21 parking spaces, 17 motorcycle spaces, and 17 bicycle spaces. Four canopy trees were retained within the front setback, including 2 native trees exceeding 16m in height with a 12m canopy spread.
Although classified as a 'boarding house', the development was described in the application plans as key worker housing associated with the Northern Beaches Hospital which is within 200m of the site.
The application was notified to nearby residents, with 117 submissions lodged in response. The majority objected to the development citing: issues associated with the character of the area; traffic and parking impacts; overdevelopment given the size and scale; and impacts on property values and the amenity of adjoining properties. Many residents raised concerns with the impact the hospital's opening has had on traffic and parking in Gladys Avenue and the form of associated development now proposed (and approved) in their street.
On 17 December 2019, Leave was granted by the Court for the applicant to rely on amended plans in response to the contentions raised by the Council. The amended plans reduced the scale of the development to 2 storeys by removing an entire level and a rooftop terrace. This reduced the number of boarding rooms from 81 to 54 (and a manager's dwelling) with the basement containing additional parking spaces (28 in total), 9 motorcycle spaces, and 11 bicycle spaces. The development comprised 6 building elements spread across the site in pairs separated by communal open space, landscaping or courtyards. The amount of landscaping was also increased, the materials of the driveway and pedestrian path changed, rear setback increased and a compliant minimum 6.5m front setback achieved.
The amended plans were re-notified to residents, with 75 submissions lodged. The majority objected to the amended plans for similar reasons that the lodged application was opposed.
However, 20 of the 75 submissions supported the amended plans. Reasons given were that it provided affordable accommodation close to the hospital, local shops and public transport where such accommodation was currently limited, particularly for hospital workers, and young people and the elderly who wanted to remain in the area. There was also support for the amended design in terms of minimising impacts to neighbours, being compliant with the controls, and reflecting the character of the street and local area.
Following conferral of experts, the Court granted the applicant Leave to rely on further amended plans arising from that conferral on November 6, 2020. The amendments were to the built form, materials, and landscaping. Changes included a more contemporary built form with a flat roof, framing elements and reduced scale of the building elements with additional planters at the upper level. The amended plans were prepared with input and recommendations from the expert urban designers in the proceedings. These plans, including amended architectural, landscape and engineering plans, comprised the amended application the subject of the proceedings (Exhibit A).
In response to the amended application, the Council filed an amended Statement of Facts and Contentions (SFC), tendered as Exhibit 2.
The hearing commenced with a site view consistent with the approach required by the Court's COVID-19 Pandemic Arrangements Policy. Accordingly, there were limited participants at the site view. The hearing then proceeded remotely using Microsoft Teams software. It commenced by hearing from four objectors elaborating on the concerns raised in their written submissions, including new submissions (found in Exhibit 1) lodged in response to the amended application.
At the site view, the Court inspected the site and viewed adjoining properties as well as properties the subject of recent Court approvals for boarding houses in the vicinity, being at 6 Gladys Avenue and 130 Frenchs Forest Road. The site of a Council approved aged care facility at 8 Gladys Avenue was also noted as was the high level of on-street parking in Gladys Avenue.
The view demonstrated the proximity of the existing dwelling on the site to the 4 adjacent dwelling houses, and the location and outlook of those adjoining dwellings relative to the site. This included the extensive setback of the existing dwelling on the site to the rear boundary with 16A and 16B Gladys Avenue, the limited landscaping within that rear setback area, and the proximity of the existing dwelling to the side boundaries with 14 and 18 Gladys Avenue. The dwellings on 14 and 18 Gladys Avenue are separated from the site by rights-of-way, or paved driveways, of 4.57m in width which provide access to 16A and 16B Gladys Avenue and extend the full length of the site's side boundaries.
On 3 December 2020, the Court approved a boarding house at 6 Gladys Avenue: Haynes v Northern Beaches Council [2020] NSWLEC 1600 (Haynes). In January 2019, the Court had also approved a boarding house at 130 Frenchs Forest Road, within 200m of the site, which has since been built: ACN 603 361 940 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1012.
In response to the amended application including supporting documents, the Council contended that there were essentially 3 issues to be considered in the appeal:
1. Compatibility with the character of the local area;
2. Impact on adjoining properties; and
3. The public interest.
Four expert Joint Reports were filed in the proceedings based on the amended application. These were from urban designers (Exhibit 3), landscape architects (Exhibit 4), traffic engineers (Exhibit 5), and town planners (Exhibit 6).
The urban design, traffic and landscape experts all agreed in their Joint Reports that the contentions had been resolved by the amended application. However, the town planning experts (the planners) disagreed that this was the case.
Given all experts, other than the planners, agreed that the contentions had been resolved, the Court only heard oral evidence from the planners; Mr Milliken for the Council and Mr McNamara for the applicant.
[3]
The site
The site consists of a large single allotment located on the northern side of Gladys Avenue. It is irregular in shape with a frontage of 11.95m to Gladys Avenue, a depth of 59.74m, and an area of 2411m2.
The site currently contains a 1-2 storey dwelling house which presents to Gladys Avenue as single storey with the higher elements at the rear, including an elevated deck. A detached garage adjoins to the side. The site falls approximately 9m from the street frontage to the rear boundary.
[4]
Relevant planning controls
The requirements of s 4.15(1) of the EPA Act below are relevant for the Court's consideration, which must be satisfied for the grant of consent:
4.15 Evaluation (cf previous s 79C)
(1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -
(a) the provisions of -
(i) any environmental planning instrument, and
(ii) -, and
(iii) any development control plan, and
(iiia) …,
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
The site is located within the R2 Low Density Residential zone (the R2 zone), as identified in the Warringah Local Environmental Plan 2011 (the LEP). The proposed use is permissible with consent in this zone.
The R2 zone objectives established at cl 2.3 of the LEP are as follows:
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
The parties agreed that the other relevant provisions of the LEP are satisfied by the proposed development in the amended application, including relevant development standards.
As the proposed development is a boarding house, the provisions as set out in State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) are relevant for the Court's consideration, specifically cll 29, 30 and 30A.
Clause 29 of the ARH SEPP provides standards that cannot be used to refuse consent. All of these standards were agreed to be met.
This includes cl 29(1) which requires that consent cannot be refused on the ground of density or scale if the density and scale of the buildings specified in the ARH SEPP are met.
It also includes cl 29(2) which requires that, relevantly for the appeal, consent cannot be refused on the grounds of; height, if the maximum height in the LEP is not exceeded; landscaped area, if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located; or parking, if at least 0.5 parking spaces are provided for each boarding room.
At cl 30, the ARH SEPP provides standards for boarding houses which are determinative, whereby the Court (in an appeal) must be satisfied in order to grant consent to the application. It was agreed that all standards in this clause were met, including in the amount of bicycle and motorcycle parking provided.
The requirement of cl 30A of the ARH SEPP was in contention, being:
30A Character of local area
A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
The parties agreed that the ARH SEPP was amended subsequent to the lodgement of the application to include a new provision, cl 30AA, which limits the number of rooms permitted in a boarding house within an R2 zone to 12. They agreed that cl 30AA is not determinative based on the date the application was lodged with the Council given the savings provision in the ARH SEPP at cl 54C. The weight to be applied to this new amendment in assessment of the application, however, was a contention.
Clause 54C relevantly provides:
54C Savings and transitional provisions - 2019 amendment
(1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement.
(2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced.
In considering the application, the controls of the Warringah Development Control Plan 2011 (the DCP) are also relevant, and specifically, in terms of the contentions, the provisions relating to landscaping, setbacks, bulk, solar access, and privacy.
There is also a Structure Plan for the surrounding precinct. This was produced by the New South Wales Department of Planning, Industry and Environment and is titled the Northern Beaches Hospital Precinct Structure Plan (the Precinct Structure Plan) which was referenced by the planners. This is a strategic planning document which sets the vision for the precinct having regard to the opening of the hospital in 2017.
[5]
Objector representations
The first objector to address the Court was Ms Maurer from 18 Gladys Avenue who also spoke on behalf of the residents of 18A, 20, 20A and 20B Gladys Avenue. She indicated that her family had lived in the property for 30 years. One of her children has a serious illness. This was significantly impacting the family who would be forced to leave if the development was approved given the impacts on her child from dust associated with construction. Ms Maurer also raised concerns with the loss of trees, the transient nature of future residents, the bulk, scale and density of the development, and the privacy impacts on her family. In a separate written submission, the owner of 20, 20A and 20B Gladys Avenue raised a particular concern with the lack of planning for the northern side of Gladys Avenue which recognises the redevelopment in the area and offers an ability for owners to economically sell or redevelop.
Ms Mitchell from 16A Gladys Avenue spoke on behalf of herself and her neighbour at No. 16B. She has made numerous detailed written submissions. Her concern was that the development was not in the public interest as there would be 3 boarding houses within 150m if the application was approved causing unreasonable amenity impacts for residents of the street. She stated that already Gladys Avenue cannot accommodate the cars and traffic it now has, and argued that the density was too high. Stormwater and flooding were also of concern as was the lack of deep soil landscaping adjoining the rear boundary. The outlook from, and overlooking of, the rear of her property, and her neighbour's property, was of particular concern, given what was proposed relative to what exists today, and the elevated nature of the site.
The Court also heard from Mr Lacey speaking on behalf of his daughter who lives at 22 Gladys Avenue. The family had built a duplex there which had only been completed in 2017 and the property was valued in the order of $3m. The duplex had to be designed in a specific manner and many others in the street also "had to go through hoops" to get approvals for their dwellings.
He argued that Gladys Avenue is a tree lined street with family homes in a landscaped setting. What is proposed does not reflect that character. A specific concern was with noise, given his daughter was a nurse working shifts, but there would also be other amenity impacts. There had also been a significant increase in traffic in the street, and the proposed development will add to this as well as impact on sewer and drainage infrastructure. Further, the proposed boarding house would devalue surrounding properties where there had been significant investment in the dwellings they contain.
Finally, Mr Blewitt spoke on behalf of the owners of 10, 10A and 10B Gladys Avenue. His main concerns were with traffic, safety, and parking. Since the hospital had opened, there has been 24 hour traffic and nowhere to park in the street. The Traffic Impact Analysis was old and did not reflect the significant increase in traffic in Gladys Avenue. Nor did it consider pedestrian safety or reflect the impact of other approved developments which cumulatively will have a significant impact in the street.
Further, what was proposed was out of character with the area and would have amenity impacts for neighbours. Finally, he argued, redevelopment should not be proceeding whilst the planning for future development in the area was still being finalised.
[6]
Is the proposed development compatible with the character of the local area?
The Council contended that the proposed boarding house, even as amended, was not compatible with the character of the local area having regard to the requirements to consider this character at cl 30A of the ARH SEPP.
Five experts agreed that the design of the development in the amended application was compatible with both the built form character and the landscaped character of the local area; being the expert opinion of the urban designers and landscape architects for both parties and the applicant's town planner. Mr Milliken disagreed with this conclusion.
The parties did agree that the local area comprises the visual catchment of the site including both sides of Gladys Avenue for its full length. Gladys Avenue is an L-shaped cul-de-sac with its entry comprising a signalised intersection with Frenchs Forest Road; that intersection also providing access to the rear entrance of the hospital and associated hospital car parks.
The planners agreed that the character of the local area is demonstrated in part by the area's established character, and in part by its desired future character.
The planners also agreed that there is no prescribed floor space ratio, height in storeys or site coverage controls to restrict the bulk and scale of development, including dwelling houses and other permitted uses in the R2 zone. However, they acknowledged that there are a range of development standards and controls within the LEP and the DCP that ensure a resultant development is consistent with the zone objectives.
In this regard, it was noted that the proposed development complies with the 8.5m maximum building height for the site in the LEP, as well as the wall height controls, envelope and setback controls in the DCP. This includes compliance with the minimum 6.5m front, and 6m minimum rear, setback controls.
However, the planners accepted that a development could be fully compliant with numerical controls and still not be compatible with the character of the local area.
They referenced the planning principles in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) at [22] to [26] as providing guidance in determining the compatibility of a development with the character of a local area:
"22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
23 …
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…"
As was the case in Haynes, it was agreed by the relevant experts that the character of the local area is generally and historically one of low density residential development, consistent with the R2 zone, with built form predominantly comprising 1-2 storey dwellings with secondary structures on large lots, deep landscaped areas in the front and rear setbacks, and a diverse subdivision pattern, with some larger lots having been subdivided with long driveway access to residential dwellings at the rear.
This is the case with the two dwellings at the rear of the site, being 16A and 16B Gladys Avenue which are accessed by driveways (rights-of-way) which adjoin, and extend the length of, the western and eastern side boundaries of the site. As indicated, these driveways therefore separate the site from the dwellings adjoining these boundaries, being 14 and 18 Gladys Avenue.
The planners agreed that the proposed development will be collectively larger than any surrounding development on a single land parcel. The development is also clearly different from the development on adjoining sites, being predominantly 1-2 storey dwelling houses.
However, it was also agreed that the local area is responding to the housing needs of the new hospital which includes boarding houses and seniors living. In this regard, whilst the recent changes to the ARH SEPP restrict the number of boarding rooms to 12 in future boarding house developments in the R2 zone, the site is less than 100m east of 6 Gladys Avenue, recently approved (by the Court) for a 31 room boarding house, and is even closer to an aged care facility also recently approved (by the Council) at 8 Gladys Avenue. A 17 room boarding house also approved by the Court has also been built at 130 Frenchs Forest Road, some 200m from the site.
The urban designers also noted that that "the advent of the Northern Beaches Hospital is driving change in the area" (Exhibit 3, p2) with the area south of Gladys Avenue earmarked for development up to 5 storeys.
Further, there are a range of additional land uses permitted with consent in the R2 zone, including child care facilities, community facilities, educational establishments, group homes, hospitals, medical centres, places of public worship, respite day care centres, seniors housing and veterinary hospitals.
In terms of the emerging and future character of the local area, the following is agreed in the planner's Joint Report (Exhibit 6, p3):
"Since 2010, Frenchs Forest has been earmarked as an area for future growth by the State Government. This has been supported by significant infrastructure investment. The new Northern Beaches Hospital is approximately 200 metres from the site, and has been accompanied by significant road upgrades.
In addition to this investment, the State Government has recognised the importance of Frenchs Forest in their strategic plans and policies. In 2010, Frenchs Forest was identified as a Potential Specialised Centre, and has subsequently been identified as a Strategic Centre for the Northern Beaches (North District Plan).
The Northern Beaches Hospital Precinct Structure Plan provides the strategic land use planning framework for Frenchs Forest over the next 20 years. The Structure Plan sets a vision for Frenchs Forest as it transitions into a Strategic Centre.
More specifically, this will result in an increased density of development within and surrounding the town centre adjacent the Northern Beaches Hospital. Over the next 20 years, the Structure Plan proposes the phased delivery of approximately 5,360 dwellings, and earmarks the opposite side of Gladys Avenue for buildings up to 27.5 metres in height with a potential maximum floorspace of 2.2:1 (sic).
The Northern Beaches Local Strategic Planning Statement was adopted by Council on 26 March 2020, and recognises that Frenchs Forest is undergoing a rapid transformation to a health and education precinct with a vibrant town centre. It revises Council's population projections, but envisages 4,360 dwellings within the Frenchs Forest strategic centre of the 6,400 new dwellings envisaged for the LGA by 2040.
The land directly across Gladys Avenue is identified in Phase One of the redevelopment, and is to comprise 2,000 new dwellings in the short to medium term".
However, it was also agreed that the planning controls required to implement the strategic planning documents referenced were neither imminent nor certain, and that the Precinct Structure Plan did not have any statutory weight.
They further agreed that the Gladys Street frontage width is 11.95m. The proposed driveway and pedestrian entry path take up 6.699m of this frontage. This leaves 5.251m (or 43.94% of the frontage) for landscaping. The area of the front yard between the street and the minimum required 6.5m setback line is around 97.1m2. Hard surfaces take up some 48.7% (or 47.3m2) of this area.
Mr McNamara noted that the development will be a maximum of 2 storeys and satisfied all of the development standards and controls prescribed by the Council, including having a maximum height compliant with, and in some locations more than 1m below, the maximum permissible height of 8.5m.
He argued that this proposed height is consistent with the established character of Gladys Avenue, whilst vertical and horizontal planters minimise the bulk, including planters at the second storey fronting the street.
Additionally, the building mass is well modulated, and separated by pavilions stepping down the slope of the site to the rear. Changes in plane with inverted corners of the northern elements have the effect of reducing the impact of the north-facing rooms and the length of the side walls.
He argued that development also meets the R2 zoning objectives, including providing for the housing needs of the community in a low density residential environment.
He noted that the application included a Context Plan (Exhibit A, Drawing DA-005) in part to demonstrate that, although the type of development is different to adjoining dwellings, the footprints of the building's elements were compatible with their surroundings, which were not yet developed to their full potential.
Mr McNamara argued that the increase in demand for residential accommodation in close proximity to the hospital (and town centre) will see many large landholdings further subdivided and developed, noting the minimum lot size for subdivision in the LEP is 600m2. The Context Plan illustrated similar footprints and landscaping treatment for development in the locality, albeit these buildings were substantial dwelling houses.
His evidence was that the amended design respected surrounding development, being limited to 2 storeys and with varied setbacks and modulation and pavilions used to break down the massing. This has the effect of replicating the established character of the locality. Changes in building materials also reinforce the established character and a monotonous building form or typology is avoided. Recognising that landscaping is also an important contributor to urban character, significant landscaping at the site's periphery is proposed, much in deep soil zones. In combination with the large separation to adjoining dwellings, 82 new trees are proposed across the site, most of which comprise large native evergreen canopy trees and palms, further reinforcing the existing character of the locality, and screening views of the building from adjacent properties and the public domain.
Mr McNamara accepted that uses in the front setback varied from other development in the street given a double width driveway is required. However, he argued that such access would be required for a child care centre, a place of worship, seniors living, or a medical centre, all of which are permissible in the R2 zone. Despite this, he considered the development's appearance would be in harmony with the buildings around it and the character of the street.
In this regard, the bulk of the building will be setback further from the street than the required minimum 6.5m, with the driveway and pedestrian path the only built form elements within the front setback area. Large format granite paving with inlaid synthetic turf for the driveway and a suspended timber walkway comprising the path will reduce their impact. A generous setback is also provided to the eastern boundary. This 'pocket' has a depth of some 11-13m from Gladys Avenue, and will contain mass planting of trees, shrubs and groundcovers to supplement the landscaping, in scale with the intended development as visible from the public domain.
He also stated that there are other examples in Gladys Avenue where hard stand elements beyond a single width driveway occupy the front setback. Photos to demonstrate this were included in the Joint Report (Exhibit 6). Further, the seniors living development at 8 Gladys Avenue had recently been approved by the Council despite having a combined driveway and pedestrian access, garbage storage area and courtyard fencing within the front setback.
Collectively, he argued, the cantilevered built form, large setback to the eastern boundary, retained canopy trees, extensive additional landscaping, absence of front fencing, and building design will ensure that the proposed development's appearance is in harmony with the buildings around it and the character of the street. Whilst the building typology does not seek to mimic the form of adjoining houses, it ensures the differing built forms can exist together in harmony.
The urban designers also agreed that the modified design in the amended application makes it compatible with the character of the area, by reducing the overall bulk and scale, in response to the predominant character of low density housing of 1-2 storeys in a landscaped setting. They state (Exhibit 3, p3):
"The typological difference between the surrounding houses and the boarding house is mitigated by the architectural expression which does not seek to imitate the house appearance, rather it expresses the type while adopting massing and materials which reflect the context".
The landscape architects also agreed that the proposed planting "has the capacity to effectively mitigate and screen the height and bulk of the development" (Exhibit 4, p3). Further, the spacing and density of the planting would be sufficient to break up the built form. They also noted that retaining the 4 front canopy trees would result in a tree canopy compatible with the streetscape, and that the proposed driveway and footpath treatments comprise materials designed to soften their visual impact. Finally, the building angle of repose relative to Gladys Avenue would result in a front setback area almost twice the size of the area that would result from a standard 6.5m setback.
Mr McNamara also argued that extensive landscaping will assist with screening views of the building from adjacent properties, with deep soil planting proposed at each boundary. A green wall is further provided at lower ground level to integrate the building into the landscape and diminish its visual bulk. Pipes and drainage infrastructure have also been removed from the side setback areas at the rear of the site in order to maximise deep soil landscaping.
Mr McNamara also noted that s 4.15(3A)(a) of the EPA Act states that, if a DCP contains provisions and those provisions set standards with respect to an aspect of the development and the development application complies with those standards, the consent authority is not to require more onerous standards with respect to that aspect of the development. In his view, the skilful design and integrated landscaping strategy satisfy both the objectives and the provisions of the DCP, and no more onerous requirements could be imposed.
However, Mr Milliken considered that the design of the development, even as amended, was incompatible with the character of the local area. His main concerns were the size and massing of the development and the articulation of the side elevations of the northern (or rear) elements of the building.
While accepting that the proposed development has building elements giving the impression of pavilions when viewed from above (such as in the Context Plan), Mr Milliken argued that the location and off-setting of these elements meant that there were virtually no places a person could stand outside the site and be able to appreciate the size of these breaks. This results in the development appearing as one large mass from almost all potential viewing positions on surrounding properties, with the length of the building also discernible from the street. For the average passer-by, this will be visually jarring.
Further, such a single large mass of development is not compatible with the established development in the local area which consists entirely of much smaller detached single dwellings. The vertical and horizontal articulation was insufficient to minimise the bulk of the building elements.
In this regard, the building is clearly not a dwelling when viewed from the street, with a basement driveway entrance and a driveway wider than most intruding elements in the local area, a lobby pedestrian entrance and a 2 storey built form that will be longer and larger than surrounding dwellings.
Whilst accepting that the large format granite paving with inlaid synthetic turf is better than a plain concrete driveway, Mr Milliken argued that this will not serve the purpose of actual landscaped open space and is of minimal benefit in offsetting the impacts of the lack of landscaping within this part of the front setback area. Specifically, having only 43.94% of the frontage and 51.3% of the front yard behind the 6.5m setback line as landscaped open space will result in the driveway and path (i.e. the hard surfaces) dominating the front setback area. The pocket of vegetation in the front yard containing a few large trees will be obviously small compared to the size of the site and of the building.
He argued that this front yard outcome is not compatible with the vast majority of other properties in the street which have single driveways and larger landscaped front yards. Whilst accepting that there are examples of properties with less, these are the exception to the majority. The photos referenced by Mr McNamara were examples of what should not be repeated.
Mr Milliken noted that a corner of the building is setback only the minimum 6.5m from the street. He argued this reduced the perception of an open front yard, with the landscaped area appearing token in comparison. Further, the approved aged care facility at 8 Gladys Avenue has a single width driveway and a greater width of landscaping. It was also approved under different legislation and landscape requirements, and the main building is setback a minimum of 8.88m, more than 2m further than the larger building proposed for 16 Gladys Avenue.
In his view, the need for 82 new trees and the mass planting of shrubs and groundcovers to limit the impact of the size and bulk of the development indicates that the development is too large, and the design is not compatible with detached style dwellings. Further, landscaping requires good management and good luck to survive. It should not be used on its own to reduce impacts. Rather, good and appropriate design needs to come first to achieve this aim.
Mr Milliken further argued that the proposed development should be considered "high density" due to the number of rooms (54 and a manager's room) and potential residents (up to 110). He calculated that, if the site was subdivided into 4 lots, and each new lot contained a dwelling, the density would be only 16-20 people. If each lot contained a 12 room boarding house, there would only be 48 rooms not the 54 rooms proposed in the amended application. The proposed density is therefore in stark contrast to the current density in the local area.
In closing submissions, Dr Berveling, counsel for the applicant, submitted that cl 30A of the ARH SEPP is not a reason for refusal.
In this regard, the urban designers were the most suitably qualified experts to provide evidence in relation to local character. He noted the experience of the Council's urban designer, who agreed that the amended development was compatible with the local character and was a member of the Frenchs Forest New Town Centre Precinct Master Plan Architecture and Urban Design Review Panel. On this basis, great weight should be attributed to the findings of compatibility by the urban designers from an urban design perspective.
He further submitted that the landscape architects were also the most qualified experts on the landscaped character of the local area and they agreed that the amended development was compatible with that character. Also, that the requirements of cl 29(2)(b) of the ARH SEPP were met. This requires that a consent authority must not refuse consent on the basis of landscaped area if the landscape treatment of the front setback area is compatible with the streetscape.
Dr Berveling also submitted that, in oral evidence, Mr Milliken's view was that the northern elements of the building should be setback at least 4m from the eastern and western boundaries although he did not suggest a different setback for upper levels. Such setbacks would result in the loss of 8 boarding rooms. This suggested increased setback was at odds with the agreement by the planners in their Joint Report that the building complied with all of the relevant height, envelope and setback controls, and was despite the fact that the east and west elevations adjoin driveways (or rights-of-way).
In closing submissions, Mr Gough, solicitor for the Council, considered the Court should have regard to the recent amendment to the ARH SEPP, at cl 30AA, which now limits the number of boarding rooms in the R2 zone to 12. This will have an impact on the desired future character of the area.
Specifically, Mr Gough took the Court to the decision of Walsh C in Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 (Lizard Apple) in determining an application as if the amendment to the ARH SEPP "had not commenced". In Lizard Apple, consent was also sought for a boarding house in an R2 zone with more than 12 rooms reliant on cl 54(C).
The Council's position in Lizard Apple at [22] was, in essence, not that the amendment should be applied retrospectively but that considerable weight be applied to it even if it had not yet commenced at the time of the application. When the amendment was given proper regard and weighed in with the other matters for consideration (that is, the merits concerns of Council), the application should be refused. Conversely, the applicant's submissions, (based on various authorities) was that the amending provisions should be regarded as having no effect at all.
Ultimately, the boarding house in Lizard Apple was approved based on Walsh C's determination of compliance with the ARH SEPP and the merits of that application. However, the Commissioner also considered that the Council's submissions were logical, namely that there was a need for significant weight to be given to the amendment but not determinative weight.
Mr Gough also considered weight should be given to the advent of the amendment noting it had been through public consultation and adopted, albeit not commenced, at the time of the application. This was notwithstanding the savings provision or the finding of Bish C in Haynes that little or no weight should be applied to cl 30AA in assessment of desired future character.
Dr Berveling disagreed with this submission, relying instead on the findings in alternative authorities, including Haynes, that the amendment should be given little, if any, weight.
Both parties agreed that consideration of the amendment is not determinative of the application. It is only a question of what weight it should be given.
[7]
Findings on compatibility
Based on the evidence, I am satisfied that the proposed development (as amended) is compatible with the character of the local area, this being the only contested provision in the ARH SEPP and noting that, even if I do not consider it compatible, consent is not precluded.
I make my compatibility finding for the following reasons.
As outlined in Project Venture, a development can be compatible without having the same density, scale or appearance as development in the local area.
In terms of density, the proposed boarding house relative to the site area is not a significant increase in density from what is permissible in the R2 zone. This was demonstrated by Mr Milliken's analysis which indicated that, even boarding houses limited to 12 rooms (if the site was subdivided into 4 lots, each with a boarding house), would only result in 6 boarding rooms less than the number proposed in the amended application. This is even though the application is not subject to those density restrictions. Further, there would be no certainty as to the scale or design of 4 such developments relative to the scale and design of the amended application.
Nor is the amended application at odds with boarding houses approved in the street (at 6 Gladys Avenue), or in proximity (at 130 Frenchs Forest Road), which contain more than 12 rooms on single lots significantly smaller than the site.
Accordingly, even if I accept Mr Gough's submission and give any weight to the boarding house size limits now in the ARH SEPP, in terms of impacting the future character, I find that it would make little difference to that character. That is, the existing character is already changing, and will continue to be changed, by recent approvals and developments associated with the advent of the hospital, such that limiting the size of future boarding houses will not make a significant difference to the future character of this particular R2 locality.
I also do not accept that four large 2-3 storey dwellings over the site (were it subdivided and developed commensurate with the size and scale of dwellings in the vicinity such as exist on subdivided sites like 16A and 16B Gladys Avenue), would necessarily result in less bulk or scale of development or more compatible development than is proposed. In oral evidence, Mr Milliken accepted such dwellings could also be on reduced side and rear setbacks.
Nor do I accept the inference that the number of people accommodated on a site correlates to the compatibility of a development.
Further, the development cannot be refused on the basis of density or scale given it complies with the requirements of cl 29(1) of the ARH SEPP.
In terms of appearance, the second storey element proposed is a common feature in the local area and, whilst I acknowledge that the depth of the proposed building means side elements beyond the front façade will be visible from locations in the street, viewing these elements would not of itself warrant refusal or make the built form incompatible. The alternative of larger breaks for increased separation would result in a reduced rear setback, which is currently proposed to exceed the DCP requirements in order to minimise impacts to the two dwellings at the rear.
I also accept the evidence of the urban designers that the development is adequately articulated with use of pavilions and breaks in the building to create, in essence, a number of building elements stepping down the site with the topography, reducing the bulk as viewed from adjoining properties.
I therefore have no reason to dispute the urban design evidence that the proposed building depth, with the breaks and articulation proposed, is compatible with development in the local area, as is the 2 storey built form.
I note also that the Council's own urban design expert has been involved in the strategic planning for the hospital precinct and accepts the proposed development is compatible with the existing and desired future character of the local area.
The development not only complies with the maximum permissible height in the zone of 8.5m, at some locations it is more than 1m below that height. At this height, and presenting as 2 storeys, it is commensurate with the height of more recent dwellings in the local area, including the two dwellings to the rear at 16A and 16B Gladys Avenue, noting that those two dwellings both have a 3 storey presentation to their northern elevation.
In addition to being below the permissible height, I also note that the numeric setbacks and building envelope required by the DCP are agreed to be achieved, with minimum setbacks exceeded in most instances enabling perimeter deep soil landscaping and increased separation to adjacent dwellings. In the absence of unreasonable amenity impacts to neighbours, there is no basis to require more onerous setbacks to be applied.
The amended design has also taken on board a number of the defining elements of surrounding development, including extensive landscaping and in the materials to be used.
Whilst I accept that landscaping cannot be relied on to screen the development, in addition to the extensive landscaping proposed to side and rear boundaries, the development benefits from the retention of existing substantial canopy trees in the front setback area which will further assist in providing a landscaped setting commensurate with the character of the local area.
In this regard, I accept the evidence of Mr McNamara that the Context Plan (in Exhibit A) demonstrates that the overall extent of building vis a vis landscaping proposed on the site, relative to the site area, is not overly different from that in the locality.
Further, the materials proposed for the driveway and pedestrian path in the front setback, along with the retention of the 4 canopy trees, assist with reducing the visual impact of necessary hard elements within the streetscape, and ensures the development will be in harmony with that in the local area.
In this regard, a boarding house with basement parking clearly results in elements and a typology that vary from those associated with a dwelling house. However, sameness is not required to achieve compatibility.
To paraphrase the conclusion of the urban designers, which I agree with, at [68], the architectural expression (of the proposed boarding house) does not seek to imitate the appearance of a dwelling house, rather it expresses the type, while adopting massing and materials which reflect the context.
It was acknowledged that the site is unusually large relative to other lots in the local area. Therefore, a larger development is a reasonable expected outcome relative to other lots, some of which have been subdivided but still contain large 2-3 storey built forms, such as exist to the rear of the site in the dwellings at 16A and 16B Gladys Avenue.
Finally, it was agreed that all of the numeric ARH SEPP, LEP and DCP controls are met. These controls shape the intended form of development in the area.
Having regard to the evolving nature of the local character, and the strategic planning undertaken for the precinct associated with the advent of the Northern Beaches Hospital, which is driving this evolution, I find what is proposed is compatible with the existing and future character of the local area. There is therefore no basis for refusal in terms of compatibility.
In making these findings, I am however, conscious of the collective impact such developments have, and will continue to have, not only on the character, but on the existing residents, of Gladys Avenue.
I make comment in terms of those impacts later, in my public interest findings, but turn now to the specific impacts on the adjoining properties.
[8]
Is the impact on adjoining properties acceptable?
The appeal site is adjoined by four properties; two of which are separated from the site by the access driveways to the other two properties at the rear.
The two rear properties, 16A and 16B Gladys Avenue, contain substantial 2-3 storey dwellings, whilst both properties adjoining the side boundaries, being 14 Gladys Avenue to the west and 18 Gladys Avenue to the east, contain older style dwellings. The dwelling at No. 14 is 1-2 storeys whilst the dwelling at No. 18 is single storey.
The concerns raised in terms of these properties were outlined in the written and oral submissions of objectors and addressed in the expert evidence of the planners and, in terms of visual impacts, the urban designers.
In addition to concerns with the impact on the character of their local area, the primary concerns of the adjoining residents related to privacy, outlook (given the bulk, scale and proximity of the proposed development), noise and overshadowing. More general concerns in terms of on-street parking, traffic and precedent, are considered later under the public interest contention.
The planners agreed that there were no unreasonable overshadowing or noise impacts to any neighbouring property.
The urban designers addressed the visual impact of the proposed building bulk on neighbours. They concluded that the amended application resolved concerns with the building mass, height, bulk and scale by reducing the height, enlarging setbacks and building separation, and 'greening' the building and its setting with elevated planters, green walls, and increased deep soil planting.
In terms of having regard to the controls in the DCP, they state (Exhibit 3, p4):
"Clause D9 requires that the side and rear setbacks be progressively increased as wall height increases. This is resolved as a consequence of the setbacks being greater than required on all levels and the building height being lower than permitted. This is further mitigated by: building modulation which reduces the scale of elements, green elements and green walls which helps to integrate the building into their landscape; absence of eaves which reduces the presence of the buildings (sic). Additionally the side boundaries face battle-axe driveways that provide access to the residences to the north, thereby effectively increasing the distance to the houses adjacent to the side boundaries".
The planners agreed that, in terms of privacy, all windows in the proposed boarding house were more than 11m from the windows of 16A Gladys Avenue and more than 21m from the windows of 16B Gladys Avenue. Further, that the side setbacks exceed the required DCP minimum of 900mm, being 2-5m, whilst the rear setback well exceeds the DCP prescribed minimum of 6m, enabling deep soil planting to side and rear boundaries.
Mr Milliken however, remained concerned that the height, orientation and number of rooms overlooking the neighbouring properties will result in unreasonable impacts. He was particularly concerned with the building elements adjoining the rear boundary, being the northern wall of the northern-most boarding rooms.
In this regard, 18 rooms will have views to 16A and 16B Gladys Avenue. He argued that this density of rooms and balconies overlooking these two properties is far above what would be reasonably expected by the residents of these dwellings. The rooms, including the ground floor rooms, will be elevated above the rear boundary fence, due to the slope of the land. This negates any screening from that fence. The rear wall of 16A Gladys Avenue contains kitchen, bathroom and bedroom windows.
Mr Milliken was also concerned that the northern elements do not step in from the side boundaries as their height increases. In his view, this results in long bulky elevations that will be highly visible and therefore have adverse outlook impacts for adjoining properties.
Whilst these elements have minimum 2m side setbacks and step down the site, this was a result of the slope of the land, not an attempt to minimise the bulk of the structures. He maintained that the length of the proposed development (overall and of each element), combined with the inadequate breaks between the building elements (their offsetting), means the neighbours to the side would not appreciate the size of these breaks. Therefore, 2m side setbacks are insufficient to reduce the bulk and scale visual impacts to an acceptable level.
In this regard, a number of rooms and balconies will overlook 14 and 18 Gladys Avenue from the rear of the proposed boarding house. Whilst privacy screens are proposed, Mr Milliken argued that such screens do not provide complete privacy protection and are not commonly used to screen the full width of the main aspect. This is required due to the rooms being orientated towards all adjoining properties, leaving the landscaping to provide the required screening.
Mr Milliken was less concerned with the impacts on 14 Gladys Avenue due to the positioning of the dwelling and private open space on that property. He was however, concerned with the impact to the existing dwelling at 18 Gladys Avenue, which is in close proximity to the eastern side boundary.
At the site view, it was noted that the second storey element of the existing dwelling on the site is situated between 1-3m from the common boundary, immediately adjacent to the dwelling on No. 18, with windows overlooking that dwelling at ground and upper floor level. Further, the dwelling on No. 18 has no windows in its western side elevation which overlook the site.
However, Mr Milliken argued that the existing dwelling on the site has substantially less length than the proposed development which has walls up to 7m high on a site that is already elevated above its neighbours.
The first objective of the DCP privacy control is to ensure that the siting and design of buildings provide a high level of visual and acoustic privacy for neighbours. Mr Milliken did not consider that the design will achieve this.
Mr McNamara argued that there are no physical impacts of the proposed development upon adjoining properties. Specifically, it is only 2 storeys, exceeds setback requirements to all neighbouring properties, has no adverse overshadowing impacts, and does not result in the loss of views. Further, there was no contention raised that the physical impacts on surrounding development would be unacceptable.
In his view, the skilful design and intended planting regime effectively mitigates any perceived adverse impacts with the height and bulk of the development, which is compliant with all numeric building and envelope controls.
In summary, the stepping down of the built form, separation of the building elements into pavilions, significant landscaping in deep soil zones at the site periphery, and the rights-of-way along each side boundary, will all minimise the perceived bulk of the development when viewed from adjoining properties.
He also argued that the orientation of boarding rooms has been carefully considered to provide for acceptable visual and acoustic privacy and amenity, with 5-8m separation between screened habitable spaces and blank walls or frosted glass windows.
He also noted that the occupants of 16A and 16B Gladys Avenue have district views and aspect to the north, which are unaffected by the proposed development.
Mr McNamara argued that the separation between the upper level boarding room windows and those at 16A and 16B Gladys Avenue would be greater than the 9m prescribed by the DCP. Additionally, planter boxes are proposed, limiting a direct outlook down and into these adjoining properties, thus achieving a high level of visual privacy for the occupants and for neighbours.
There are only 5 windows proposed on the upper level of the building facing east in the vicinity of the dwelling on 18 Gladys Avenue. These are setback 5-6m from the common boundary. Beyond this boundary is a 4.57m wide right-of-way to 16B Gladys Avenue. As a result, the dwelling on 18 Gladys Avenue is a minimum of 9.57m from the two closest balconies proposed.
Additionally, all balconies within 11m of this boundary will have 1.65m privacy screens, and there is a minimum 3.5m wide mass planted deep soil zone, containing 5 trees which can grow to a 15m height and an 8m canopy spread, as well as a number of smaller trees proposed along the boundary.
Therefore, the building separations, combined with the screening treatment and landscaping, proposed, will ensure the visual privacy of the neighbours at 18 Gladys Avenue, satisfying the objectives of the DCP.
The landscape architects also agreed that the proposed planting had the capacity to effectively mitigate and screen the height and bulk of the development with the spacing and density of the proposed planting sufficient to break up the built form, and therefore reduce adverse visual impacts.
Dr Berveling submitted that the Council's concerns were despite a minimum rear setback of 11.5m, 1.65m privacy screens on the northern edge of the terraces of the boarding rooms on the lower ground floor, and 1m deep planter boxes on the northern edge of the rooms on the upper level.
Notwithstanding these are considered to be sufficient privacy measures, the applicant also offered a condition to further amend the plans to provide perforated metal awnings affixed to the full length of the planter boxes adjoining these rooms with an upward inflation of 15°. This would avoid any overlooking of the wall of 16A Gladys Avenue but still allow light into those boarding rooms.
In terms of any privacy issues to the eastern and western properties, the elevations of the northern rooms to these boundaries have high opaque windows. Further, in addition to the 2m setback from these boundaries, there are rights-of-way along the entire boundary length.
Therefore, Dr Berveling submitted, any privacy concerns associated with the northern building elements were resolved or unsubstantiated.
[9]
Findings on impacts to neighbouring properties
Based on the amended application, and for the following reasons, I concur with the majority of the experts that the contended issues that relate to potential amenity impacts, being overlooking/privacy and outlook, both external and internal to the site, are resolved or acceptable in the circumstances.
Unlike a number of boarding house proposals that come before the Court, such as that approved and viewed at 130 Frenchs Forest Road, the proposed generous setbacks reduce the proximity of building elements to adjoining dwellings and also enable deep soil and extensive landscaping, including canopy trees, within these setbacks. This will assist with softening the bulk and scale of the building elements when viewed from adjoining properties.
The site view indicated that 16A and 16B Gladys Avenue contain substantial 2-3 storey dwellings on relatively small lots compared to the site. These dwellings have extensive and primary outlook to the north, not to the south over the site. The principal private open space areas of these properties are also their front yards, not their rear yards which adjoin the site.
The primary concern was with the rear outlook from, and proximity of the proposed built form to, 16A Gladys Avenue which has windows at ground and upper floor level in close proximity to the shared rear boundary. These windows overlook the rear of the site which is currently largely grassed, with the existing dwelling on the site well setback from the rear boundary, albeit in an elevated location.
It is not a reasonable expectation however, to maintain an outlook to an undeveloped rear yard. No. 16A has been developed with a minimal rear setback in order to maximise use of the front yard of that property for a pool and private open space which is not affected by the proposed development.
There is, therefore, minimal landscaping in the rear yard of No. 16A which could assist in providing a landscaped outlook from the rear windows of that dwelling, whilst the rear yard of No. 16B is paved to provide access to garages, with the dwelling on that property setback further from the rear boundary than No. 16A.
The proposed development is a maximum of 2 storeys, will be setback 11.5m from the common rear boundary (which is significantly more than the minimum 9m required by the DCP), and will be extensively landscaped including with canopy trees. I consider this to be sufficient to address visual impact and proximity concerns in terms of 16A and 16B Gladys Avenue. I also accept that, with these features and the privacy treatments proposed, there will be no privacy impacts to these two properties.
I do accept that the residents of these two properties will have a diminished rear outlook, and be closer to built form to the rear, relative to what exists today. As I have indicated, for No. 16A, this is partly due to the location of that dwelling close to the rear boundary to enable use of a generous front setback. The residents of both 16A and 16B Gladys Avenue will, however, maintain their existing primary elevated northern outlook to a landscaped aspect, and over their principal private open space areas in their front yards, not to the site. These areas of private open space are extensive which will assist in reducing impacts from closer development to the rear.
In summary, whilst I therefore accept that the outlook over the site from the dwellings to the rear will change, the proposed building elements are still well setback relative to the controls, and will be extensively landscaped relative to the landscaping that exists today. I also do not consider it reasonable to have to maintain a grassed rear yard on private property in order to maintain the amenity currently enjoyed from an uninterrupted outlook over that rear yard from properties to its rear, particularly when the main orientation and setback of the dwellings on those properties is not to their rear.
The applicant also offered to further enhance landscaping in the rear setback area, as well as a condition to maintain landscaping for 2 years, to further minimise the impact from the bulk and scale of the development.
Given all of these circumstances, I consider the impact to the properties at the rear to be acceptable.
In terms of the impacts to 14 and 18 Gladys Avenue, I accept the evidence of Mr McNamara and the urban designers that the stepping down of the built form in pavilion style building elements, significant deep soil landscaping at the site periphery, and the rights-of-way along each side boundary, will collectively minimise the perceived bulk of the proposed development when viewed from these properties. The privacy treatments proposed also address overlooking concerns.
No specific amenity concerns were detailed by the Council with regard to 14 Gladys Avenue and I therefore accept that the impacts to that property will be acceptable.
In terms of 18 Gladys Avenue, I noted from the site view that the dwelling on that property has no side windows overlooking the site and adjoins the 2 storey element of the existing dwelling on the site. Further, it is overlooked from windows at both levels of the existing dwelling, which was estimated to be as close as 1m to the side boundary and no further setback than 3m.
The proposed boarding house has been designed with breaks in the built form elements and landscaping adjoining the dwelling on 18 Gladys Avenue to reduce impacts to that dwelling. Despite only requiring a 900mm side setback, the walls of the front building elements which immediately adjoin the dwelling on No. 18 are also to be setback 6m from the eastern boundary, well in excess of the 2m side setback for the elements at the rear, thus providing the opportunity for substantial landscaping in the side setback area. Given the right-of-way offers a further setback of 4.57m to the dwelling at No. 18, I consider a reasonable endeavour has been made to protect the amenity of residents of that dwelling given how close it is located to its western side boundary.
I sympathise with the construction impacts on the current residents of No. 18 given their particular circumstances. However, any redevelopment of the site would have such impacts, and individual circumstances of current occupants is not a basis for making planning decisions. Conditions of consent are also proposed to minimise construction impacts.
I also accept Mr McNamara's evidence that it is not unreasonable, given the size of the property comprising No. 18 and the relatively modest dwelling currently on it, that it may be redeveloped in the future with the potential to provide greater side setbacks than currently exist as well as a northern aspect, re-oriented siting, and location further away from the boarding house.
Overall, the proposed development: is height compliant, including with maximum wall height and building envelope controls; exceeds minimum site area landscape requirements, including deep soil planting to the site boundaries; well exceeds side and rear setback controls; and has a built form further separated from the two closest dwellings by rights-of-way.
In summary, the evidence indicates that, whilst there are inevitably some impacts with any redevelopment, the impacts from the proposed development to adjoining properties will be reasonable in the circumstances in terms of noise, overshadowing and privacy. Further, that there will be no unreasonable impacts in terms of outlook. Agreed conditions and engineering drawings address the stormwater and infrastructure concerns raised by residents and these were not concerns contended by the Council. There is also no contention that the development will reduce the development potential of adjoining properties.
The impacts to the adjoining properties from the proposed development therefore do not warrant refusal.
[10]
What are the remaining public interest considerations?
The Council contended that the development would not be in the public interest, including because of the impact on residents within the locality.
Mr Milliken's evidence was that this was because the development is not compatible with the character, scale and intensity of development that the community can reasonably expect to be provided on this site and within the locality.
Notably, there had been over 200 submissions lodged in response to the notification of the original and amended applications, primarily comprising objections, albeit Dr Berveling submitted that a substantial number of the submissions were 'double ups' and a significant proportion, some 25%, were in favour of the proposed development, as amended.
Dr Berveling also submitted that the resident objections need to be balanced with the need to satisfy the demand for affordable housing in the area, in considering the public interest.
Mr Milliken's evidence was that the large area of the site was a "fundamental problem for the proposal" because it has resulted in a building that is far larger than any surrounding development, while still complying with the numerical controls. In his view, the overall size of the proposed development is in stark contrast to all existing development in the street. A much smaller single building, or several buildings that are clearly separated from each other when viewed from the neighbouring properties and the street, is all that the site is suitable for.
Further, in his view, it was very clear from public submissions that traffic and parking in the street are already significant concerns for the local residents. This proposed development will further exacerbate these problems.
However, in their Joint Report (Exhibit 5), the traffic engineers note that the proposed number of car, motorcycle and bicycle parking spaces fully comply with the ARH SEPP requirements, thus enlivening the non-refusal clause of the SEPP. Further, the estimated number of trips generated would be very low relative to existing traffic volumes in Gladys Avenue. The volumes were well within satisfactory limits as Gladys Avenue has capacity to accommodate the additional traffic without impacting performance (Exhibit 5, pp1,2).
Updated traffic analysis provided to the Court during the proceedings did not change this advice.
Mr McNamara's evidence was that the proposed development complied with all relevant development standards and controls applicable in the R2 zone and in the DCP. These controls have been developed by the Council following extensive consultation with the local community.
[11]
Findings on public interest
I cannot accept that the proposed development is not in the public interest.
Firstly, the development is consistent with the zoning and complies with the development controls within the LEP and DCP as was agreed by all experts.
Secondly, it satisfies all of the requirements for boarding houses as set out in the ARH SEPP and could not be refused on the basis of non-compliance with any of the numeric standards in that SEPP.
Specifically, it cannot be refused on the basis of density or scale, given it complies with the requirements of cl 29(1). It also meets all of the requirements of cl 29(2). In particular, the proposed development, as amended, complies with the maximum building height of 8.5m (with many building elements up to 1m below 8.5m) and was agreed by the landscape experts to meet the front setback landscape area streetscape compatibility requirements.
The on-site parking proposed also meets the parking requirements at cl 29(2)(e). For the 54 boarding rooms proposed, 27 car spaces are required, as well as one for the manager; 28 bays are provided. Therefore, parking provision cannot be a basis to refuse consent, notwithstanding the demand for on-street parking was an issue raised in many objections and evident from the site view.
In this regard, whilst individual applications may not warrant refusal based on compliance with controls and satisfactory individual amenity impacts, collectively the redevelopment in the area associated with the proximity of the hospital, and the operation of the hospital itself, impacts the parking demand and amount of local traffic. This reduces the amenity for existing residents of Gladys Avenue.
I therefore agree with the following observations by Bish C in Haynes at [46]:
"46. I also note that parking on the street was an extreme challenge, although recognise that this was not raised in contention as sufficient parking for the proposed development is provided on the site. Separate to this appeal, I postulate that metered and resident ticketed parking on the street would potentially address this issue, which was expressed as a concern of residents, and I suspect is exacerbated by parking needs associated with the new hospital."
The site is within an 'accessible area' as defined in the ARH SEPP as it is within 400m walking distance of a bus stop in Frenchs Forest Road with a regular bus service. I therefore accept that the proposed development will not lead to unmanageable transport demands in the locality as there are adequate public transport facilities available.
I am also satisfied (and there was no dispute) that the standards for boarding houses at cl 30(1) are all met and therefore these standards are not grounds for refusal.
Collectively, the compliance with the controls indicate that, rather than the large area of the site being a fundamental problem because it results in a building that is larger than any surrounding development, I find that the site size enables the proposed development to be well setback to all boundaries. This facilitates extensive landscaping, including canopy trees, and breaks between building elements, such that the proposed development goes beyond meeting the minimum compliance requirements of all applicable development standards.
The only contested provision in the ARH SEPP was whether or not I had considered the compatibility requirements of cl 30A, and I have already addressed that consideration.
In this regard however, it is in the public interest to note that the area is in transition as a result of the Northern Beaches Hospital which is the driver for that transition. That transition is likely to continue, as is recognised in the various strategic documents produced to date, and by the experts, and it will have an ongoing impact on the community surrounding it, including the existing residents in Gladys Avenue, as is already evident in terms of local traffic and on-street parking demand, and the redevelopment proposed.
Whilst the Precinct Structure Plan has no statutory standing, I note the comments of the planning experts regarding its intent. Its formulation is indicative of the need for commensurate controls to implement the strategic planning outcomes sought. Such controls must recognise and address the impacts on surrounding areas arising from the advent of the hospital since it opened in 2017, and indeed in its planning and construction in the years prior.
The absence of a such controls, which also address implementation and transitional considerations, has clearly created anxiety and uncertainty in the surrounding community, evident in the extent of objections lodged in response to the application.
The market is responding to the need for affordable housing in the vicinity of the hospital as well as associated facilities such as aged care. This is evident in recent approvals in the area in which the site is situated by both the Council and the Court. It is therefore incumbent on the Council and relevant planning authorities to expedite and finalise controls which provide greater certainty and a clear understanding of the likely outcome for both sides of Gladys Avenue.
In the absence of such certainty, there is likely to be further applications for developments that are not dwelling houses with few restrictions save only in terms of the size of boarding houses in the R2 zone now incorporated into the ARH SEPP but which was not a restriction imposed due to the advent of the hospital. The strategic planning flags significantly higher development on the opposite side of Gladys Avenue to that in which the site is located but maintains the current low scale and density on the side in which the site is located. Already and over time, such proposals have and will continue to have impacts on residents who are unable to redevelop or economically relocate. This was a concern raised in some submissions on the application.
In the interim, existing residents of Gladys Avenue face broader impacts such as increased traffic, reduced on-street parking and construction impacts from redevelopment. Whilst areas in transition typically have such impacts, it is of concern that the hospital has been operating for 3 years in the absence of controls to address these impacts. As indicated, submissions on the application included requests for controls which enable existing residents to economically relocate from the area, noting the value of the investment in many residential properties was evident to be substantial but with deteriorating amenity over time in the street in which these residents live.
Given the hospital has been in the planning, construction and now operational stage for at least a decade, it is difficult to accept that it is in the public interest for development in Gladys Avenue to continue to proceed with no changes to the development controls that apply.
I can, however, only apply the controls that exist, which are all met, and consider the impacts and merits of the single application before me.
Accordingly, I have taken into consideration the matters that are of relevance to the development the subject of the application as is required by the provisions of s 4.15(1) of the EPA Act.
In this regard, I am satisfied that the proposed development meets the relevant objectives and controls within the ARH SEPP, the LEP and the DCP including that it is consistent with the LEP objectives for the R2 zone.
I have also considered the likely impacts of the development, the suitability of the site for it, and the submissions made, including those in support of the amended application.
I accept that there will inevitably be some adverse impact to adjoining residents associated with the form of development proposed relative to what exists and what may have been expected prior to the hospital being proposed and subsequently constructed. However, I have found that these impacts do not form a sufficient statutory basis to refuse the application given the compliance with the planning controls and how the development was amended.
In this regard, the amended application before the Court was significantly different from that lodged, originally notified, and ultimately refused by the Council. In my view, the amendments made to the design, height, scale and siting of the development, and to the landscaping, make what is now proposed acceptable and there are no grounds on which it can be reasonably refused. This was also the evidence of the vast majority of experts in the proceedings.
Accordingly, I find that it would not be in the public interest to refuse the application based on the evidence. It is therefore approved subject to the agreed conditions of consent, the additional conditions offered by the applicant to further improve privacy and extend the maintenance period for the landscaping, and the footpath condition discussed below.
[12]
Proposed footpath condition
The Council's conditions of consent were agreed other than the requirement for the applicant to construct a footpath on the northern side of Gladys Avenue, being the side in which the site is located.
As indicated, under the ARH SEPP the proposed boarding house is only permissible as it is located within an 'accessible area' being within 400m walking distance of a bus stop with a regular bus service. That bus stop and service are on Frenchs Forest Road.
However, there are no footpaths in Gladys Avenue to the bus stop. Accordingly, the Council sought a condition requiring the applicant to provide a footpath from the site to the footpath in Frenchs Forest Road.
The applicant opposed this provision on the basis that developer contributions were already required to be paid by the applicant in accordance with the Northern Beaches Section 7.12 Contributions Plan 2019 (The Contributions Plan). The Contributions Plan requires contributions for infrastructure. This includes footpaths, as cited by Dr Berveling in various references within the Contributions Plan which the Court was taken to. He submitted that requiring the applicant to provide a footpath in addition to paying developer contributions amounted to 'double dipping'.
However, Mr Gough submitted that the Contributions Plan references to footpath provision applied to regional roads where no footpaths are currently provided. Further, the same condition had been imposed, without dissent, on the approved boarding house at 6 Gladys Avenue and for the aged care facility at 8 Gladys Avenue, being a standard Council condition for such uses where no footpaths currently exist.
During the hearing, the applicant offered to construct a footpath from the site to 8 Gladys Avenue but not to Frenchs Forest Road, and proposed an alternate condition accordingly.
[13]
Findings on the proposed footpath condition
Given the pressure on Gladys Avenue from parking and traffic associated with the hospital, I consider it necessary and appropriate to provide a safe pedestrian environment, noting the proposed boarding house can accommodate 110 residents, a number of which are likely to utilise public transport. The ARH SEPP allows for reduced parking on-site within boarding houses in the R2 zone on the basis they are in accessible areas where there is access to public transport. Safe access to that public transport needs to be provided.
Further, there is no guarantee that the developments at 6 or 8 Gladys Avenue will proceed, or will proceed ahead of the development at 16 Gladys Avenue.
Accordingly, I accept the Council's condition requiring the construction of a footpath on the southern side of Gladys Avenue, from the site to the footpath in Frenchs Forest Road. In this regard, the Council agreed to revise the condition to only require this construction if there is no such footpath in Gladys Avenue at the time of the development. Otherwise, the requirement is for the applicant to only build the footpath to any footpath that might be provided in the interim associated with the development of other properties on the same side of the street. The conditions imposed reflect this intent.
[14]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application DA2018/2019 seeking demolition of existing structures and construction of a boarding house with associated works at 16 Gladys Avenue, Frenchs Forest is approved subject to conditions, as outlined in Annexure A.
3. The exhibits are returned except for Exhibits A, B, E, 2 and 8.
[15]
Acting Commissioner of the Court
Annexure A (263709, pdf)
[16]
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Decision last updated: 22 January 2021