Woodhouse & Danks Pty Ltd v Ku-ring-gai Council

The site and surrounds

1. The site has an area of 816.5m2 with a frontage of 18.98m to Pacific Highway and depths of 57.94m and 61.47m along the western and eastern boundaries respectively. The southern (rear) boundary has a width of 10.26m. The site has a fall of 10.18m between the north-eastern front corner and the rear boundary.
2. The site is currently occupied by a 2 storey brick RFB with a tiled roof, and a brick garage with a concrete roof at the rear of the site. The existing driveway is adjacent to the western boundary.
3. The site incorporates several trees of varying height that are concentrated towards the rear of the site, including a Sydney Blue Gum which is proposed to be retained.
4. The site is located on the southern side of the Pacific Highway, some 143m north-west of the Roseville commercial precinct and 320m north-west of the Roseville Railway Station.
5. The balance of the surrounding area is predominantly characterised by a mixture of RFBs (mainly to the east and west), of 2-4 storeys in response to the slope of the land, and of varying age, as well as detached single dwellings (to the south). The railway is opposite on the northern side of the Pacific Highway.
6. The site is adjoined by a 2 storey RFB at 154 Pacific Highway to the east, a 2 storey dwelling house at 172 Pacific Highway to the west and the access driveway of a large 3 storey RFB at 2A Shirley Road to the rear (south).

Site view and objector submissions

1. 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 and commenced with oral submissions from a number of objectors elaborating on the concerns raised in their written submissions (comprising part of Exhibit 2).
2. At the site view, the Court inspected the site and viewed the adjoining properties including from the rear of the site. The view demonstrated the proximity of the existing RFB on the site to the adjacent residences, the location of the existing trees on the site, and the location and use of two areas of COS at 154 Pacific Highway, which were referred to during proceedings as the upper COS and the lower COS.
3. The Court also heard from Ms Castle, a Lindfield resident and objector, who attended the site. She noted that the plan had changed several times and raised concerns with the size, scale and density of the development which she considered incompatible with the area. She also raised concerns with noise and traffic impacts, and sought retention of the Sydney Blue Gum. Her husband subsequently also addressed the Court. His main objection was that the boarding house was an unwanted development in the area.
4. The Court then heard from Ms Gekas, who resides in the adjoining dwelling house to the west at 172 Pacific Highway. She has lived there with her husband since 1987 and both were now in their 80's. She was concerned that the site contains an existing RFB with only 4 residents where now 50 people were proposed, and with the 4 storey height of the rear elements. She believed that the site was too small for the number of rooms proposed, the development incompatible with the character of the area, the side setbacks too narrow, and the parking inadequate. She also raised concerns with construction impacts.
5. Ms Falconer, who lives at 7/154 Pacific Highway, submitted that her RFB would be the most impacted by the development. Her main concerns were with overshadowing, privacy, noise and the higher built form element to the rear. This was in part a result of the narrow side setbacks, precluding deep soil landscaping. What was proposed was incompatible with the area given the bulk and scale and the built form (including the flat roof) which would dominate the streetscape. She was also concerned with the potential loss of the Sydney Blue Gum in the rear of the site. She indicated that she used the lower COS for gardening but she mostly used the upper COS.
6. Ms Bell, the owner of 4/154 Pacific Highway, advised that all owners of that RFB objected to the development. Their concerns included potential damage during construction, insufficient side setbacks, and the potential for oversized trees in the side setback area which could encroach into their property and would be difficult to maintain. Other concerns were the density of people and potential noise (including from air conditioning and the car park). She queried whether the design complied with the regulations and also the demand for the boarding house given the affordability of the rents in nearby RFBs. Finally, she considered the development to be out of character with the local area. She advised that residents use the COS on the site as they had no balconies or private open space however, she had not used the lower COS.

Planning controls

1. The requirements of s 4.15(1) of the EPA Act are relevant for the Court's consideration, and must be satisfied in order to grant consent. Relevant to this appeal, these requirements include the need to consider the provisions of any environmental planning instrument and any development control plan, the likely impacts of the development, the suitability of the site for the development, any submissions made, and the public interest.
2. 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.
3. Clause 29 of the ARH SEPP provides standards that, if met, cannot be used to refuse consent.
4. Clause 29(1), relating to density or scale, was not in contention and it was also agreed that compliance was achieved with the controls in cl 29(2) in terms of the landscape area applying to the front setback, solar access to the communal living room, private open space provision, and car parking provision. The height standard was not met but the proposed height was agreed by the Council to be acceptable.
5. The only provision of cll 29(2) or 29(3) in contention was subcl 29(2)(f): (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case.
6. At cl 29(4), a consent authority may consent to development whether or not the development complies with the standards set out in cl 29(2).
7. At cl 30(1), the ARH SEPP provides standards which are determinative, whereby the consent authority must be satisfied in order to grant consent to the application. Compliance with these standards was not in contention.
8. It was contended that the requirement of cl 30A of the ARH SEPP was not met, 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.
9. The site, and the adjacent development, is located within the R4 High Density Residential zone under the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (the LEP). Boarding houses are permissible in the R4 zone.
10. The R4 zone objectives are as follows and are a relevant consideration, noting however, that the Council did not contend that the objectives were not met: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for high density residential housing close to public transport, services and employment opportunities.
11. The rear portion of the site is designated as an "Area of Biodiversity Significance" at cl 6.3 of the LEP and is therefore subject to the provisions of cl 6.3. No development, other than landscaping, is proposed in this portion of the site and compliance with cl 6.3 was not in contention.
12. There is a slight exceedence to the permissible height under cl 4.3 of the LEP to accommodate the lift overrun. However, the parties agreed that the provisions of the ARH SEPP over-ride the need to apply cl 4.6 of the LEP in order for consent to be granted given this exceedence.
13. The parties also agreed that the other relevant provisions of the LEP are satisfied by the proposed development including compliance with the maximum floor space ratio of 0.85:1.
14. In assessing the application, the applicable controls of the the DCP are also relevant. There are no controls for boarding houses in the DCP. However, the Council sought to apply the provisions for RFBs at Part 7 of Section A of the DCP (Part 7). The applicant argued that only the General Provisions in Section C of the DCP apply to assessment of the application.

Local area compatibility including impacts on neighbours

1. 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.
2. In this regard, the Council considered the emphasis should be on the desired future character of the local area, whilst the applicant argued that the focus should be on the existing character.
3. The Council also argued that the predominant built form in the R4 zone is, and would remain, RFBs. Therefore, it was appropriate to assess the development against the provisions for RFBs in Part 7 (of the DCP) given the site is located in the R4 zone.
4. The Part 7 controls in contention related to side setbacks, site coverage and deep soil landscaping. In particular, the Council contended that the RFB side setback controls were not met thus precluding the ability to provide canopy trees in these setbacks. Further, partly as a consequence of these setbacks, the proposed development would have unacceptable impacts on neighbours, particularly in terms of overshadowing the COS at 154 Pacific Highway.
5. Part 7 requires a minimum side setback of 3m for RFBs up to 3 storeys or 6m for up to 4 storeys on a site of this size. The proposed minimum side setbacks of the boarding house are 1.6m and only increase to 3m for the front portion of the building. The basement and privacy screens encroach into these setbacks, being as close as 1.3m.
6. The parties referenced the Court's Planning Principles for the compatibility of a development with surrounding development in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) as follows: "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 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing… 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… 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 … 31 It should be remembered that most people are not trained planners or urban designers and experience the urban environment without applying the kind of analysis described above. As people move through the city, they respond intuitively to what they see around them. A photomontage of a proposed development in its context provides the opportunity to test the above analysis by viewing the proposal in the same way that a member of the public would."

Evidence

1. The design experts agreed that there were no controls in the ARH SEPP, LEP or DCP for boarding houses in terms of minimum site area, side setbacks, deep soil landscaping, solar access to adjoining properties, or site cover. There were also no contentions regarding the bulk, scale, front or rear setback, or visual impact of the proposed boarding house, nor was a concern raised with the architectural elements or materials of construction.
2. The applicant's design experts argued that the local area was the "visual catchment" of the site, which they defined as the section of Pacific Highway between Shirley Road to the west and 134 Pacific Highway to the east. This area was not necessarily agreed to by the Council, but the Council provided no alternate defined local area and submitted that not much turned on their disagreement.
3. A site view and streetscape analysis prepared by Mr Dickson indicated that the local area contains a diversity of dwelling styles and density, with a mixture of RFBs and single dwellings, and the rail corridor opposite. Surrounding development is predominantly a 2 storey built form typology with pitched hip roofs and a fine grain rhythm of recessive elements in the street façade to create building articulation. In particular, the site is one of 7 adjoining properties within its visual catchment of similar configuration and development style.
4. Mr Dickson argued that this fine grain rhythm is continued in the proposed boarding house. Further, it reads as 2 storeys with a recessive third storey when viewed from Pacific Highway and, when viewed from the signalised intersection of the highway with Clanville Road, it would present built form of the same height as the buildings on the adjoining sites.
5. Further, the setbacks on this side of the Pacific Highway are inconsistent, resulting in a "radial" effect, with side setbacks less than 1m. Rear setbacks are also inconsistent, given the irregular shape of the neighbouring lots.
6. He argued that the proposed development adopts side setbacks which maintain the vertical rhythm of the built form within the visual catchment. As such, the development meets the Planning Principle in Project Venture, being "in harmony with" the existing character of the local area. Therefore, whilst the proposed boarding house may not comply with some Part 7 controls for RFBs, the proposed development takes into consideration the existing character of neighbouring built forms, consistent with cl 30A.
7. Mr Haynes noted that there is no statement within the LEP or DCP that the anticipated predominant new built form in the zone will be RFBs. To the contrary, the R4 zone permits a range of uses and development forms, including boarding houses. He noted that the R4 zone is not limited to the location, and that the current, or similar, controls have been in place for some time, with little resultant redevelopment.
8. He argued that the sites within the visual catchment were unlikely to be redeveloped in the foreseeable future. They contain primarily older RFBs (inter-war housing) on relatively long and narrow sites, similar to the appeal site and, also similarly, do not meet the LEP site area or frontage requirements to be redeveloped for RFBs or multi-dwelling housing.
9. A valuation report had also been submitted for the RFBs at 148 and 154 Pacific Highway indicating that it would not likely be feasible to acquire each of the units in these RFBs in order to amalgamate the lots and redevelop them in a manner compliant with the current controls.
10. Accordingly, he had formed the opinion that the long established built form within the site's visual catchment "is unlikely to change on a wide scale or in a significant manner. Therefore,…, greater weight should be given to the existing character in assessing the proposal's compatibility with the local area". (Exhibit 7, p13).
11. Dr Zanardo's evidence was that, in order to be compatible with the local character, the boarding house should reflect the DCP controls that apply to the predominant residential form in the zone, being those for RFBs (Part 7) or, at least, those controls should be applied as a guide to establishing the appropriate built form for the site. Having considered those controls, he concluded that the proposed development was incapable of existing together in harmony with the character of the local area because it did not achieve the key built form and landscaping outcomes required by Part 7: adequate side setbacks; appropriate site coverage; and sufficient deep soil landscaping.
12. In particular, he was concerned with the inability of the proposed side setbacks (being only half that required for RFBs) to support substantial trees and to maintain any landscaping therein. He argued that the proposed deep soil landscaping of the site, at 32% of the site area, was substantially less than the 40% required (for RFBs) in Part 7. The objective of having significant trees in all setbacks was also not achieved. These are different controls to satisfy than the LEP required provision of "landscaped area", which was met.
13. However, Mr Dickson argued that the existing rear garage slab is required to be maintained to preserve the structural integrity of the Sydney Blue Gum. Whilst the area over it will be landscaped, if it was demolished and replanted, 42% of the site area would comprise deep soil landscaping.
14. Whilst accepting that that a person walking down the street would not perceive that the landscaping in the front setback did not meet the definition of deep soil landscaping in the DCP, Dr Zanardo noted that it is the basement which restricts the ability for deep soil landscaping within front and side setbacks. Instead, the western side setback would be dominated by hard paving, whilst the front setback was dominated by the driveway, also contrary to Part 7.
15. Dr Zanardo's argument that the RFB controls in Part 7 should be considered in determining desired future character was based on the Court's decision in Elcheikh v Cumberland Council [2018] NSWLEC 1165 (Elcheikh) where, at [38], Gray C stated that "in order to be compatible with the future character of the local R4 area, the boarding house must reflect the controls that apply to the predominant residential form in the zone, which are residential flat buildings".
16. He noted the Planning Principal in Project Venture that, in situations where the planning controls envisage a change of character, compatibility with the future character is more appropriate than with the existing character, and that is where the emphasis should be placed. This future character was informed by the Part 7 controls. In this regard, he considered that the site was too small and too narrow for the development proposed, concluding that "the proposal should not perpetuate an inferior outcome with deficient side setbacks and deep soil landscaping, and excessive site coverage, in the name of the existing character". (Exhibit 7, p32).
17. The applicant's design experts disagreed that the site was too small or too narrow for a boarding house on the basis of applying DCP setback controls for RFBs which was not the form of development proposed. Whilst accepting that the site did not meet either the site area or frontage requirements of the LEP for an RFB, the Council was nevertheless seeking to apply side setback controls as if it were capable of such development.
18. They also argued that the landscaping on the southern side of Pacific Highway is characterised by landscaped front yards and densely landscaped rear setbacks containing canopy trees. Substantial landscaping is proposed using species from the Council's species list. Three Sydney Red Gums are proposed as part of the deep soil landscaping (one in the rear and one in the front setback areas), whilst the Sydney Blue Gum in the rear yard is also retained and protected. With smaller trees also proposed in the side setbacks, there will be significant tree cover across the site.
19. However, the landscape experts also disagreed that the proposed landscaping of the side setbacks was adequate or compliant with applicable DCP controls.
20. They did agree that the side setbacks were of insufficient width to support "substantial" trees. However, Mr Storch argued that they were wide enough for smaller trees which would still create a substantial landscape setting for the proposed development consistent with the character of the local area.
21. However, Mr Francis argued that the proposed landscaping did not achieve the required garden setting character expected by the Part 7 controls as the side setbacks lacked substantial, quality areas of deep soil landscaping.
22. It was agreed that there are narrow side setbacks with little landscaping in the developments on either side of the site, and that this was consistent with the properties on the southern side of the Pacific Highway in the vicinity. Mr Francis also agreed that there were only oblique views of landscaping in front and side setbacks due to the existence of high masonry walls. He also agreed that, apart from a cedar and tallowwood tree on Shirley Road, there were currently no "substantial" trees in the site's visual catchment. However, there were large canopy trees in the rear setbacks of these properties which can be seen from Shirley Road.
23. In oral evidence, Mr Francis confirmed that by "substantial trees" he meant "canopy trees". He understood that "substantial trees" were required in the side setback areas under Part 7.
24. However, Ms Hemmings, counsel for the applicant, took the experts to the "Tree Replenishment and Planting" provisions for RFB developments at Part 7: 7A.6. These state that, depending on lot size, a minimum number of "tall trees" capable of attaining a mature height are required. For a lot the size of the site, 1 tall tree per 400m2 of site area or part thereof is required, being a total of 3 tall trees (Control 7). However, there is no reference to, or requirement for, such trees specifically in the side setback areas.
25. In addition to tall trees, Control 8 requires that "a range of medium trees, small trees and shrubs are to be selected to ensure that vegetation softens the building form and creates a garden setting. At least 50% of all tree plantings are to be locally occurring trees and spread around the site".
26. Control 9 states that trees are to be planted within all setback areas. At least 30% of the required trees are to be planted within the front setback.
27. In oral evidence, Mr Francis accepted that the proposed development complied with Control 7, as there will be 4 trees which are more than 18m tall, and that Control 8 does not reference "substantial" or "canopy" trees. Rather, it only requires that a range of small and medium trees and shrubs are required to soften the built form and create a garden setting, and such a range is proposed. Further, that more than 50% of the trees and shrubs proposed are "native" and 30% of the trees will be within the front setback as required by Control 9.
28. Mr Francis also agreed that basement parking is the most appropriate solution to maximise landscaping on the site and that at-grade parking at the front or rear of the site would be atypical. It would also either conflict with the planting in the front setback or have an impact on the Sydney Blue Gum at the rear.
29. Mr Storch did not consider that canopy trees would be appropriate in the side setbacks. Rather, the proposed landscaping in all setbacks was appropriate, including bamboo in part of the western setback, as it was consistent with the existing landscaped character on the southern side of the Pacific Highway in the vicinity. He provided evidence on how this landscaping could be maintained.
30. In response to Ms Bell's concern with tree roots spreading onto 154 Pacific Highway, the experts agreed that the roots of the proposed trees adjoining the side boundaries would be unlikely to cause a problem as they are smaller trees. Mr Paroissien also argued that, if there were canopy trees on the side boundary, such trees would have a higher spread and a bigger root system, requiring larger tree protection zones.
31. There was much oral evidence as to the likely height of the bamboo screening that was proposed to be provided along the western boundary and whether it would reach the ridge height of the proposed development. Ultimately, Mr Storch's evidence was that it may attain this height at the point where the building steps down the slope to the south however, he accepted that it would be unlikely to fully screen the side elevation of the proposed boarding house.
32. Finally, the design experts considered compatibility in terms of the physical impacts of the proposed development on the three adjoining properties.
33. No concerns were raised with impacts to the development at the rear. However, the Council was concerned with the impacts on the two adjoining properties to either side noting also the submissions made by these property owners.
34. In this regard, the amended SFC raised concerns with potential for unreasonable physical impacts on these neighbours in terms of noise, overlooking, overshadowing and constraining development potential.
35. In terms of noise, the acoustic experts subsequently agreed that acoustic impacts were resolved by proposed conditions of consent and the imposition of a Plan of Management which incorporates the acoustic recommendations. There requirements were agreed to by the applicant.
36. The design experts also agreed that overlooking concerns were resolved by proposed privacy screens and fixed highlight glazing which provide visual privacy to the neighbouring properties, including their COS. Further, that the proposed development does not have unacceptable overshadowing impacts on 172 Pacific Highway.
37. However, they disagreed on the acceptability of the overshadowing to the COS of the adjoining RFB at 154 Pacific Highway.
38. It was agreed following the site view that there were two such areas of COS. The first immediately adjoins the rear of the RFB and contains two Hills Hoist clothes lines, as well as a small table with two chairs located adjoining the south-eastern boundary. This upper COS was referred to by the Council as the "primary area". The second, lower COS at the rear of the property and accessed by stairs from the upper COS, was referred to by the Council as the "secondary" area".
39. The experts agreed that there would be no unacceptable overshadowing of the lower COS which would receive good solar access even in mid-winter. Further, the upper COS is overshadowed by the existing RFB at 154 Pacific Highway between 9am and approximately 1.30pm in mid-winter but then receives some solar access to 3pm to the area containing the table and chairs. Therefore, at most, a portion of the upper COS currently gets 1.5 hours of solar access in mid-winter.
40. Even though disputing the applicability of the Part 7 controls (which require maintaining solar access to neighbouring properties), in applying such controls, Mr Haynes and Mr Dickson argued that that would be a marginal non-compliance, being an additional 15 minutes of overshadowing of the useable area of the upper COS in mid-winter, being where the table and chairs were located.
41. However, Dr Zanardo argued that the proposed development unnecessarily results in total overshadowing of the upper COS in mid-winter.
42. In oral evidence, the applicant's design experts advised that, when they visited the appeal site, they were unaware of the lower COS available to residents of No. 154. Neither understood that there were steps from the upper to the lower COS. However, as a result of the site view, they had reason to change their opinion in the Joint Report that the upper COS was necessarily the primary area of COS as contended by the Council.
43. Mr Haynes noted that the lower COS was well maintained, private (with tall bamboo planted towards the east), and received good solar access. It was used for gardening by Ms Falconer, so there was evidence that at least some residents of No. 154 use this area. He also argued that the primary use of the upper COS was for the two clothes lines, being primarily a service area.
44. Mr Dickson, who is also a landscape architect, argued that COS should be located away from drying areas and that the upper COS was a "fairly insipid space" with limited amenity. He would design COS away from service areas. In his view, the upper COS was not a place where one would wish to sit. By contrast, the lower COS contains quality landscaping, including pot plants, and is large enough for tables, chairs and a BBQ, therefore is a better area for COS.
45. Ms Hemmings also submitted that Part 7 includes objectives to not have clothes drying areas included within COS. Further, the definition of "communal open space" in Part 7 excluded areas used for clothes drying
46. However, Dr Zanardo argued that the RFB had been there for many years and was not subject to current controls. Dual use of such areas was not uncommon in older RFBs. The lower COS does not have tables and chairs whilst the upper COS does, and appears well used. One must consider what is provided and available in terms of COS, and residents said they mostly used the upper COS.
47. Mr March, counsel for the Council, also submitted that the steps would not provide access for people with a disability to the lower COS.
48. However, Mr Haynes stated that it wasn't clear if there was disabled access to the upper COS either.
49. Mr Dickson also argued that the upper COS, given its location, was vulnerable to overshadowing. He had prepared what he referred to as a "complying RFB scheme" for the site, assuming an amalgamated site given the required LEP controls for RFBs, for comparative purposes. This scheme adopted the RFB side setback controls and showed little difference in terms of overshadowing of the upper COS relative to the proposed boarding house.
50. The Council disputed the validity of this comparison, including the assumptions made on amalgamation with, and redevelopment of, 174 Pacific Highway, and the compliant envelope therefore adopted.
51. Having regard to all the evidence, the applicant's submissions were that the overshadowing impacts of the proposed development would be acceptable. In summary, in mid-winter, there is currently less than 15 minutes of sun which will be removed where the table and chairs are located in the upper COS. However, the location of this COS makes it vulnerable to adverse solar impacts from any reasonable development of the site under the R4 controls. The lower COS is only overshadowed by the RFB on its own site between 9-10am in mid-winter and receives, and will continue to receive, significant solar access from 12 noon through to 3pm in mid-winter.
52. Finally, the experts considered whether the proposed development would constrain the development potential of adjoining sites. Mr Haynes and Mr Dickson were of the opinion that none of the adjoining properties were 'ripe' for re-development, but if any were to be redeveloped it would be 172 Pacific Highway given that contains a dwelling house, which is not the highest and best use in an R4 zone.
53. The experts subsequently agreed that the proposed development does not constrain the development potential of No. 172 and that the remaining adjoining sites were unlikely to be redeveloped given they contain RFBs, particularly the development to the rear fronting Shirley Road.

The Council's written submissions

1. Mr March submitted that an appreciation of the character of the local area includes understanding both its existing character and its desired future character referencing the Court's decision in Kohler Bros Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1364 (Kohler) at [50]: "…An appreciation of the character of the local area includes understanding both its existing character and its desired future character. In an area that the parties agree is undergoing a state of transition, there is largely agreement that more weight should be placed on the future desired character than its existing character."
2. This appeared to also be accepted by the experts in addressing the contention and it would be absurd to establish a planning regime for the future development of an area and then fail to take into account the desired future character for that area when assessing a development application.
3. Control 3 of Part 7A.6 requires that deep soil zones are to be configured to allow for required tree planting including tall canopy tree planting and garden and screen planting at front, side and rear boundaries.
4. The available screen planting opportunity on the western setback is so limited by the narrowness of the setback proposed that a non-native species, bamboo, is proposed to be used. However, based on the planting schedule, at 8m in height, the proposed bamboo will not approach anywhere near the ridge height of the building for almost the entirety of its length.
5. Elements of the proposed development put forward by the applicant's experts to demonstrate compatibility were, in effect, not relevant as they were not contended matters in the proceedings. What was relevant, having regard to Project Venture, was the essential element of the local character, being the landscaped setting of development.
6. Mr March went into some detail to outline the aims, controls and objectives within Part 7 which he considered should be taken to inform the desired future character of the local area. In particular, the objective to maintain the garden character of the area and the associated controls which seek that development occur within a landscaped setting. An example is the requirement for large trees to be provided on all sides of a building which achieves this outcome but also protects the amenity of neighbouring properties and screens blank facades.
7. Therefore, great weight should be given to the Part 7 provisions in order to achieve the desired future character of the local area.
8. In terms of the overshadowing impacts to the COS at 154 Pacific Highway, he submitted that Mr Dickson's hypothetical compliant scheme assumed the amalgamation of the site with its neighbour (in order to enable an RFB development) with much of the shadow in the latter afternoon being caused by the hypothetical development of the neighbouring site. That does not assist the Court in understanding whether a development on the current site with wider setbacks, an outcome sought for by Council, would have had a lesser overshadowing impact. Further, and in any event, as Mr Dickson conceded, the overshadowing impacts of a "compliant" scheme would still need to be taken into consideration in assessing an application for any such development.

The applicant's written submissions

1. Ms Hemming submitted that the Court would reject the applicant's position as to the controls that should apply in determining the application and in considering the local area's character.
2. Firstly, she submitted that "character of the local area" for the purposes of cl 30A is not defined by the controls in Part 7 of the DCP which expressly apply to RFBs as defined in the LEP. There is no definition of "character" in the ARH SEPP nor is there a reference to "desired future character" there, or in the LEP or DCP. The term "desired future character" is used in the LEP only in relation to the site requirements for multi-dwelling housing and RFBs and the Council did not contend that the proposed development is characterised as being for either of those uses.
3. Secondly, the Council's justification for applying the Part 7 controls was misconceived and contrary to the express terms of the DCP itself. The DCP sets out controls for developments of a specified "type" but those types do not include boarding houses even though it is a nominated permissible use in the R4 zone. The DCP does not operate so as to require the application of provisions for RFBs in the absence of controls for a boarding house.
4. Rather, the DCP provides that, where the development type is not specified, then the general controls in Section C of the DCP apply, and there was no contention that the proposed development does not comply with these controls.
5. Further, it is unreasonable for the Council to contend that the proposed development could only be consistent with the local area character if it was developed in accordance with the RFB controls in circumstances where a variety of housing types are permitted in the R4 zone which do not need to meet those controls, including the proposed boarding house. It is also inappropriate to assume that every site in the zone would be redeveloped for an RFB when one of the objectives of the R4 zone is to provide a variety of housing types within a high density residential environment.
6. Further, there was no evidence that the local area is likely to change or is undergoing change. The only available evidence before the Court indicated to the contrary, that is, current market forces point to it being unlikely that redevelopment will occur in the future. Therefore, the focus of the applicant's experts on the existing character was entirely appropriate.
7. Dr Zanardo's argument with respect to desired future character relies on the Elcheikh. However, the fact that the Court in another merit appeal found that in the circumstances of that case it was relevant to consider the "predominant building form" having regard to the particular objectives in the zone with respect to a different LEP and the controls of a different DCP does not assist the Court in making findings in relation to this case.
8. Thirdly, the proposed development complies with all applicable controls for boarding houses. It was not disputed that there are some RFB controls in Part 7 that are not met however, there is no requirement for a boarding house to meet these controls in order to be compatible with the character of the local area. If it was intended that it should do so, the DCP could have included such controls for boarding houses, but it does not. Even so, it was the evidence of Mr Haynes and Mr Dickson that the proposed development met the objectives of the contended controls in Part 7.
9. Further, even if the DCP provisions for RFBs were applicable, pursuant to s 4.15(3A) they should be flexibly applied and allow reasonable alternative solutions that achieve the objects of those standards.
10. Fourthly, on the basis of the evidence, the design of the proposed boarding house satisfies the Planning Principles for compatibility with surrounding development in Project Venture, being "in harmony with" the existing character of the local area. This should be given greater weight than any desired future character in circumstances where it is unlikely that the sites within the visual catchment of the site will be redeveloped in a manner which reflects the current planning controls for RFBs or multi-dwelling housing.
11. Finally, considering impacts to neighbours, the proposed development (as amended) did not result in unreasonable physical impacts on these neighbours in terms of noise, overlooking, overshadowing or constraining development potential. This included overshadowing of the COS at 154 Pacific Highway noting, in any event, that there was no evidence that the upper COS was wheelchair accessible nor of any wheelchair accessible apartments in that RFB.
12. Further, due to the minimum width requirements in the LEP, an RFB could not be erected on the site unless it was amalgamated with the adjoining lot. Therefore, any assumed "complying development" for the purposes of an RFB on the site must include amalgamation with the adjoining land.
13. She concluded that what is proposed is in harmony with the local area in terms of height, setback and landscaping. It was also not contended that the proposed design was not compatible in terms of roof form, front and rear setbacks, the radial effect of the front setbacks along this part of the Pacific Highway, the building materials, the front fence, the building height, or the fine grain rhythm of the existing built form within the visual catchment of the site.

Findings on local area compatibility including impacts on neighbours

1. Other than the contended size of the boarding rooms, all of the Council's contentions related to an assessment of the application against the DCP provisions at Part 7 relating to RFBs, including to establish if the proposed development will be compatible with the character of the local area, as referenced in cl 30A of the ARH SEPP.
2. The contended Part 7 controls were those associated with the side setbacks; in particular, their width, the acceptability of the landscaping they contained, and the implications in terms of solar access to the COS at 154 Pacific Highway.
3. Whilst I accept that an assessment against the Part 7 controls may assist in determining the form of development that may be reflective of the future local character, I agree with the applicant that there is no statutory requirement for the proposed boarding house to comply with those controls.
4. Rather, the proposed development is only required to meet the applicable controls and provisions in the ARH SEPP and the LEP, and the general development controls in the DCP at Section C. None of these require refusal of the application.
5. Specifically, in terms of cl 29 of the ARH SEPP, the proposed development (as amended) complies with the scale and density requirements and was acceptable to the Council in terms of height. It was also agreed to meet the front setback landscape area streetscape compatibility, solar access and private open space requirements of that clause. The parking requirements of cl 29(2)(e) were also met. Therefore, and notwithstanding these were issues raised by objectors, neither the scale or density, nor the amount of parking provided, can be a basis for refusal.
6. Further, I am satisfied (and there was no dispute) that the standards for boarding houses at cl 30(1) are all met.
7. The application proposes a form of residential accommodation permitted in the R4 zone, being a boarding house, in an agreed highly accessible location, thus satisfying the objectives of the R4 zone. These would be thwarted if all development in the R4 zone comprised only RFBs, which is not the intent of the R4 zone. Therefore, the DCP controls for RFBs, such as side setbacks and deep soil landscaping provision, should similarly not be imposed on all forms of development permissible in the zone.
8. In this regard, I agree with the applicant that, whilst accepting that the site did not meet either the site area or frontage requirements of the LEP for an RFB, the Council was nevertheless seeking to apply side setback controls as if it were capable of such development.
9. I also agree with the applicant's submissions that, even if Part 7 applied or should be considered, strict application of numerical DCP controls is inappropriate as it would have the effect of prohibiting a development otherwise compliant with the ARH SEPP and thus would be inconsistent with the facultative and beneficial provisions of that SEPP.
10. In considering the character of the local area, the extent of that area was not specifically defined by the Council but was argued by the applicant's experts to be the "visual catchment", being the development visible from the site. As the Council submitted that not much turned on the extent of the local area, I accept the applicant's definition of that area.
11. There is variety of existing development in the visual catchment, including dwelling houses, but it primarily comprises older style RFBs. There is also a range of permissible future uses.
12. I agree with the Council, and it is alluded to in Project Venture, that consideration of (desired or likely) future character is a relevant consideration. However, I accept the applicant's evidence that the future character of the local area is unlikely to be significantly different to the existing character given the likely limited redevelopment of the area.
13. In this regard, and notwithstanding the submissions of the Council, there was no evidence that the planning controls will result in any significant change in the existing local character given such, or similar, controls have been in place for some time and permit medium to high density development, yet little recent redevelopment has occurred, largely due to the predominance of the existing RFBs.
14. This is in contrast to the situation in Kohler, relied on by the Council, where the parties agreed that the local area was in transition as a result of new controls, including specific controls for boarding houses in the DCP which were not met, and therefore more weight was given to the future rather than existing local character having regard to the considerations of Project Venture: at [23].
15. Similarly in Elcheikh, at [1], the Commissioner noted that the local area was "in a state of transition anticipated by multiple changes to the planning controls" and where those controls specifically required new boarding houses to comply with the anticipated predominant building type in the zone, being RFBs.
16. Neither of these cases therefore reflect similar circumstances to this appeal.
17. Even though RFBs are the predominant existing form of development in the local area, there is no requirement that all new development be RFBs, or in the form of RFBs. As I have indicated, such an outcome would be contrary to the R4 zone objectives which seek a variety of housing types within a high density environment. It would also ignore the permissibility of a range of different residential forms in the zone within the LEP and the intent of the ARH SEPP for boarding houses to be approved in the zone.
18. Nonetheless, the applicant considered the local area context, and had regard to the intent of the controls for RFBs at Part 7 of the DCP, and, in particular, the desire for development to have a landscaped context.
19. I find that the landscaping proposed responds to this intent and context.
20. Deep soil landscaping will be concentrated in the biodiversity corridor at the rear of the site, forming a continuous tree canopy and maintaining the landscaped backdrop to development visible from both Pacific Highway and the adjoining section of Shirley Road.
21. Canopy trees will comprise 3 Sydney Red Gums (1 in the front setback and 2 in the rear) and the retained Sydney Blue Gum. Given privacy and outlook for neighbours were not contentions pressed by the Council in terms of the amended application, I see no basis to require additional canopy trees to also be provided in the side setback areas.
22. I also note the concern of an adjoining resident at 154 Pacific Highway not to have large trees in the side setbacks given the proximity of their RFB and the potential encroachment into their property that could result.
23. Further, it was agreed that substantial, tall or canopy trees are not required, even for RFBs, in the side setbacks and would be atypical in terms of the landscaping of neighbouring properties. Nevertheless, the smaller trees and other plantings proposed in the side setbacks, including bamboo as a low maintenance screening plant capable of growing in narrow environments, will result in landscaping to all boundaries, albeit not deep soil landscaping.
24. Finally, even if the RFB controls in Part 7 of the DCP did apply, the required landscaping controls and objectives at Part 7:A7 are met.
25. No issues were raised with the visual impact of the proposed development in terms of its appearance, material, height, bulk or scale. In this regard, I do not accept Mr March's submission that such aspects of the development, which were argued by the applicant to demonstrate compatibility with the character of the local area, were not relevant because they were not in contention. Simply because they are not in contention, does not mean that they are not elements to consider in determining compatibility. On the contrary, the Court is required to consider, at cl 30(A) of the ARH SEPP, if what is proposed is compatible with the character of the local area, irrespective of the contentions.
26. In line with the Planning Principles in Project Venture, I have also specifically considered the impact of the proposed development on the character of the street. This character is diverse, being a major highway adjoined by a rail corridor and with development at the rear of properties in the street at lower levels and orientated toward Shirley Road. Immediately adjacent developments to the side of the site comprise interwar housing, being a brick and tile dwelling house and RFB presenting as 2 storeys to the highway. These developments have minimal side setbacks and landscaping in the front setback and, as previously indicated, more extensive landscaping at the rear visible as a backdrop from the highway.
27. The proposed development reflects this, with similar: height to the street; side setbacks; and deep soil landscaping at the rear visible from the highway. What is proposed is of a contemporary appearance but, as indicated, no concerns were raised in terms of that appearance. It will also be of a different typology and form of development from that existing in the street but that does not mean that it is not in harmony with it.
28. As I have already alluded to, there was also no evidence that this existing development in the site's visual catchment would likely change in the foreseeable future, which would suggest a different form or character of development should be required. Placing emphasis on the existing local character is therefore more relevant in these circumstances than assuming some form of alternative future character.
29. Specifically, there are 7 adjoining properties fronting the southern side of Pacific Highway, including the subject site, between Shirley Road to the west and 134 Pacific Highway to the east after which the site is no longer visible due to the curve of Pacific Highway and where lot sizes and widths change. The rail corridor is on the opposite side of the highway.
30. These 7 properties contain older style buildings and have inadequate frontage under the LEP to permit RFBs. Therefore, I accept, based on the site view and evidence, they are unlikely to be re-developed, even if that were viable, for RFBs under the provisions of Part 7 of the DCP. It was also agreed that the site at the rear, being 2A Shirley Road, was unlikely to be redeveloped given the scale and density of the RFB on it, and that the form of development along Shirley Road was not characteristic of development in the site's visual catchment.
31. I also accept the evidence of Mr Dickson that, should the adjoining sites be amalgamated so as to permit RFBs, the outcome would be a built form which would depart from existing built form in the visual catchment, being up to 3 storeys at the front elevation, with large footprints, and with minimum 6m building separation to neighbouring properties.
32. In contrast, the proposed development generally adopts similar side setbacks to those of adjoining properties but, notwithstanding that the width of the site precludes RFBs, side setbacks of 3m as required for RFBs are provided at the front of the building.
33. In summary, the proposed development maintains the vertical rhythm of built form of the properties within its visual catchment whilst enhancing the landscaped setting of the development on the site.
34. Finally, based on the evidence and the site view, I also find that there are no unreasonable amenity impacts from the proposed development to adjoining properties, nor will it unreasonably impact upon the development potential of adjoining land.
35. The experts agreed that privacy and noise impacts had been addressed or could be resolved by agreed conditions, and there were no contention in terms of the height, bulk, scale or visual impact of the proposal. The only amenity contention was the increased overshadowing of one of the two COS areas of 154 Pacific Highway.
36. Whilst I accept that the remaining solar access in mid-winter available to part of the upper COS at 154 Pacific Highway will be lost, it was agreed that the existing RFB on that property creates most of the overshadowing of this COS and that the bulk of this COS comprises clothes drying facilities.
37. Further, the RFB residents do have the ability to use the lower COS as an alternative communal area. Based on the site view, I agree that this lower area is relatively attractive (albeit required to be accessed by stairs) and will maintain good solar access in mid-winter. Further, there was no evidence that the upper COS was accessible, in any event, nor that the apartments in the older RFB at No. 154 were themselves "accessible".
38. It is not a reasonable expectation to maintain solar access to all areas of COS to the rear of the RFB at 154 Pacific Highway. Any redevelopment of the appeal site under the R4 controls would likely result in the loss of the remaining solar access in mid-winter to the upper COS, and solar access to this COS in mid-winter has primarily already been removed due to the RFB on the site itself.
39. In conclusion, having had regard to the contentions, including the physical impacts of the development and finding these acceptable, and noting there was no pressed contention regarding the development potential of adjoining sites, the relevant consideration under cl 30(A) of the ARH SEPP has been undertaken.
40. Based on the evidence, and largely for the reasons advanced by the applicant, I am satisfied that the proposed development is compatible with the character of the local area noting that, even if I do not consider it compatible, consent is not precluded.
41. As I have considered the local character under cl 30A of the ARH SEPP and am satisfied that the amenity impacts on neighbours are acceptable in the circumstances, there is no basis for refusal on these grounds, and the application ought to be approved.
42. I therefore turn to consider the final remaining contention, that being the size of the boarding rooms proposed.

Boarding rooms sizes

1. The design experts disagreed as to the GLA of 9 boarding rooms under cl 29(2)(f) of the ARH SEPP and therefore whether the rooms were single or double rooms, and consequently how many lodgers could be accommodated.
2. The clause is worded such that the Court would be precluded from refusing consent on the basis of accommodation size, if the single and double rooms had at least the nominated GLA. However, consent could still be issued if that was not the case.
3. Specifically, the nominated GLA is required to exclude areas used for the purposes of private kitchen or bathroom facilities. Once these areas are excluded, if the room size is at least 12m2 GLA, consent cannot be refused if it is to be used by a single lodger, or 16m2 GLA for any other room, being a double room in this instance.
4. The contention was whether a 600mm deep area in front of the kitchen joinery of the 9 rooms was required solely for the use of the kitchen, and therefore should be excluded from the GLA calculation.
5. Excluding the manager's room, the applicant contended that the appropriate measurements result in 14 single and 12 double rooms accommodating up to 38 lodgers, whereas the Council's measurements resulted in 23 single and 3 double rooms, or 29 lodgers.
6. The experts prepared a schedule setting out the GLA for each proposed boarding room (Exhibit 9). The 9 rooms in dispute were designated as rooms B1.2, B2.2, G.3, G.4, G.5, 1.5, 1.6, 2.2 and 2.3.
7. Dr Zanardo did not accept these rooms as double rooms having regard to O'Neill C's finding in Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 (Anglican Community Services) at [43] being: "I prefer Mr Smith's reasoning that an area in front of the kitchen joinery of at least 600mm deep be excluded from the calculation of the area of a boarding room because the provision excludes any area used for the purposes of private kitchen or bathroom facilities. The area immediately in front of the kitchen joinery must be devoted to the kitchen for its proper use and cannot, for example, be occupied by furniture. For this reason, the area immediately adjacent to the kitchen joinery is to be excluded from the calculation of floor area of a boarding room…"
8. He also referenced the Court's decision in Lonergan v Ashfield Municipal Council [2011] NSWLEC 1378 (Lonergan), also referenced in Anglican Community Services where, at [32], Murrell C found: "…in order to physically use the units where the kitchen is directly off the entryway, the width of the kitchen is such that it requires the entryway to be used when one is cooking or preparing food within the kitchen or using the kitchen for any purpose. Therefore,…I am of the opinion that it is a commonsense interpretation of what is secondary legislation that the entranceway be part of the kitchen in these circumstances. It is a relatively small area and it must be utilised in order to be able to use the kitchen and therefore in my assessment is part of the kitchenette. In this regard, I take a commonsense approach to the interpretation of delegation legislation such as in an environmental planning instrument..."
9. However, Mr Dickson referenced an alternate approach applied by O'Neill C in Makki Holdings Pty Ltd v Hurstville City Council [2015] NSWLEC 1153 (Makki Holdings): "19. Mr Seymour submits that in interpreting the meaning of cl 29(2)(f) of SEPP ARH it is appropriate to consider the language used in the text of the provision and then look at the context and purpose of the provision, and not to displace the clear meaning of the text with historical or extrinsic material, consistent with the relevant caselaw on statutory interpretation. He submits that the text of cl 29(2)(f) does not require the exclusion of some ad-hoc dimension and that Mr Gosling, in doing just that, has brought some preconceived ideas to interpreting the provision. According to Mr Seymour, the purpose of the provision is to create a volume of living space of 12 square metres in plan and the area to be excluded from the gross floor area calculation is only that devoted to the kitchen facilities, being the benchtop area in plan. 20. I accept Mr Seymour's submission and I am satisfied that all the boarding rooms each have a minimum gross floor area of 12 square meters. I note that the accommodation size requirement of SEPP ARH, being the 12 square metres for a single lodger's room, is a standard that cannot be used to refuse consent. In other words, if the rooms are 12 square metres or greater, the size of the room cannot be held to be inadequate and used as a reason to dismiss the appeal. Conversely, if the rooms are less than 12 square metres, it becomes a matter of discretion on a merit basis as to whether the size of the room is acceptable. On that basis, I am also satisfied that the size and layout of each of the eight rooms, as shown on exhibit A, are functional for a single lodger and of adequate dimensions."
10. Mr Dickson and Mr Haynes argued that the areas in front of the kitchen benchtops of the 9 rooms in dispute serve a dual function or purpose (being egress and kitchen counter use) in that the disputed area is a movement space which would not accommodate furniture. This dual function does not impede the use of the rooms as a living space and thus should be included in the calculation of the GLA. Mr Haynes further argued that there is no adverse impact on the volume of the living/bedroom space, consistent with the Court's finding in Makki Holdings.
11. Mr March submitted that the design experts approached their analysis on the basis that the nominated areas for single and double rooms provide an appropriate control against which the room sizes ought to be assessed.
12. He submitted that the language of cl 29(2)(f) is clear - the calculation of a boarding room GLA excludes "any area" used for the purposes of private kitchen or bathroom facilities. It does not permit areas to be included in the GLA if they are used for the dual purpose of living space and kitchen.
13. To the contrary, the provision would expressly exclude those areas from the calculation because they are areas used for the purpose of a kitchen. That is, at a minimum, a boarder in a single room should be afforded 12m2 of living space, and to the extent a kitchen is provided, an area to be used for the purpose of a kitchen. Once that is accepted, the finding in Makki Holdings must be rejected. In that case, it was proposed to exclude only "the benchtop area in plan". An area used for a kitchen must include some, however small, standing space in front of the benchtop itself.
14. Further, the reference in Anglican Community Services that the area in front of the kitchen joinery must be devoted to the kitchen and not, for example, be occupied by furniture, was no more than an example to support the (correct) proposition that the provision excludes any area used for the purposes of private kitchen or bathrooms. It was not an invitation to include in the GLA, areas immediately in front of kitchen joinery which were not practically capable of accommodating furniture.
15. However, Ms Hemmings submitted that a "must not refuse consent" control is entirely different to a control prescribing a "minimum room size". There is no "minimum room size" control in the ARH SEPP. Rather, the "must not refuse consent" control in cl 29(2) is intended to be beneficial and facultative.
16. She also rejected that the experts approached their analysis on the basis that the nominated GLA for single and double rooms provides an appropriate control against which the room sizes ought to be assessed. There was no evidence from any expert as to whether the numerical standard in cl 29(2)(f) is an "appropriate control" by which to assess room size as a matter of merit. The experts merely disagree as to whether the "must not refuse consent" control in cl 29(2)(f) for the double rooms is met.
17. She submitted that, even if the Court were to find that the numerical standards for rooms at cl 29(2)(f) are not met, there was no Council evidence that the room sizes proposed were inadequate. Dr Zanardo's evidence was limited to the interpretation of the application of the control whilst Mr Haynes opined that the proposed double rooms are "suitable for occupation by two people". This was on the basis that there is no impact on the volume of the living/bedroom space by the short entry corridor having a dual purpose.
18. Further, Dr Zanardo agreed in cross examination that he did not undertake his own assessment as to whether the 600mm excluded area had dual functions or could be used for dual purposes.
19. She further submitted that the Court is not obliged to follow or apply the decisions of other Commissioners of the Court in Class 1 proceedings. Rather, the Court is obliged to apply the statutory provision in cl 29(2)(f) on its own terms and simply read the words in context. In this regard, O'Neill C's finding in Anglican Community Services is not a limitation which is found in the terms of cl 29(2)(f) itself.

Findings on boarding room sizes

1. In coming to my findings on whether the 9 disputed boarding rooms should be double or single rooms, I have noted that Commissioners of the Court in various decisions have both included and excluded a 600mm deep area in front of the kitchen facilities from the calculated GLA of boarding rooms with such facilities.
2. Clearly the configuration of rooms, and their facilities, vary in each application. I therefore agree with Murrell C in Lonergan that a commonsense approach is required.
3. In my view, that involves a consideration of whether the 9 rooms will be of adequate size to be functionally useable and habitable by 2 lodgers having considered how the kitchen will be used. That is, whether it is reasonable for a 600mm area in front of the kitchen facilities of these rooms to be allocated as part of the kitchen, and therefore excluded from the GLA.
4. The ARH SEPP precludes, at cl 30(1), consent being granted to any boarding rooms which are too large (ie above 25m2 GLA excluding kitchens and bathrooms) but does not similarly preclude consent for any rooms that are too small, providing only that such rooms cannot be refused if at least a minimum size per lodger is met. Therefore, there is ability to grant consent for a double room of less than 16m2 GLA on merit.
5. In my consideration, I accept that there was no specific expert evidence on the amenity of the 9 rooms in dispute. However, the ability to be able to functionally use the kitchens in these rooms was discussed and there was evidence on whether the 600mm was required for sole access to the kitchen facilities, or could have a dual access purpose, and if the rooms were suitable for occupation by two people. The layout and location of the rooms were also in evidence before the Court in the application plans, including Plan DA.122 Revision D which shows the GLA of all boarding rooms, including some rooms where 600mm in front of the kitchen facilities has been excluded from that GLA. However, Plan DA.122 does not include any 600mm exclusion for the 9 rooms in contention.
6. Having considered that Plan and the layout of the 9 rooms in determining the functionality of the kitchen vis a vis the size and layout of the rooms to be occupied by 2 lodgers, and the likely use of the 600mm in front of the kitchen facilities (as shown in plan form), I find as follows.
7. I am satisfied that the area in front of the kitchen facilities in rooms B1.2 and B2.2 forms a dual purpose of serving both the bathroom and kitchen and that there, nevertheless, remains adequate room (ie a width greater than 600mm) to enable reasonable access to the bathroom, whilst also enabling use of the kitchen facilities simultaneously if required. This access area is also separate from the main access (or entryway) into the rooms.
8. Even if 600mm of this dual use access area was excluded from their agreed calculated GLA of 16.2m2 (being the GLA shown on Plan DA.122 Revision D and in Exhibit 9), I consider that both rooms have reasonable dimensions and note that, in addition to that GLA, the lodgers will have access to a private external balcony overlooking the rear yard which contains deep soil landscaping, including canopy trees. Therefore, on merit, I consider there is sufficient basis to support 2 lodgers occupying these rooms whilst still having a functional kitchen area. They can be classified as double rooms accordingly.
9. The situation for the balance of the 7 rooms in contention is different.
10. In essence, they comprise 3 rooms at ground level (G.3, G.4 and G.5), and 2 rooms immediately above on the uppermost 2 levels, of similar configuration (1.5, 1.6, 2.2, and 2.3).
11. In these 7 rooms, the area in front of the kitchen facilities provides not only access to these facilities and the bathroom but is also the main access into and out of each boarding room (ie. their entryway).
12. I therefore consider that it would be difficult for 1 lodger to functionally use the kitchen whilst the other may be either using the bathroom or entering or exiting the room. In that instance, with multiple use of the space, I consider it is reasonable to require sole allocation of a 600mm area in front of the kitchen facilities as comprising part of the kitchen and which should therefore be excluded from the GLA.
13. Whilst this would not preclude the rooms nevertheless being approved for 2 lodgers, on merit, I do not consider this appropriate. As well as the potential conflict in terms of multiple use of the area in front of the kitchen facilities, all of these rooms are only 16m2 (according to the GLA shown on Plan DA.122 Revision D and in Exhibit 9), including this 600m shared space.
14. Further, all adjoin the eastern side boundary, in relatively close proximity to apartments in the RFB at 154 Pacific Highway. Consequently, they do not have any additional external area to utilise and the amenity of the rooms is further reduced by the need for fixed privacy screens and highlight glazing on the windows of these rooms.
15. On this basis, rooms G.3, G.4, G5, 1.5, 1.6, 2.2 and 2.3 are approved as single rooms only, for occupation by a single lodger only.
16. The application is therefore approved with 26 boarding rooms comprising 5 double boarding rooms, 21 single boarding rooms, and a room for the manager. This will result in a maximum of 31 lodgers. The filed conditions of consent have been revised to reflect this outcome.

Conditions of consent

1. The filed conditions of consent in the proceedings were mostly agreed and these conditions are imposed accordingly, along with revised conditions reflecting the approved allocation of single and double rooms.
2. Two conditions sought by the Council were, however, in dispute.
3. Firstly, there is a standard condition sought by the Council that, prior to the commencement of any works, the applicant must obtain a dilapidation report on neighbouring properties.
4. The applicant sought that the property at the rear, being 2A Shirley Road, be excluded from this requirement, arguing that that there is approximately 20m between the rear of the proposed development and the property boundary and that the development on 2A Shirley Road is a number of metres beyond that.
5. However, the Council argued that there is a large amount of excavation proposed, in excess of 6m below natural ground level, with potential for impacts on all adjacent properties including 2A Shirley Road. Further, the applicant had submitted a geotechnical investigation report which stated that it is considered good practice to complete a dilapidation report on any neighbouring property. The purpose of such a document is to protect the builder against any unwarranted claims of damage.
6. I agree with the condition sought by the Council. It is standard practice to require a dilapidation report for all developed neighbouring properties, with such a report protecting both the developer and the neighbours in the case of any purported damage during construction. Further, there is a substantial change in levels between the site and the development on 2A Shirley Road, and extensive excavation proposed. The condition sought by the Council is imposed accordingly.
7. The second condition in dispute was one sought by the Council to require removal or pruning of a street tree on the verge by an experienced tree removal contractor and/or arborist holding public liability insurance amounting to a minimum cover of $20m, with all works undertaken by an experienced arborist or horticulturalist. The Council argued this was a standard condition and could be readily complied with. The applicant considered the required amount of cover was excessive and should be limited to $10m.
8. I have imposed the condition with the minimum insurance cover of $20m sought by the Council. It is a standard condition, and the works are required to be undertaken on Pacific Highway by an experienced contractor or arborist, with an appropriate level of insurance cover required accordingly.

Orders

1. The orders of the Court are as follows: 1. Leave is granted to the applicant to rely upon amended plans. 2. The appeal is upheld. 3. Development Application DA 185/19 seeking demolition of existing structures and construction of a boarding house with associated works at 170 Pacific Highway, Roseville is approved subject to conditions, as outlined in Annexure A. 4. The exhibits are returned except for Exhibits B, C, D and 1.

Acting Commissioner of the Court Annexure A (401963, 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: 29 January 2021