Land and Environment Court

New South Wales

Case Name: Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council

Medium Neutral Citation: [2020] NSWLEC 1487

Hearing Date(s): 21 and 22 July 2020

Date of Orders: 15 October 2020

Decision Date: 15 October 2020

Jurisdiction: Class 1

Before: Espinosa C

Decision:

The Court orders that: (1) Leave is granted to rely on further amended architectural plans (Exhibit C) and Landscape Plans (Exhibit E). (2) The appeal is upheld.(3) Development consent is granted for Development Application No. 37/2019 as amended, seeking development consent for the demolition of 2 existing single storey residential dwellings and construction of a 3 storey plus attic boarding house with 1 basement at 56 and 58 Fifth Avenue, Campsie being Lots A & B in Deposited Plan 367942 subject to conditions of consent marked “A”. (4) The exhibits, except for Exhibits 1, A, B, C and E are returned.

Catchwords: DEVELOPMENT APPEAL – boarding house – character and streetscape – site isolation – amenity of future lodgers – solar access to adjoining private open space – interpretation of a savings provision requiring a determination of a development application as if the plan had not commenced – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012Environmental Planning and Assessment Act 1979Land and Environment Court Act 1979State Environmental Planning Policy 55— Remediation of LandState Environmental Planning Policy (Affordable Rental Housing) 2009State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Cases Cited:

Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302Aldi Foods Pty Limited v Holroyd City Council (2004) 139 LGERA 259; [2004] NSWLEC 253Bandong v Penrith City Council (2014) 205 LGERA 109; [2014] NSWLEC 1226Karavellas v Sutherland Shire Council [2004] NSWLEC 251Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Texts Cited: Canterbury Development Control Plan 2012

Category: Principal judgment

Parties:Ghazi Al Ali Architect Pty Ltd (Applicant)Canterbury Bankstown Council (Respondent)

Representation:

Counsel:S Berveling (Applicant)M Bonanno (Solicitor) (Respondent)Solicitors:Conomos Legal (Applicant)Canterbury Bankstown Council (Respondent)

File Number(s): 2019/116913

Publication Restriction: No

JUDGMENT1 COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of

the Environmental Planning and Assessment Act 1979 (EPA Act) Appeal

against the deemed refusal of a development application No. 37/2019 lodged

with the Respondent on 21 February 2019 seeking development consent for

the demolition of 2 existing single storey residential dwellings and construction

of a 3 storey plus attic boarding house with 1 basement pursuant to State

Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH

SEPP) (the Proposed Development) at 56 and 58 Fifth Avenue, Campsie being

Lots A & B in Deposited Plan 367942 (the Site).

2 Prior to the hearing commencing a series of 8 video recordings taken the

previous day by Garry Chapman, Town Planner for the Applicant and Haroula

Michael, Town Planner for the Respondent, the two town planning expert

witnesses (Town Planning Experts) and authors of the Joint Expert Report

(Joint Report) dated 13 July 2020 and filed 15 July 2020 tendered during the

hearing and marked Exhibit 2 were viewed by the parties and the Court as a

virtual site visit. These video recordings helpfully depicted the Site, the area

immediately across the road, up and down the street and the adjoining Seventh

Ave.

3 The Site is 1,011.58m2 in area and is rectangular in shape with the northern

and southern boundaries being 50.29m, and the east and west boundaries

being 20.115m and is depicted in the aerial photograph below.

4 At the commencement of the hearing, the Applicant sought leave to rely on

further amended architectural and landscape plans. The Respondent did not

oppose this application and leave was granted to rely on these further

amended plans (Further Amended Plans) (marked Exhibit C and Exhibit E

respectively).

5 There is no dispute that the Site is within the R4 High Density Residential Zone

pursuant to the Canterbury Local Environmental Plan 2012 (CLEP 2012) and

that the Proposed Development is permissible.

6 The case is essentially about the compatibility of the Proposed Development

with the character and streetscape of the local area as well as three other

issues regarding site isolation of the adjoining properties, solar access or

overshadowing of adjoining private open space and the amenity of the future

boarding house lodgers in the level 3 rooms. Also in dispute is the legal

argument regarding the relevance of or weight to be given to the amendments

to the CLEP 2012 and to the Canterbury Development Control Plan 2012

(CDCP) after the lodgement of the development application for the Proposed

Development. After providing a summary of the contentions in dispute as

particularised by the Respondent I will deal the relevance of the amendments

to the CLEP 2012 and the CDCP in detail which is a necessary first step before

being able to make any findings regarding the four contentions pressed by the

Respondent.

7 The Respondent’s case is that the Proposed Development should be refused.

The Respondent helpfully prepared and provided a summary of the status of

the contentions raised by the Respondent in the Amended Statement of Facts

and Contentions (SOFAC) filed 1 June 2020 (Exhibit 1) being those

contentions resolved and those contentions that remain in dispute following the

review by the Respondent of the contents of the Joint Report. Following

consideration of the Further Amended Plans and following hearing the

evidence, the outstanding contentions relied on by the Respondent for

determination by the Court are particularised by the Respondent as set out

below however I deal with the first contention regarding insufficient information

first as this was resolved effectively during the hearing.

8 The Respondent was concerned that there was insufficient information

regarding floor to floor heights, limited to the floor to ceiling height, in relation to

room 301 over room 202. The Respondent contends that it remained unclear

whether the wet areas will not require an additional height to carry the

Proposed Development over the building height limit. The Respondent’s

concern was limited during the hearing to the location of the floor waste in

room 301 further narrowing the concerned raised by Ms Michael in the Joint

Report at par [12].

9 The Applicant submits in the written closing submissions at par [11]:

“[11] The Further Amended Plans achieve the required floor height of 2.4m in habitable rooms and 2.2m in non-habitable room such as the bathroom, with the provision of any services extending below the concrete floor slab being above the bathrooms for the level immediately below. [In relation to] room 301, the exit pipe from the toilet first travels through the bathroom cabinetry of room 301 before going through the concrete slab above the bathroom in room 202.

[12] Council’s expert witness, Ms Michael, remained concerned about the location of a floor drain for the bathroom of room 301 but accepted that the drainage for the shower for room 301 could be above the bathroom of room 202 [and agreed t]hat there is no reason why a separate floor drain is required in addition to the shower drain.”

10 I accept that sufficient information has been provided during the hearing

regarding the design of the wet areas and the floor to floor heights and note the

details contained in Drawings A-1205 Rev F and A-1403 Rev B.

11 The Respondent’s summary of the remaining four contentions in dispute

(character, site isolation, amenity of future lodgers and solar access) are

particularised generally in the SOFAC and are summarised below as follows:

(1) The first contention is “Character and Streetscape: The Proposed Development is not compatible with the character of the local area and the desired future character of the area” and is limited to particulars (a) to (c) as follows:

“(a)   Pursuant to clause 30A of the SEPP, the consent authority must take into consideration whether the design of the development is compatible with the character of the local area.

(b)   The visual catchment for the Proposed Development in Fifth Avenue is characterised by generally single dwellings, a three storey aged care facility and a four storey residential flat building; to the south of the site (beyond the intersection of Seventh and Fifth Avenue) are a mix of single dwellings, two and three storey residential flat buildings and some four storey residential flat buildings (three levels of residential and garage at grade, facing the street).

(c)   The design of the Proposed Development is incompatible with the local and the desired future character of the area by:

I.   The failure to provide adequate deep soil landscaping in the front setback (namely, 5m as required by the DCP and CDCP Amendment No. 5);

II.   The failure to provide adequate deep soil areas along the side setbacks (namely, 2m as required by the DCP and Part C7.3.2 of the CDCP Amendment No.5);

III.   Being a four storey form which is inconsistent with the 3 storey form contemplated by the DCP for buildings with a height limit of 11.5m;

IV.   The failure to provide adequate articulation along the front facade as required by part 4.2.3.1 of the DCP and part C7.4.1 of the CDCP Amendment No.5.

The front façade indentations should be moe [sic] wider and deeper to enhance the articulation and provide more visual interest.

V.   The proposed fourth storey is contained within a mansard roof (or similar), which is not permitted under part C4.3.3.2 of DCP. This will

result in a built form that will read more than three storeys and pursuant to the Height of Buildings Map referred to in Clause 4.3(2) of LEP, the maximum permissible height of buildings is 11.5 metres, which interprets to a maximum 3 storey built form under the provisions of part C4.2.2.2 of the DCP.”

(2) The second contention is “Site isolation: The Proposed Development would isolate 52 & 54 Fifth Avenue, Campsie” and is particularised in the SOFAC as follows:

“(a)   C4.2.1.2 ‘Isolated Sites’ in Chapter C4 of CDCP 2012 provides the following relevant objectives and controls:

“Isolation of sites occurs where a property that adjoins a development site would be narrower or smaller than required to be developed under Canterbury LEP. Consequently, the isolated site would be incapable of accommodating the form of redevelopment envisaged by the planning controls.

Objectives

O1    To ensure that land adjoining a development site is not left sterilised or isolated so that it is incapable of being reasonably developed under the applicable controls.

Controls

C1    Neighbouring properties are not to be isolated so that the property will be unable to reasonably accommodate redevelopment.

C2    Undertake negotiations with neighbouring owners to seek amalgamation and enable coordinated redevelopment.

C3    If neighbouring landowners do not agree on terms for amalgamation, provide evidence of reasonable offers, including at least two recent independent valuations.

C4    If the amalgamation of adjoining properties cannot be achieved, demonstrate that the remaining property has reasonable potential for redevelopment by preparing an indicative schematic design that demonstrates:

(a)    A building envelope; and

(b)    A general layout that complies with the current applicable planning controls.

(b)   Pursuant to part C4.2.1.2 of the DCP, 52 and 54 Fifth Avenue will qualify as isolated sites as it will be incapable of being reasonably developed having regard to its R4 zoning and noting, that development on a major road requires a minimum primary frontage of 27m for a three storey residential flat building (as per part C4.3.1.1 of the DCP).

(c)   No evidence has been provided setting out valuations for 52 and 54 Fifth Avenue, or any negotiations that have occurred with these adjoining owners, and as such it has not been demonstrated that reasonable attempts have been made to purchase these properties.

(d)   Schematics have not been provided to demonstrate that a compliant form of development could be carried out on 52 and 54 Fifth Avenue, and in that regard it has not been demonstrated that the

orderly and economic use and development of the sites can be achieved if these sites are developed separately.

(e)   The LEP provides the following objectives for development in the R4 High Density Residential Zone:

“1. Objectives of Zone

• 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.”

(f)   The objectives of the R4 Zone encourage types of development which meet the housing needs of the community within a high density environment. Approval of the Proposed Development which would sterilise 52 and 54 Fifth Avenue that only a dwelling house could be accommodated on each site or as a consolidated allotment the only form of residential development would be a dual occupancy or a boarding house under the CLEP 2012 Amendment No. 16. This would be inconsistent with the objective of the R4 Zone as it would not provide a variety of housing types to provide for the housing needs of the community in a high density environment.”

(3) The third contention is “Amenity for future lodgers” and is limited to particular (g) in the SOFAC which states that:

“(g)   The boarding rooms within the mansard like roof form will not provide the future lodgers an appropriate level of outlook or functional living areas and will result in a poor amenity.”

(4) The final contention is “Solar access and overshadowing” which is limited to the impact on the private open space to the adjoining property at 54 Fifth Avenue inconsistent with Part C4.3.4.1 Control C5 of the CDCP requiring retention of a minimum of 2 hours of sunlight between 9 am and 3 pm on 21 June […] to 50% of the principal private open space and is inconsistent with Part C7.6.1 of the Canterbury Development Control Plan 2012 Amendment No. 5 (CDCP Amendment No. 5) which requires a minimum of 3 hours between 8 am and 4 pm on the 21 June.

Relevance or weight to be given to amendments to CLEP 2012 and CDCP

12 I will now consider the preliminary, and to some extend threshold, legal dispute

regarding the relevance or weight to be given to the amendments to the CLEP

2012 and to the CDCP made after the lodgement of the development

application for the Proposed Development. The findings will inform the balance

of the assessment of the Proposed Development.

13 There was considerable argument regarding the relevance of or weight to be

given to the requirements and controls contained in draft or amended planning

instruments and draft or amended development control plans.

14 The Applicant’s case is that in accordance with the decision in Alamdo

Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 (Alamdo)

neither the CLEP 2012 nor the CDCP amendments relating to boarding houses

are relevant. The Applicant argues that the Proposed Development should be

approved because the Further Amended Plans (Exhibits C and E) address and

resolve the contentions raised by the Respondent.

15 The Respondent carefully details in the SOFAC the amendment history of the

CLEP 2012 and the CDCP which took place after the lodgement of the

development application for the Proposed Development. The development

application for the Proposed Development was lodged with the Respondent

council on 21 February 2019.

16 The Respondent submits that the amendments should be given the weight of a

draft instrument in accordance with the decision in Terrace Tower Holdings Pty

Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA

289 (Terrace Tower) and s 4.15(1)(a)(ii) of the EPA Act. The Applicant does

not agree with this submission and instead submits that the effect of both

savings provisions is that, given that the development application the subject of

this appeal has not been finally determined before the commencement of those

instruments, the development application must be determined as if [those

instruments] had not commenced.

17 I am assisted by the submission of the Respondent that as the CLEP 2012

amendments as to site width and area are satisfied in the Proposed

Development, “in this matter the LEP amendments are probably moot.”

Accordingly, I will only focus on the CDCP and in particular whether the

amended provisions of the CDCP, in particular the controls in Chapter 7 –

Boarding Houses, apply as controls relevant to the merit assessment of the

Proposed Development or, as the Respondent submits in the alternative, the

amended provisions are relevant only in relation to assessing the desired

future character of the local area.

18 The SOFAC provides the following succinct summary of the CDCP

Amendment No. 5 at par [13]:

“(a) On 12 December 2017, the Respondent resolved to introduce controls into the DCP for boarding houses that generally accord with those in the Bankstown Development Control Plan.

(b) The Draft DCP seeks to amend Chapter C7 – Boarding Houses to introduce controls relating to the built form of development for the purpose of boarding houses.

(c) The Draft DCP was placed on exhibition together with the Draft LEP from 11 December 2018 until 1 February 2019.

(d) On 26 March 2019, the Council resolved to adopt the Draft DCP subject to it coming into force on the date the Draft LEP is gazetted.

(e) CDCP 2012 Amendment 5 commenced on 20 September 2019 and introduced Part C7 Boarding Houses.”

19 The Respondent contends that CDCP Amendment No. 5 (which introduced

Chapter C7 – Boarding Houses to the CDCP) should be given appropriate

weight to the assessment and determination of the Proposed Development in

light of the wording of the savings provision clause A1.9 in the CDCP

Amendment No. 5 as follows:

“A1.9 Savings Provision If an application has been made before the commencement of the DCP in relation to land to which the DCP applies, and the application has not been finally determined before that commencement, the application must be determined as if the DCP had not commenced.”

20 The Applicant submits that the CDCP Amendment No. 5 has no legal status

and relies on the Alamdo decision and referred the Court to [19]-[22] of that

judgment where, Commissioner Dixon (as she then was) held that:

“It also follows that LEP 2012 is not a relevant consideration under s. 79C(1)(a)(i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s. 79C(1)(e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision of cl. 1.8A that removes it from consideration.”

21 As the Respondent relies on the Terrace Tower decision, it is appropriate to

note that in Alamdo, Commissioner Dixon considered the Terrace Tower

decision at [4]-[5] and as this consideration is relevant to the savings provision

of the CDCP Amendment No. 5 I include the paragraphs in full as follows:

“[4] The effect of this type of saving provision is dealt with in the applicant’s written submission (AWS) dated 18 October 2012 at paragraphs 4 – 7. It states:

‘In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129LGERA 195, the Court of Appeal authoritative construed a savings clause to this effect. The savings clause in the Sutherland 2000 LEP provided that, despite the repeal of the 1993 LEP, that LEP applied to pending development applications "as if this Plan had been exhibited but had not been made": [35]. That is, on all fours with proposed cl.1.8A in the proposed 2012 LEP. This kind of savings provision invited consideration of whether the draft Sutherland LEP (as it was then known) was certain and imminent. That question, the Court of Appeal held, was answered by the making of the draft LEP. Once it was certain and imminent, the Court moved to consider whether the proposed development would undermine the objectives of the new LEP: [6], [7], [50]-[57]. The Court of Appeal anchored its decision in the second limb of the savings provision, which has been quoted above: [51] "it remained a draft instrument as far as the proposal was concerned, by virtue of the command in the transitional provision"; "the argument was that none of the LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision or the stream of case law forming the background against which its terms are properly to be construed. The transitional provision requires the LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as 'made'. In other words, the decision was driven by the words in the savings clause that specifically addressed the position of the later LEP: "the application must be determined as if this Plan had been exhibited but had not commenced". That was the direction to which the Court of Appeal referred.’

[5] The applicant submits however, that the above position must be contrasted with the savings provision expressed in cl1.8A of LEP 2012, which states:

’If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced’ (Emphasis added)”

22 On that basis, the Applicant submits that the Court should find that the CDCP

Amendment No. 5 has no legal status for the present proceedings and is

removed from consideration on the ground of public interest.

23 Relevantly, the Respondent disagrees with the Applicant and contends further

and in the alternative, that much of the Council’s argument is around clause

30A of the ARH SEPP which relates to the contention character and

streetscape and poses the question of “what is compatible with the character of

the area?”. The Respondent says that the controls in the CLEP 2012 and the

CDCP provide the answer, in particular:

“to the extent that any future development will be subject to the DCP Amendment 5 therefore the controls which go to compatibility, such as front

and side setbacks, landscaping, roof forms and the like are in the DCP as amended.”

24 The parties acknowledge that the Town Planning Experts refer to Canterbury

Local Environmental Plan Amendment No. 16 and CDCP Amendment No. 5 in

the Joint Report as though they are relevant.

25 I accept that the planning instrument amendments are moot and the Proposed

Development otherwise satisfies the requirements of minimum lot size and site

width and I am for that practical reason only required to deal with the issue of

whether any of the controls of the CDCP 2012 Amendment No. 5 are to be

given any weight in relation to assessing the Proposed Development.

26 The Commissioner in Alamdo held at [19]-[21] as follows:

“[19] I accept the applicant's interpretation of the savings provision in cl1.8A of LEP 2012 for the reasons outlined above.

[20] The transitional provision in cl1.8A requires the LEP 2012 to be taken into consideration under s 79C(I) of the Act as if the Plan had been made but not commenced. The words in the savings clause under review in this case are different to those considered by the Court of Appeal in Terrace Towers. Therefore, the case at hand can be distinguished from reasoning of the Court of Appeal in Terrace Towers. I accept the applicant's submission that there must have been a purpose in the drafter of the clause removing the words "had been exhibited" from the final Plan as made. If I accept the Council's interpretation of the clause then it is irrelevant that the words "had been exhibited" were removed from the final version of cl1.8A.

[21] The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.”

27 The Respondent submits that the CDCP Amendment No. 5 controls are a part

of a suite of measures which the Council has introduced to properly deal with

boarding houses and as such there is considerable public interest concern in

ensuring that draft instruments are given significant role to play in assessment

and the Respondent relied on the decision of Aldi Foods Pty Limited v Holroyd

City Council (2004) 139 LGERA 259; [2004] NSWLEC 253 (Aldi).

28 The Applicant respectfully submits in its written submissions at pars [6]-[8] that:

“[6] The respondent’s reference to Aldi Foods Pty Limited v Holroyd City Council (2004)139 LGERA 259; [2004] NSWLEC 253 is misplaced. Its factual matrix is that a draft LEP had been placed on public exhibition at the same time as a draft DCP which proposed a master plan which indicated amongst other things, a new street layout, drainage arrangements building footprints and heights of buildings.( Aldi Foods Pty Limited v Holroyd City Council op. cit at [10], p. 262.) The question before the Court, during the course of a Class 1 Appeal concerning a development application, was whether the applicant be given leave to rely on an amended proposal that purports to respond to the joint opinion of experts that it is appropriate to develop the subject land pursuant to the draft LEP and draft DCP. (Aldi Foods Pty Limited v Holroyd City Council op. cit at [5], p. 261.) At paragraph [42] Talbot J held:

42 The most palpable inconsistency, however, is between the proposal and the long-term planning vision of the Neil Street Precinct Master Plan contained in the draft DCP. For this site the Master Plan shows the footprint of an eight-storey building following the line of a new road and swale. This is about as different from a single-story supermarket as it is possible to be. While a draft DCP is not among the matters to be considered under s. 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW), in this case it is an adjunct to the draft LEP and it is appropriate to take into account as a matter of public interest.

[7] Aldi can be readily distinguished factually from the current appeal, which does not involve a draft LEP with an associated draft DCP proposing a master plan. Furthermore, Aldi concerns only the weight to be attributed to the draft DCP.

[8] Whilst there are recent references to the Aldi judgment (Brown v Waverley Council [2018] NSWLEC 1660 at [31] and [61]; ACN 603 361 940 Pty Limited v Northern Beaches Council [2019] NSWLEC 1012 at [51]-[53]), they did not follow Aldi.”

29 I note that the Town Planning Experts both defer to the CDCP Amendment No.

5 provisions for the purpose of determining the desired future character in the

Joint Report. Ms Michael in the Joint Report at par [32] states that:

“[32] […] Part C7 Boarding Houses (Amendment No 5) of the CDCP 2012 will assist in informing the desired future character as set out in Clause 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009.”

30 Mr Chapman in the Joint Report at par [19] also relies on the standards in

CDCP Amendment No. 5 in order to form the opinion that the Proposed

Development is compatible with the desired future character of development in

the R4 High Density Residential zone.

31 During the hearing the Town Planning Experts were asked about the

applicability of the CDCP amendments. Ms Michael confirmed that standards

and controls in the CDCP Amendment No. 5 “helps character definition and

future character assessment” and Mr Chapman confirmed that it “helps guide

desired future character”.

32 Clause 30A of the ARH SEPP provides simply that:

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.

33 I accept the Applicant’s submissions and find that Alamdo sets out the relevant

principles as to how CDCP Amendment No. 5 should be considered in the

present case and accept that CDCP Amendment No. 5 has no legal status for

the present proceedings and are removed from consideration on the ground of

public interest being the merit assessment as required by s 4.15 of the EPA

Act. This finding is subject to and limited by the fact that I accept the

Respondent’s argument in the alternative, that the controls and development

standards in CDCP Amendment No. 5 do have some work to do relevant and

limited to the consideration of determining the desired future character of the

local area for the purpose of consideration of compatibility pursuant to cl 30A of

the ARH SEPP upon which the “character contention” is based.

Evidence and findings regarding Contentions

34 I will now consider the evidence during the hearing and address each of the

four remaining contentions in order below.

Character and streetscape: Is the proposed boarding house compatible with the character of the local area?

35 The Respondent submits that this case is essentially about character and that

this contention is the heart of the Council’s objection and in written closing

submissions states unequivocally that:

“this case is about character in that the Proposed Development is not compatible with the character of the local area and the desired future character of the area.”

36 The Respondent gives the following reasons for the proposition that the

Proposed Development is not compatible with the character of the local area

as follows:

(1) The desired future character of the local area is guided and defined by the CDCP 2012 Amendment No. 5 and there are a number of sub-categories of controls being:

(a) Height which is an objective assessment and the Proposed Development complies with these controls;

(b) Setbacks which is an objective assessment and the Proposed Development does not comply;

(c) Landscaping which is a subjective assessment and the Proposed Development does not comply. The Respondent stresses that the importance that attaches to landscaping to establish compatibility cannot be underestimated and refers to [29] of Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 1919 (Project Venture);

(d) Whether the Proposed Development is visually compatible which is also a subjective assessment and the Proposed Development has a mansard style roof, being a roof form which is steeper than the usual pitched roof in the area as described by Ms Michael at par [26] in the Joint Report.

37 In order to define the concept of compatibility, the parties referred the Court to

the planning principle of compatibility in urban environment which has been

established by the decision of Senior Commissioner Roseth in Project Venture.

Senior Commissioner Roseth concluded that being compatible is different from

being identical and the Court has accepted that developments can exist

together in harmony without having the same density, scale or appearance.

38 The issue to be determined in this case is one of compatibility and not

sameness and in Project Venture the Senior Commissioner noted (at [22]) that:

“the most apposite meaning [of compatible] in an urban setting 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 is the difference in these tributes increases, harmony is harder to achieve.”

39 It is submitted by the Applicant that the design of the Proposed Development is

compatible with the character of the local area, both present and the desired

future character pursuant to its zoning. I have read the summary and

assessment of cl 30A Character of local area detailed in the Statement of

Environmental Effects prepared by Morphology Design Associates and filed 15

April 2020 at pages 12 and 13 (part of Exhibit A). The Town Planning Experts

also address compatibility with the character of the local area in the Joint

Report from pages 5 to 11 (Exhibit 2).

40 Under cross examination both Town Planning Experts stated that they

undertook an assessment of character against the cl 30A objectives of the

zone and visual assessment and controls. Neither Expert undertook an

assessment of character against the Project Venture criteria.

41 The concern as described by Ms Michael in the Joint Report and in her

answers during the hearing, is that the mansard style roof results in the

Proposed Development reading as a four storey form. Ms Michael gave

evidence that as some elements of the dorma windows can be seen from Fifth

Avenue the building is therefore, in her opinion, read as a 4 storey building.

42 Mr Chapman agreed in cross examination that there are no other examples of

the roof form as proposed by the Proposed Development in the visual

catchment however he disagreed that the roof form is a mansard style roof and

that it was his opinion that the Proposed Development would read as a three

storey building. I note and accept Mr Chapman’s comment in oral evidence that

a significant factor identifying the 3 storey form of the building is the eave

overhang.

43 The Applicant addressed the Respondent’s contention as to visual catchment

and the application of the planning principle regarding compatibility as set out

in Project Venture by noting the relevance of the R4 High Density Residential

zoning of the Site and within the local area which ‘envisages a change of

character, in which case compatibility with the future character is more

appropriate than with the existing’ (Project Venture at [23]). The Applicant

submits that:

“Uneven timing of redevelopment would cause the character of a locality to provide for some time uneven redevelopment in accordance with the R4 Zoning. Compatible is not sameness – capable of existing together in harmony (Project Venture at [22])”

44 In relation to visual catchment and I note that the visual catchment of the

Proposed Development is seen in the videos which replaced the site inspection

(refer to par [2]). The following could be seen in the locality:

(a) a number of single dwellings;

(b) the three-storey aged care facility immediately across the road from the Site;

(c) the four-storey residential flat building to the immediate north of the aged care facility; and

(d) a number of 2, 3 and 4 storey residential flat buildings in the local area.

45 The Applicant submits that the form of the building (noting its compliance with

the building height and floor space ratio development standards) is such as

would be expected within the locality with its R4 High Density zone and

submits that:

“The form of the roof is such that the buildings will be read as a 3 storey building. The argument about whether the roof form is or is not a mansard roof (or similar) adds little to the question of compatibility within the locality. The articulation along the front façade, together with its finishes and materials, are such that it cannot be suggested that the proposal is or would be, not compatible with the character (present or desired future) of the local area.”

46 The Respondent suggested in opening that the timing to date of redevelopment

emphasises the importance of the existing character. However, I accept that

uneven timing of redevelopment would cause the character of the locality to

provide for some time uneven redevelopment in accordance with the R4 High

Density zoning, as can be seen already by the redevelopment at 77-87 Fifth

Avenue with the four-storey residential flat building.

47 I find that whether the Proposed Development reads as a four storey or a three

storey form is not determinative of compatibility however I find that on balance

the roof form of the Proposed Development is not incompatible with visual

catchment of the local area for the reasons given by Mr Chapman.

48 Landscaping is another factor raised by the Respondent to inform desired

future character and in particular the deep soil landscaping of the Proposed

Development.

49 The Proposed Development provides the required deep soil landscaping in the

front setback to a depth of 5m from the front boundary. The Applicant submits

that:

“the complaint about the impact on the deep soil landscaping from (i) the path near the southern boundary being an emergency exit; (ii) the main entrance pedestrian path; (iii) the driveway dictated by the location of the heritage street trees; and (iv) the traffic signals and fire hydrant in the North Eastern corner of the site, cannot be sustained as those items are necessary items to be included within the front of a proposed development.”

50 The Applicant submits that the purported inadequacy of deep soil areas along

the side setbacks is resolved for this contention (that is in so far as it is relevant

to the consideration of compatibility with the local character and streetscape)

by the substantial landscaping proposed along the side setbacks in any event.

51 Mr Chapman acknowledges that the deep soil control is not strictly achieved

but expressed his opinion that the planter boxes achieve the same outcome

allowing 2.5m high Lilli Pilli, 4m high Myrtle and 2.5m to 5m high Tree Fern

planting along the Northern and Southern side boundaries and he referred to

the dimensions of the planter boxes specified in Drawing A-1202 Rev D. Ms

Michael did not agree that planter boxes achieve the deep soil planting as

required by the CDCP 2012 Amendment No. 5 however she did not dispute the

planting outcome as described by Mr Chapman and that in relation to how the

planting affects compatibility with the character of the local area she agreed

that the landscape setting would be visually compatible.

52 I accept that the SEE accurately summarises the consideration for the Court as

follows:

“There is limited local reference in terms of a desired architectural styles as the area is currently in transition. […] The proposed development provides architectural articulated facades and passive surveillance to Fifth Avenue. A combination of material is proposed for this development in addition to play of light and colour due to the massing and architectural articulation. The proposed development is expected to sit in harmony with the surrounding future developments.”

53 I am satisfied that compatibility with the character of the local area has been

considered in detail by the Experts and in the submissions of the parties. The

SEE, Expert Report and written submissions all examine the various aspects of

Proposed Development as compared with the existing character. I have also

referred to the videos shown prior to the commencement of the hearing and the

photographs contained within the Joint Report and I have considered the

desired future character and informed by the controls and standards introduced

by CDCP 2012 Amendment No. 5. In accordance with the criteria in Project

Venture I am satisfied that visual compatibility has been considered, and I find

that the Proposed Development is on balance compatible with the character of

the local area.

54 I find that the Proposed Development is not required to strictly comply with all

the controls and development standards in the CDCP Amendment No. 5 in

order for the Proposed Development to be able to be compatible with the

character of the local area. I form this opinion for the reasons submitted by the

Respondent, that the CDCP Amendment No. 5 has some work to do in that it

guides the consideration of what the desired future character of the local area. I

am satisfied that the Proposed Development has taken into account and is

sufficiently consistent with the relevant provisions of CDCP Amendment No. 5

in order to be compatible with the desired future character of the local area.

Has the issue of potential site isolation been adequately addressed?

55 The particulars to the contention for site isolation in the SOFAC are limited to

C4.2.1.2 titled “Isolated Sites” and is within C4.2 titled “SEPP 65 Applications”.

It is relevant to note that State Environmental Planning Policy No 65—Design

Quality of Residential Apartment Development (SEPP 65) does not apply to

boarding house development and that C4.2.1.2 is not applicable to the

assessment of this Proposed Development.

56 The Applicant submits that the contentions define the topics in dispute between

the parties and that in the present case, given that the particulars of the

contention do not apply, the contention, according to the Applicant becomes

not relevant in the present case.

57 The Applicant notes that although chapter C7, (C7.2.2) of the CDCP 2012

deals with isolated sites, for reasons set out above (refer par [33]), it too has no

legal status in the present case and it is also not referred to within the

particulars to the contention.

58 If the Applicant is incorrect in this submission, I address this contention briefly

and consider the Respondent’s submissions as I accept that the question as to

whether the Proposed Development might isolate 52 and 54 Fifth Avenue is a

relevant matter for consideration by reason of s 4.15(a)(b) of the EPA Act

which requires the consent authority to consider “the likely impacts of the

development, including [...] social and economic impacts in the locality”.

59 In relation to site isolation the Respondent concedes the steps taken by the

Applicant to address site isolation as detailed in Appendix 7 of the Joint Report

(Exhibit 2) however the Respondent argues that the planning principle in

Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas),

requires a review of the following:

(1) what negotiations took place in answer the question: Is amalgamation of the sites feasible? and

(2) can you do something with the remaindered site? Or putting it another way, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?

60 The SOFAC additionally particularises and relies on the objectives on the R4

High Density Residential zone in the CLEP 2012 contending that:

“(f) The objectives of the R4 Zone encourage types of development which meet the housing needs of the community within a high density environment. Approval of the Proposed Development which would sterilise 52 and 54 Fifth Avenue that only a dwelling house could be accommodated on each site or as a consolidated allotment the only form of residential development would be a dual occupancy or a boarding house under the CLEP 2012 Amendment No. 16. This would be inconsistent with the objective of the R4 Zone as it would not provide a variety of housing types to provide for the housing needs of the community in a high density environment.”

61 In the absence of controls or development standards it is appropriate to refer to

the planning principle in Karavellas which applies to the isolation of site by

redevelopment of adjacent site(s) and the role of Court in assessing

consolidation negotiations. The Respondent submits that whether the court

refers to the CDCP provisions or the planning principle ‘we come to much the

same conclusion.’

62 The Town Planning Experts do not agree in relation to this issue and I note that

in the Joint Report from pages 11 to 14 they respectively address their differing

views.

63 I firstly note that the permissible uses of the adjacent sites at 52 and 54 Fifth

Avenue Campsie are various and are set out in the R4 High Density zone Land

Use Table in CLEP 2012 as follows:

3   Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Business premises; Car parks; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Home-based child care; Home businesses; Hostels; Multi dwelling housing; Neighbourhood shops; Office premises;

Oyster aquaculture; Places of public worship; Recreation areas; Residential flat buildings; Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Serviced apartments; Shop top housing; Shops

64 The first question is whether or not there will be an isolated site as a result of

this Proposed Development. The Applicant submits that:

“Collectively, 52 and 54 Fifth Avenue are capable of accommodating many of the forms of redevelopment envisaged by the LEP in the R4 high density residential zone (see land use table Exhibit 4 page 13. With respect to the 27 m frontage width (which is limited to residential flat buildings on a major road), the objectives to that control may well be able to be achieved despite the site of 52 and 54 Fifth Avenue having a width of 20 m rather than 27 m. It is questionable whether the classification of Fifth Avenue as a major road affects the impact of a residential flat building, and the compliance with the objectives in C4.3.1.1 (page 330 Exhibit 4). Section 4.15(3A) of the Environmental Planning and Assessment Act 1979 is noted.”

65 Ultimately, the Respondent’s concerns regarding this issue was summarised

by Ms Michael during the hearing where she states that she believes where

two valuations should have been obtained only one was obtained by the

Applicant, that where a negotiation should have taken place the Applicant has

provided a single offer and that rather than schematics and layout for 52 and

54 Fifth Ave only an indicative concept plan has been provided by the

Applicant.

66 Ms Michael was asked by the Applicant what more could the Applicant have

done if no response was received to the offer made? Her answer is that the

recipients of the offer were given 14 days to make a life changing decision and

that she did not feel that enough attempts were made.

67 It was submitted by the Applicant that the issue of isolated site is such as not to

warrant refusal of the Proposed Development. I accept that submission.

68 In the present case I accept that the requirements set out in Karavellas have

been satisfied by the following:

(1) negotiations between the owners of the subject site and 54 Fifth Avenue are in evidence. These include an offer sent by registered post to the owner of 54 Fifth Avenue based on a recent independent valuation. (refer Appendix 7 to Joint Report Exhibit 2). I am satisfied that a reasonable offer has been made in the context of the independent valuation being increased by 8% as the value of the offer made by the Applicant and that amalgamation is not feasible resulting from no response as at the date of the hearing being received by the Applicant to its offer (noting the offer was dated 23 April 2020).

(2) A conceptual plan for the isolated site was prepared and tendered to the Court, (refer to Site Amalgamation 52-54 Fifth Ave Drawing A 0050 Exhibit C) noting that this is a suitable concept proposal in R4 High Density although, similarly noting that residential flat buildings and multi-dwelling would be subject to the control of minimum 27m street frontage, thus, limiting the range of permissible options as per the land use table to potentially exclude residential flat buildings and mutli dwelling housing subject to SEPP 65. I am satisfied that notwithstanding that amalgamation might be desirable and likely to achieve a better planning outcome, the orderly and economic use and development of the separate sites can be achieved.

69 I find that the issue of site isolation has been adequately addressed for these

reasons above.

Amenity for future lodgers

70 During the hearing it was established that the remaining outstanding aspect of

this contention pressed by the Respondent is limited to particular (g) as

particularised in the SOFAC which states that:

“(g) The boarding rooms within the mansard like roof form will not provide the future lodgers an appropriate level of outlook or functional living areas and will result in a poor amenity.”

71 The size of the proposed boarding rooms satisfies the requirements set out in

cl 29(2)(f) of ARH SEPP and the Town Planning Experts in the Joint Report

agree that the facilities in the rooms’ kitchens include a sink, cooktop,

microwave and fridge. The Respondent concedes that the design of the rooms

meets the minimum requirement.

72 The Respondent submits that this contention falls into 2 categories. The first

category is the Respondent’s submission that the definition of dwelling and

attic in the CLEP 2012 conspire to make the proposed six roof top dwellings

prohibited. I do not accept this submission firstly because it is not included or

particularised in the SOFAC and was only raised during submissions.

Secondly, the definition of the word “attic” in the CLEP 2012 is noted however,

the word does not perform any operative function in the controls that relate to

the assessment of boarding houses and the amenity of lodgers.

73 The second category of the Respondent’s contention is that the rooms’ outlook

or functional living areas will result in a poor amenity and the Respondent

refers the Court to Drawing A-1205 Rev F.

74 During cross examination of the Town Planning Experts, questions were asked

of them regarding the positioning of the windows and whether this positioning

created an inviting space and whether the natural lighting was sufficient.

75 Each room on level 3 was explored by the Respondent in cross examination

during the hearing regarding the layout, lookout and natural light for each room.

The width of the windows was confirmed to be 2.5m. Ms Michael used phrases

like ‘not the best amenity’, ‘not ideal amenity’ and ‘not ideal layout’ whereas Mr

Chapman gave his opinion that the rooms on level 3 provide the future lodgers

an appropriate level of outlook and functional living areas.

76 I find that as the rooms are each compliant with the ARH SEPP, I accept Mr

Chapman’s opinion that the rooms on level 3 provide the future lodgers an

appropriate level of outlook and functional living areas. I find that the amenity

for future lodgers in relation to appropriate levels of outlook and functional

living areas is satisfactory and appropriate.

Solar access and impact on adjoining neighbouring private open space

77 As mentioned earlier, the solar access and overshadowing contention is limited

to the impact of the Proposed Development on the private open space to the

adjoining property at 54 Fifth Avenue which is said to be inconsistent with

(1) Part C4.3.4.1 Control C5 of the CDCP requiring retention of a minimum of 2 hours of sunlight between 9 am and 3 pm on 21 June […] to 50% of the principal private open space; and

(2) Part C7.6.1 of the CDCP Amendment No. 5 which requires a minimum of 3 hours between 8 am and 4 pm on the 21 June.

78 For reasons provided above, I am not required to assess compliance with the

provisions of Part C7.6.1 of the CDCP which leaves only the consideration of

whether 50% of the private open space of the adjoining property at 54 Fifth

Avenue receives sunlight for 2 hours between 9 am and 3 pm on 21 June to

the extent that PartC4.3.4.1 may be applicable to the Proposed Development

(noting that Part C4 of the CDCP provides controls for Residential Flat

Buildings).

79 The Joint Report provides at par [62] that the two planning experts have

reviewed the shadow diagram – 3D (Existing building (Plan No. A-2106) and

they agree that the ground floor windows on the north elevation of the dwelling

house at 54 Fifth Avenue are currently overshadowed between 8 am and 4 pm

at mid-winter.

80 The Applicant submits that there will be no further adverse impact. The

Respondent says that the test is ‘no worse off’. The Respondent submits that

the neighbour’s yard at 54 Fifth Avenue Campsie will only receive adequate

sun between two and three in the afternoon and that the test of “should not be

worse” is not met.

81 The Applicant submits that the Proposed Development retains an appropriate

level of solar access to the property at 54 Fifth Avenue, especially taking into

consideration the east west orientation of the subdivision and the R4 High

Density Residential zone and relies on the evidence of Mr Chapman.

82 Mr Chapman states that the plan at Appendix 11 of the Joint Expert Report

(namely the Shadow Diagram Drawings A-2103 Issue D, A-2104 Issue B and

A-2105 Issue B) shows the solar access retained to the adjoining land. At par

[63] in the Joint Report Mr Chapman explains that this plan:

“shows the solar access retained to the backyard/private open space of 54 Fifth Avenue as 12 noon – 36.6%, 1pm – 43.6%, 2 pm – 50% and 3 pm – 52.4%. It is noted that the proposal varies the control at Part C7.6.1 of the DCP however, reasonable solar access is retained given the east-west orientation of the site and the R4 – High Density Residential zone. Further, the development proposal meets the height, FSR, side and rear setback controls.”

83 During the hearing Mr Chapman was questioned about solar access and

expanded his evidence to state that from 12 noon to 4 pm, the total area of

backyard of number 54 Fifth Avenue being 270m2, an area of 100.97m2

receives sun being 36.68% of the private open space. The argument relied on

by Mr Chapman for the Applicant is that although less than half of the private

open space receives sun, the mere fact that the backyard is so large the actual

area of the yard which receives sun is ample for amenity when more than

100m2 will retain solar access.

84 The Respondent submitted that and relies on Ms Michael’s evidence which

looks to Part C7.6.1 of the CDCP Amendment No. 5. During the hearing Ms

Michael agreed that Part C7 of the CDCP Amendment No. 5 is not relevant in

the present but in her opinion is used as a guide together with Part C4.

85 I find that Mr Chapman’s evidence is preferred on balance as the controls

relied on by Ms Michael are not relevant to the Proposed Development and

given the east west orientation of the Site, the solar access retained in the

private open space of the adjoining land is adequate.

Jurisdictional Considerations

86 There are a number of relevant jurisdictional prerequisites that require

consideration.

87 Firstly it is relevant to note that both of the registered owners of the Site, 56

Fifth Avenue Pty Ltd ACN 613 213 246 and 58 Fifth Avenue Pty Ltd ACN 613

199 394 provided owner’s consent by the conclusion of the hearing.

88 Secondly, s 4.15(1)(d) of the EPA Act requires the consent authority to

consider any submissions made. The SOFAC details the fact that the

Proposed Development was notified from 5 March 2019 to 3 April 2019 and

eleven (11) submissions were received by the Respondent and I note that

these submissions are included in the Supplementary Bundle filed 20 July

2020 (Exhibit 5). I have considered the concerns raised in the submissions

most of which are either addressed in the SOFAC or addressed by the Further

Amended Plans.

89 Finally, the BASIX Certificate number: 995415M issued Sunday, 17 February

2019 and filed on 15 April 2019 as required by the State Environmental

Planning Policy (Building Sustainability Index: BASIX) 2004 (Exhibit A) was

referred to during the hearing and I accept the Applicant’s advice that a new

certificate is not required and that this Basix certificate in evidence can relate to

the new plans.

Decision

90 I find that it is appropriate for the appeal to be upheld and development

consent to be approved for the Proposed Development for the following

reasons:

(1) the Proposed Development will be compatible with character of the local area (refer pars [52]-[54]);

(2) site isolation has been adequately considered and addressed by the Applicant (refer par [68]);

(3) the amenity of the future lodgers of the rooms on level 3 of the boarding house will have appropriate level of outlook and functional living areas (refer par [76]); and

(4) the solar access retained to the private open space of the adjoining property is adequate (refer par [85]).

Orders

91 The orders of the Court are as follows:

(1) Leave is granted to rely on further amended architectural plans (Exhibit C) and Landscape Plans (Exhibit E).

(2) The appeal is upheld.

(3) Development consent is granted for Development Application No. 37/2019 as amended, seeking development consent for the demolition of 2 existing single storey residential dwellings and construction of a 3 storey plus attic boarding house with 1 basement at 56 and 58 Fifth Avenue, Campsie being Lots A & B in Deposited Plan 367942 subject to conditions of consent marked “A”.

(4) The exhibits, except for Exhibits 1, A, B, C and E are returned.

……………………….E EspinosaCommissioner of the Court

Annexure A (358887, pdf)

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