41 Robey Pty Ltd v Randwick City Council [2020] NSWLEC 1541

Catchwords: DEVELOPMENT APPLICATION — boarding house development – compatibility with the character of the local area – side setbacks – internal amenity – amenity impacts on adjoining development – impact on the heritage significance of adjoining heritage items Land and Environment Court New South Wales Medium Neutral Citation: 41 Robey Pty Ltd v Randwick City Council [2020] NSWLEC 1541 Hearing dates: 29-30 October 2020 Date of orders: 9 November 2020 Decision date: 09 November 2020 Jurisdiction: Class 1 Before: O’Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 382/2019 for the demolition of existing structures and construction of a boarding house development across two buildings, is approved, subject to the conditions of consent at Annexure A. (3) The exhibits, other than exhibits 1, 6, A, B, C and D, are returned. Catchwords: DEVELOPMENT APPLICATION — boarding house development – compatibility with the character of the local area – side setbacks – internal amenity – amenity impacts on adjoining development – impact on the heritage significance of adjoining heritage items Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 1998 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development Cases Cited: Project Venture Developments v Pittwater Council ( 2005) 141 LGERA 80; [2005] NSWLEC 191 Texts Cited: Building Code of Australia Randwick Development Control Plan 2013 Category: Principal judgment Parties: 41 Robey Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: C McEwen SC (Applicant) A Hudson (Solicitor) (Respondent) Solicitors: Mills Oakley Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/271126 Publication restriction: Nil Judgment COMMISSIONER : This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 382/2019 for the demolition of existing structures and the construction of a boarding house development across two buildings (the proposal) at 41 Robey Street, Maroubra (the site) by Randwick City Council (the Council). The appeal was subject to conciliation on 17 April 2020 , in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 27 October 2020 for the applicant to amend the application by relying on amended architectural and landscape plans (Ex C) . Issues The Council ’ s contentions can be summarised as: The design of the proposal is not compatible with the character of the local area . The proposal is inconsistent with the objectives of the R3 Medium Density Residential zone . The side setbacks are inadequate . The proposal does not provide adequate residential amenity for occupants, because the boarding rooms are too narrow and the ceiling heights are less than 2.7m . The proposal results in adverse amenity impacts on the adjoining propert y at 43 Robey Street , due to overshadowing . The proposal will have a detrimental impact on the setting of the adjoining heritage item. The proposal will establish an undesirable precedent in the locality. The site and its context The site is legally described as Lot 1 in Deposited Plan 302597. The site is on the eastern side of Robey Street, south of Wise Street, and runs between Robey Street and Ferguson Street to the east. The site is bounded on the northern side by the shared rear boundaries of 7 – 17 Wise Street. 11A and 11 Wise Street are semi-detached dwellings. The site has a frontage to Robey Street of 11.278m and a northern and southern boundary of 60.07m, with a total site area of 756.4sqm. The site is occupied by a single storey dwelling with a detached garage and vehicular access from Ferguson Street. The site falls towards Robey Street. The proposal The proposal is a boarding house development containing a total of 2 6 boarding rooms, including one manager ’ s room, 21 double boarding rooms, 2 double accessible boarding rooms and 2 single boarding rooms. The proposal includes one communal living area on the ground floor opening onto a communal courtyard and basement parking for 8 cars including one accessible parking space and one car share parking space . The proposal can accommodate a maximum of 50 people including the manager . The proposal requires excavation to a maximum depth of 6 m at the eastern end of the basement carpark . The western building fronting Robey Street consists of four levels , including one boarding room on the basement level; three boarding rooms, the manager ’ s room (including a private courtyard) and the communal room on the ground level; six boarding rooms on the first level ; and one room within a mansard style roof on the eastern side of the western building on the second level. The eastern building fronting Ferguson Street consists of four levels , including three boarding rooms and utility rooms on the ground level; four boarding rooms and utility rooms on the first level , which is the entry level from Ferguson Street; five boarding room s on the second level ; and two boarding rooms within a mansard style roof on the eastern side of the eastern building on the second level. The two buildings are separated by a central courtyard. Planning framework The application is made pursuant to Div 3 of State Environmental Planning Policy (Affordable Rental Housing) 200 9 (SEPP ARH). Div 3 of SEPP ARH applies to the land zoned R3 Medium Density Residential, at cl 26. The relevant terms of cll 29, 30 and 30A of SEPP ARH are as follows : 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than— (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus— (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds— (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area)— (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if— (iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (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. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following— (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The site is zoned R3 Medium Density Residential pursuant to Randwick Local Environmental Plan 2012 (LEP 2012) . Residential flat buildings are permissible in the R3 zone. T he objectives of the R3 zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings. The site is close to the B2 Local Centre zone of Maroubra, to the north and fronting Anzac Parade and Maroubra Road. The properties on the western side of Robey Street are zoned R2 Low Density Residential. The site has a floor space ratio (FSR) development standard of 0.75:1 (Floor Space Ratio Map - Sheet FSR_003 and cl 4.3 of LEP 2012). The properties to the east of the site in the R3 Medium Density Residential zone have a FSR development standard of 0.9:1 and the properties to the west of the site in the R2 Low Density Residential zone have a FSR development standard of 0.5:1. The site has a height of buildings development standard of 9.5m (Height of Buildings Map – HOB_003 and cl 4.4 of LEP 2012). The properties to the east of the site in the R3 zone have a height of buildings development standard of 12m and the properties to the east of the site also have a height of buildings development standard of 9.5m. Randwick Development Control Plan 2013 (DCP 2013) includes objectives and controls for boarding houses at C4. According to the introduction to this section, the controls are intended to supplement the SEPP ARH provisions “ with additional guidelines and operational requirements to ensure quality yet affordable building design, effective on-going management and suitable living environment for both occupants and neighbours. ” The relevant objective for building design is to ensure boarding rooms and communal spaces are appropriately sized, located and equipped with suitable facilities. The Council submitted that earlier issues concerning the size and quality of communal areas are resolved by the amended proposal. 11 and 11A Wise Street, two semi-detached dwellings, are identified as a local heritage item ( “ Semi-detached pair ” item 232, Sch 5 , Pt 1 to LEP 2012). Clause 5.10(5) of LEP 2012 permits the consent authority to require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of a heritage item , if the site is within the vicinity of a heritage item. Section B2 at 1 of DCP 2013 includes the following provision regarding development in the vicinity of heritage items: 1.12 Development in the vicinity of heritage items and heritage conservation areas All new development adjacent to or in the vicinity of a heritage item or heritage conservation area needs to be considered for its likely effect on heritage significance and setting. Applicants should address in their Statement of Environmental Effects any potential impacts of the development on a heritage item or heritage conservation area and measures to minimise this impact, with reference to Part 12 of this section of the DCP and the relevant statement of heritage significance. Public submissions Three resident objectors gave evidence at the commencement of the hearing onsite and the Court, in the company of the parties and their experts, viewed the site from the rear private open space of 11A Wise Street, Maroubra and heard from a town planner engaged by the resident objector who resides at 11A Wise Street in relation to the impacts of the proposal on her property . The concerns of the objectors can be summarised as: The proposal does not comply with the local planning controls; The proposal will increase on-street parking in the vicinity of the site and there is already a lot of cars parking on the street in the area; The proposal will be occupied by a lot of people and the future occupants of the proposal will include backpackers , who will have parties in the open space between the two buildings; The proposal will result in amenity impacts on the private open space of 11A Wise Street and the side setback on the northern side is insufficient; The highlight windows do not provide adequate internal amenity; The proposal is incompatible with the established residential character of the locality. Expert evidence The applicant relied on the expert evidence of Anthony Betros (planning), James Phillips (heritage) and Paul Corbett (traffic). The Council relied on the expert evidence of Angela Manahan (planning), Kate Wine (heritage) and John Flanigan (traffic). The joint reports of the experts were admitted into evidence as Ex 3 (planning), Ex 4 (heritage) and Ex 5 (traffic). The planning and heritage experts gave oral evidence. Consideration Compliance with standards under SEPP ARH and LEP 2012 The parties agreed that the proposal complies with the height of buildings development standard under cl 4.3 of LEP 2012 of 9.5m and that compliance with the standard cannot be used to refuse consent pursuant to cl 29(2)(a) of SEPP ARH . The Council raised a contention regarding the adequacy of internal amenity of the boarding rooms, because the floor to ceiling heights within the living/bedroom areas of the proposal are 2.617m , in order to respond to the particular site constraints and achieve compliance with the height of buildings development standard. The Council did not raise a contention regarding the landscaped treatment of the front setback area s of the proposal. The Council did raise a contention regarding the inadequacy of the proportion of the site which is landscaped area, submitting that the landscaped area of the site is 38% whereas 50% of the site should be landscaped. I am satisfied that the front setback area of the site is similarly proportioned to the front setbacks of multi-dwelling housing developments on the eastern side of Robey Street and the western side of Ferguson Street and that the landscaping proposed within both frontages (Dwg no. A-0101 , A-0102 , LP01 and LP02 of Ex C ) is both compatible and consistent with the front setback treatments in both streets, pursuant to cl 29(2)(b) of SEPP ARH. The parties agreed that the proposal complies with the FSR development standard under cl 4.4 of LEP 2012 together with the bonus for affordable housing to which the proposal is entitled under cl 29(1)(c) of SEPP ARH, which gives a FSR development standard of 1.25:1 . T he proposal has a FSR of 1.23:1. I note that the floor area s of the open style lobbies of the eastern and western buildings ( which are located in the centre of each building and run across the width of the building on each level) ha ve contributed to the calculation of the gross floor area of the proposal (excluding vertical circulation as per the definition) and the FSR numerical value (Dwg no. A-2002 rev F of Ex C). I am satisfied that the overall volume of the building envelopes of the proposal genuinely reflect s the development standard and bonus FSR for a boarding house development on this site. The parties agreed that the proposal provides a total of 13 car parking spaces (Ex 5, par 17) and complies with the parking requirements for boarding houses under cl 29(2)(e) of SEPP ARH . The parties agreed that the accommodation size complies with the minimum standard under cl 29(2)(f) of SEPP ARH, however, the Council raised a contention that the accommodation does not provide adequate amenity for future residents due to the proportions of the boarding rooms, including the width and the floor to ceiling height of boarding rooms . The parties agreed that the proposal provides the required communal living room and that the room receives a minimum of 3 hours direct sunlight between 9am and 3pm, which complies with the minimum standard under cl 29(2)(c) of SEPP ARH. The parties agreed that the proposal complies with the standards for boarding houses under cl 30(1) of SEPP ARH. Internal amenity of boarding rooms State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) does not apply to boarding houses, unless a local environmental plan, which applies to the proposed boarding house development, states otherwise, at cl 4(4) of SEPP 65 . LEP 2012 does not state that SEPP 65 applies to a boarding house development to which LEP 2012 applies. When determining an application to carry out development to which SEPP 65 does appl y , the consent authority is to refer the application to the relevant design review panel for advice concerning the design quality of the proposed development and is to consider, amongst other things, the Apartment Design Guide (ADG), at cl 28 of SEPP 65 . Despite SEPP 65 not applying to this application, the application was referred to the Randwick Design Excellence Panel and the panel ’ s findings were filed with the Court , although the Council did not seek to tender the document. Th roughout the hearing, the Council sought , th r ough submissions and evidence, to test the proposal against the requirements of SEPP 65 and particularly the ADG. I accept the Council ’ s submissions that the provisions of SEPP 65 and section C2 of DCP 2013 for medium density residential development are a relevant consideration in this matter , but only to the extent that they establish the desired future character for the R3 zone that includes the site because residential flat buildings are a permissible use in the R3 zone . I do not accept the submission that the proposal should or can be tested against the design criteria in the ADG and found to be wanting , because the Council has opted not to include a provision in LEP 2012 stating that SEPP 65 applies to development for the purpose of a boarding house. If the Council wants SEPP 65 and the ADG to apply to boarding house developments; it is for the Council to amend its LEP to include a provision pursuant to cl 4(4) of SEPP 65. The crux of the dispute in this matter is that the proposal seeks to fit three boarding rooms side by side across a narrow site. Twenty-two of the total twenty- six boarding rooms, including the manager ’ s room, are in this typical configuration. The site is long and narrow, with a con stant width of 11.278m. In order to fit three boarding rooms side by side, the boarding rooms are long and narrow, approximately 2.6m wide, and configured to meet the minimum area standard (being a standard that if met, cannot be used to refuse consent) under cl 29(f) of SEPP ARH. The floor to ceiling height in the living/bedroom areas of the proposal is 2.617m. The side setbacks are 1.44m on the northern side and 1m on the southern side (and greater in the location of lobbies and the central courtyard) . I accept that the amenity of the boarding rooms, and compliance with the minimum standards under cl 29(f) of SEPP ARH, are not necessarily the same thing, however, the Council cannot point to a single provision in relation to internal amenity that is both engaged and purportedly contravened by the proposal. The Council has included a section for boarding houses in DCP 2013 . The objective for ‘ building design ’ under section C4, to “ ensure boarding rooms and communal spaces are appropriately sized, located and equipped with suitable facilities ” was referred to by the Council in opening submissions with the inference that the 2.6m wide boarding rooms do not meet the objective . N o contentions were raised by the Council concerning the proposal ’ s non-compliance with any of the controls under section C4 of DCP 2013 . Section 4.15(3A) of the EPA Act provides that the consent authority is not to require a more onerous standard with respect to that aspect of the development for which the provisions of a DCP set standards if the application complies with those standards. On that basis, the Council cannot raise an issue that the width of the boarding rooms results in rooms with poor amenity and so contravenes the objective for ‘ building design ’ under section C4 of DCP 2013 , without also citing a ‘ building design ’ control that is contravened by the proposal. It cannot be that the proposal complies with the standards set for ‘ building design ’ by the controls , yet contravenes the objective, because the objective of the standard is satisf ied by compl iance with the controls for that standard . A finding that the width of the boarding rooms contravened the objective for ‘ building design ’ under section C4 of DCP 2013, yet did not contravene any of the controls for ‘ building design ’ , would be to require a more onerous standard with respect to that aspect of the development addressed by the standard and would therefore constitute an error under s 4.15(3A)(a) of the EPA Act. I accept the Council ’ s submission that a 3.1m floor to floor height, with a 2.7m floor to ceiling height in bedroom/living areas is ideal. I accept the applicant ’ s submission that the Building Code of Australia requires 2.4m floor to ceiling height in living areas. I accept the proposition that a 2.4m floor to ceiling height in bathrooms, laundries and kitchens is adequate and provides good amenity in those spaces. I accept the applicant ’ s submission that there is no requirement for a 2.7m floor to ceiling height in a boarding house development and that the proposed 2.4m in bathroom and kitchenette areas and 2.617m in living/bedroom areas will provide adequate amenity to the future occupants of the proposal. I am satisfied that the overall proportions and spatial layouts of the boarding rooms is adequate and that the future residents of the proposal will enjoy reasonable amenity. I accept and agree with Mr Betros ’ evidence that many other aspects of this proposal provide very good overall amenity for future residents , including close proximity to services in a local business centre , parks and public transport; the window seats in each boarding room overlooking a landscaped open space ; the private kitchenettes and bathrooms within individual boarding rooms ; the provision of shared laundry facilities and parking ; and a communal living room opening onto a communal courtyard with an open northern aspect . Compatibility with the character of the local area The Council ’ s case rested on the proposition that a residential flat building on this site, or on this site amalgamated with adjoining sites, would result in a two storey building form with generous side setbacks, and so the bulk and scale of the proposal is contrary to the desired future character of the R3 zone on the block that includes the site. The Council further submitted that despite the R3 zoning of the block and the permissibility of residential flat buildings in the R3 zone, the construction of development consistent with the zone and development standards has been slow and so the extant single dwellings continue to dictate the character of the locality. I reject this submission . T here have been several developments consistent with the scale and permissible uses under the medium density residential zoning of the block that includes the site, and the block to the east, and these developments contribute to the existing character of the locality. For this reason, t he existing character of the locality is no longer exclusively low density residential. The block to the east, albeit with higher density development standards, has an established medium to high density residential character with many 4 storey residential flat developments. The visual backdrop to the locality, particularly views to the north along Ferguson Street, is the high density commercial precinct of Maroubra. The character of Wise Street, to the north of the site, and the R2 zone to the west of Robey Street, is low density residential. The established character of the locality is mixed and is in transition. It is therefore appropriate to look to the zoning, permissible uses and development standards of the locality as establishing the character of the local area. The Council cited the following objectives and controls in section C2 of DCP 2013, “ Medium Density Residential ” , as establishing the desired future character of the R3 zone, which includes the site: 2.2.1 Landscaped open space: “ a minimum of 50% of the site area is to be landscaped open space ” ; 2.2.2 Deep soil area: “ a minimum of 25% of the site area should incorporate deep soil areas sufficient in size and dimensions to accommodate trees and significant plantings ” ; 3.3 Building depth: “ control i ) for residential flat buildings, the preferred maximum building depth … is between 10m and 14m ” ; 3.4 Setbacks: objectives – “ to define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contributes to the local character. ” Side setbacks for residential flat buildings on a site frontage width of less than 12m, the minimum side setback is a “ merit assessment ” . The minimum side setback for a site 12m-14m is 2m and greater setbacks up to 4m are expected as the width of the site increases; 4.1 Building f a çade: “ control iv) Avoid massive or continuous unrelieved blank walls. This may be achieved by dividing building elevations into sections, bays or modules of not more than 10m in length, and stagger the wall planes ” ; 4.3 Habitable roof space: “ control i ) When viewed from the surrounding public and private domain, the roof form (including habitable roof space associated private open space and plan and machinery) has the appearance of a roof. A continuous flat roof with habitable space within will not satisfy this requirement ” ; 4.4 External wall height and ceiling height: objectives – “ to ensure that the building form provides for interesting roof forms and is compatible with the streetscape; to ensure ceiling heights for all habitable rooms promote light and quality interior spaces; to control the bulk and scale of development and minimise the impacts on the neighbouring properties in terms of overshadowing, privacy and visual amenity … Control ii) Where the site is subject to a 9.5m building height limit under the LEP, a maximum external wall height of 8m applies. ” The parties agreed that the proposal is consistent with the 8m wall height control in 4.4(ii) of DCP 2013 for medium density residential development. In Ms Manahan ’ s opinion, the vertical elements of the mansard roof contribute to the overall wall height and the mansard roof elements exceed the 8m wall height control. I do not accept Ms Manahan ’ s evidence for two reasons; firstly the controls in section C2 of DCP 2013 do not apply to the proposal (as agreed by the planning experts) , they merely denote the expected character of a residential flat building in the R3 zone and so it is not necessary to strictly construe the control and its application to this proposal ; and secondly, the control is for external wall height [italics added] and the parapet wall s adjacent to the mansard roof element s on the northern, eastern and western fa çades of the proposal are less than 8m above existing ground level (Dwg no. SK-01 of Ex C). The wall elements associated with the uppermost level on both buildings are located across the buildings on the western side of the accommodation provided within the roof element and are not external walls within the meaning of the definition for external wall height . The dormer windows should not contribute to wall height because a dormer window is an element within a roofscape. Small portions of the top of the “ green wall ” at either end of the lobbies are greater than 8m above the existing ground level, however, the green walls consist of battens and are not fully enclosed . The green walls a re also in set in from the northern and southern perimeter masonry walls of the proposal. I am satisfied that the overall height of the proposal and the masonry wall height of the perimeter walls to the underside of the eaves or to the top of the parapet on the eastern side of each proposed building is consistent with what might otherwise have been expected if the proposal had been for a residential flat building. The Council submitt ed that the proposed landscaped area of the sit e is insufficient because the proposed landscaped area of the site is 38% and the proposed deep soil area of the site is 9%. I am satisfied that the overall figure/ground footprint of the proposal is compatible with the character of the local area, because the two buildings are in a landscaped setting, with typically proportioned and landscaped front setbacks to both Robey and Ferguson Streets. The proposal includes three trees with the potential to grow into substantial trees, each in one of the three landscaped areas on the site. The basement carpark necessarily occupies the narrow width of the site, diminishing the opportunity for deep soil within the side setbacks, and reducing the yield of the development would not reduce the width of the basement. The side setbacks of a residential flat building s and multi-dwelling housing on a narrow site less than 12m are subject to a merit assessment and are presumably less than 2m, as a 2m side setback is expected for a site that is 12-14m wide, under the controls for side setbacks at section 3.4.2 of DCP 2013. I accept that the Council ’ s criticism of the side setbacks of the proposal are valid and that this is the sticking point in the assessment of this proposal , because the side setbacks are narrow . I accept the applicant ’ s submission that a boarding house development is entitled to the bonus floor space under cl 29(1) of SEPP ARH and that the additional volume over and above another permissible use in the R3 zone must be located somewhere on the site. The purpose of the bonus floor space is to facilitate the effective delivery of new affordable rental housing by creating an incentive for the provision of affordable housing, at cl 3 of SEPP ARH. Inevitably, a boarding house development will therefore have a larger building envelope when compared to another permissible use in the zone. The proposal seeks to fit three boarding rooms side by side across this narrow site and this is achieved by making the rooms narrow and minimising the side setbacks adjacent to the banks of boarding rooms on the eastern and western side of each of the two buildings. The northern side setback is greater in width because the northern side setback is the shared rear boundary with the properties fronting Wise Street, including the heritage item. In balancing the proposal ’ s response to the constraints and opportunities of this site, particularly the constraint posed by the width of the site , I am satisfied that the narrow side setbacks of the proposal are acceptable . The proposal achieves an efficien t spatial layout and compli es with the development standards for height of buildings and FSR including the bonus . T he narrow sections of the side setbacks are limited to the setbacks adjacent to the boarding rooms and are relieved in the areas next to the green walls of the lobbies, the two front setbacks and the courtyard at the centre of the site. The side setbacks do not result in unreasonable amenity impacts on adjoining properties. The proposal includes a landscaped setting with green walls and planters and areas of deep soil located over the basement. I am satisfied that the building envelopes and the figure/ground footprint of the proposal is compatible with the character of the local area, within the meaning of compatible as defined by the planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [26] - [28]. Overshadowing of 43 Robey Street The planning experts disagreed on the impact of overshadowing on 43 Robey Street on the winter solstice. 43 Robey Street contains a single mid-century dwelling and the property has a similar configuration to the site. There was a consent for a residential flat building in two building forms containing 18 units at 43-47 Robey Street which has now lapsed (Ex D , tab 2 ). According to Mr Betros , 43 Robey Street will receive four hours of sunlight on the winter solstice to the northern kitchen window, which is an improvement when compared to the current situation, and to the private open space directly behind the existing dwelling accessed over the courtyard between the two proposed buildings on the site. According to Ms Manahan, the northern kitchen window of 43 Robey Street will receive three hours of solar access, but the private open space of 43 Robey Street will be completely overshadowed all day on the winter solstice. It is reasonable to assume that the adjoining property at 43 Robey Street will be redeveloped. I accept that 43 Robey Street is vulnerable to overshadowing by the proposal because it is to the south of the site and the southern side setback of the proposal is narrow. In my view, however, the central courtyard , which provides approximately 11m between the two proposed building envelopes at the first level, provides much better solar access to 43 Robey Street, when compared to a small increase in the southern side setback of the building envelope of the proposal. Impact on the heritage significance of the heritage item The heritage item is a pair of semi-detached dwellings fronting Wise Street , numbers 11 and 11A , and the rear boundaries of the heritage item is the northern side boundary of the site . Both dwellings have a landscaped rear courtyard . The existing dwelling on the site is positioned directly behind the semi-detached dwellings that are the heritage item . According to Ms Wine, the proposal has a minimal impact on the visual setting of the heritage item when viewed from Wise Street , however, it has a detrimental impact on the setting of the heritage item when viewed from the rear courtyard of 11 Wise Street . According to Mr Phillips, the importance of the front elevations of the heritage item and its relationship to Wise Street is unaffected by the proposal. According to Ms Wine, the heritage item currently sits within an immediate context of dwellings which are predominately one and two storeys in height. In her view, the main issue is the proximity of the proposal to the northern boundary (1.44m) and its overall bulk of three storeys, because this will harm the existing outlook and visual setting of the heritage item as appreciated from the rear private open spaces and particularly from the rear of 11 Wise Street. The experts agreed that the location of the central courtyard in approximate alignment with the shared boundary of the semi-detached dwellings and the provision of a tree on the northern side of the courtyard will contribute positively to the landscaped setting of the heritage item. The semi-detached dwellings at 11 and 11A Wise Street were listed as a heritage item under the previous LEP, Randwick Local Environmental Plan 1998. If the Council had agreed that the context of dwellings of one and two storeys in height was an important aspect of the heritage significance of the item, presumably it would not have zoned this block R3 Medium Density Residential with a FSR development standard of 0.75:1 under the current LEP 2012 . I accept the applicant ’ s submission that the curtilage of the heritage item is sensibly confined to the two allotments on which the semi-detached dwellings are located because the allotments of the heritage item are the same as when the dwellings were constructed and they were designed as an element within a suburban streetscape . I am satisfied that the setting of the heritage item, when viewed from Wise Street, is maintained by the proposal . T he real issue in my view is not about the setting of the heritage item but is about the impact of the scale of the proposal and its setback on the amenity enjoyed in the rear courtyards of the semi-detached dwellings . The amenity enjoyed by the occupants of the heritage item should be given priority, because the adjoining development , both in Wise Street and behind the heritage item, will ultimately be greater in scale than the heritage item . Surrounding development should be appropriately deferential at its interface with the heritage item and seek to preserve the amenity of the heritage item, because the two properties that constitute the heritage item are unlikely to realise the development potential endowed upon them under LEP 2012. I accept and agree with Ms Wine ’ s evidence that the impact of the building envelope of the proposal on the visual amenity of the rear courtyard of 11A Wise Street is acceptable, because the courtyard between the two buildings and the roof over the single storey section of the communal room provides a large gap between the two proposed buildings when viewed from the courtyard of 11A Wise Street and there is no real opportunity for overlooking of the courtyard s from the proposal. I am satisfied that the impact of the building envelope of the proposal on the rear courtyard of 11 Wise Street is also acceptable. The propos ed building envelope is to the south of the courtyards of the heritage item, so importantly it has no impact on solar access to these two properties. Part of the shared boundary is occupied by the central courtyard, and the proposed tree, which gives some relief to the backdrop of the courtyard at 11 Wise Street. The rear building of the proposal adjacent to the rear boundary of 11 Wise Street is two storeys over a partially subterranean lower level, which is the scale of a residential flat building that would otherwise be likely to occupy the site under LEP 2012. I accept that the 1.44m setback to the northern boundary will result in the eastern building of the proposal forming a substantial backdrop to the courtyard at 11 Wise Street , however, the narrow setback to the northern side boundar y is justified by the proportions of the site and the form of the proposal , which provides a courtyard in the centre of the site, to the rear of the heritage item , and the lack of any other amenity impacts on the rear courtyard of 11 Wise Street . Orders The orders of the Court are: The appeal is upheld . Development Application No. 382/2019 for the demolition of existing structures and construction of a boarding house development across two buildings, is approved, subject to the conditions of consent at Annexure A. The exhibits, other than exhibits 1, 6, A, B, C and D , are returned. ____________ Susan O’Neill Commissioner of the Court Annexure A (414987, 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: 09 November 2020