Waights v Northern Beaches Council [2021] NSWLEC 1153 (29 March 2021)

Last Updated: 23 April 2021

Land and Environment Court New South Wales

Case Name:	Waights v Northern Beaches Council
Medium Neutral Citation:	[2021] NSWLEC 1153
Hearing Date(s):	29 January, 1 and 10 February 2021.
Date of Orders:	29 March 2021
Decision Date:	29 March 2021
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	Proceedings 2020/145123 See orders below at [45] Proceedings 2020/145148 See orders below at [46]
Catchwords:	APPEALS – two development applications – adjacent boarding house developments – neighbour objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Boyce v Inner West Council [2019] NSWLEC 1521 New Century Development Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154
Texts Cited:	Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (December 2020) Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Brendan Andrew Waights (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: F Hicks SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Yates Beaggi Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2020/145123 and 2020/145148
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: These two appeals lodged by the Applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) concern two separate development applications, each of which seek consent for boarding house developments. The appeals are against the deemed refusal of each of the development applications by Northern Beaches Council (Council).

The sites

2. I rely substantially on the two statements of facts and contentions filed by Council (Ex 1 and Ex 2 in proceedings ) and the two reply statements filed by the Applicant (Ex A and Ex B ) for much of the descriptive material in this and the following sections.
3. Proceedings 2020/145123 is concerned with the development application (DA) referred to as DA2020/0205 under Council’s DA reference system. It relates to the part of 18 Alexander Street Collaroy legally described as Lot 9 DP 6984. Henceforth I will reference this site as Lot 9.
4. Proceedings 2020/145148 is concerned with the DA referred to as DA2020/0261 under the same system. It relates to the part of 18 Alexander Street legally described as Lot 8 DP 6984. Henceforth I will reference this site as Lot 8.
5. When referring to Lots 8 and 9 together I will refer to them as the Lots. The Lots are adjacent to one another with Lot 8 located to the east of Lot 9.
6. Lot 9 is regular in shape with a frontage of 12.20m accessing onto Alexander Street and a depth of 46.895m. The lot has a surveyed area of 574.8m². It has a fall from the rear southern boundary to the front of the site of approximately 5.52m (11.8%).
7. Lot 8 is also regular in shape with a frontage of 12.20m accessing onto Alexander Street and a depth of 47.955m. The lot has a surveyed area of 581.3m². It has a fall from the rear southern boundary to the front of the site of approximately 5.3m (11.3%).
8. Together the Lots accommodate a two and three storey brick dwelling house with a detached single storey timber clad shed and a swimming pool. There is considerable existing vegetation on the Lots.

Locality

9. Alexander Street runs perpendicular to Pittwater Road, a major traffic artery in the locality, with the Lots around 150m west of the intersection. Collaroy local centre is in the environs of this intersection and Collaroy Beach is close by, across Pittwater Road.
10. Adjoining and surrounding development is characterised by predominantly one (1) and two (2) storey dwelling houses, with instances of three and four storey development. There is a large open area to the rear of the Lots, which appeared well vegetated near the boundary. The planners indicated this area was in use as a retirement village and function centre.

Statutory Setting

11. The Lots are located within the R2 Low Density Residential zone under Warringah Local Environmental Plan 2011 (WLEP). The zone objectives are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

12. Boarding houses are a permissible use in the R2 zone.
13. The proposal also relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH).
14. Warringah Development Control Plan 2011 (WDCP) also applies.

The Proposals

15. Between the lodgement of the appeal and the finality of proceedings, the Proposals were subject to considerable amendments, aimed at addressing contentions raised by Council and in lay submissions from objectors.
16. With these amendments, the Proposal for Lot 8 includes 10 boarding rooms for up to 20 boarders (all rooms with capacity for double occupancy) plus an on-site manager residence. Four on-site parking spaces would be provided.
17. The Proposal for Lot 9 includes nine boarding rooms for up to 17 boarders (eight rooms with capacity for double occupancy and one with capacity for a single boarder) plus an on-site manager’s residence. Four on-site parking spaces would be provided.
18. Each of the Proposals are two storeys with parking under.
19. There was agreement among the parties that the amended Proposals comply with applicable statutory development standards. In regard to the 8.5m building height control under WLEP, it is notable that while the original plans included some breaches, the amended plans do not (as indicated in Drawing DA 801 Rev B with respect to both Lots). The boarding house specific standards at cl 30 of SEPPARH are also met. There is no applicable floor space ratio standard under WLEP. I mention here that mindful of 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 and my own findings in regard to it in Boyce v Inner West Council [2019] NSWLEC 1521, in this instance, there would be no requirement for the structured consideration under cl 4.6 of WLEP even if there were a contravention of the height standard in that instrument.

Background

20. As referenced in the Town Planners Joint Expert Report (Ex 4, Annexure C and par 71 for example), there is a relatively recent consent over the Lots (DA 2019/0306) for a development with some similarities in physical form to that proposed with the appeals.

Proceedings

21. Given the adjacency of the Lots and the common issues involved in addressing each of the appeals, the two proceedings were heard together and on the basis that the evidence in one was evidence in the other. There is a single list of exhibits, and the objectors and experts who gave evidence addressed both Proposals.
22. The hearing was conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy, which is intended to put into effect the State’s public health orders regarding social distancing mindful of COVID-19. More particularly, the hearing was conducted as a “virtual court room” arrangement under the “Microsoft Teams” platform. This occurred after a physical inspection of the site and surrounds, and the hearing of oral submissions from two objectors (speaking on behalf of a wider group).
23. Expert evidence was provided as follows:
    • Town Planning – Michael Haynes (for the Applicant) and Renee Ezzy (for the Council);
    • Traffic – Bernard Lo (for the Applicant) and Rezvan Saket (for the Council);
    • Waste Management – Raymond Creer for the Council.

Issues

24. With the final amending plans and certain agreed conditions, the agreed view of the experts was that the contentions raised in Ex 1 and 2 were resolved. This meant the expert evidence was supportive of the Proposals approval, subject to conditions.
25. Having a mind to the lay objections (Ex 8 and 9), I gave notice to the parties that I wished to examine the experts in regard to certain issues. Below these issues are considered in light of this examination during the hearing proceedings.

Boarding room quality and amenity for occupants

26. Concerns were raised in regard to the space available for occupants and the overall amenity which would be experienced, including in regard to communal space. The experts were satisfied with the quality of the accommodation, and with the communal open space areas mindful of the SEPPARH controls. In regard to room sizes, I note that at cl 29 of SEPPARH includes “cannot be refused” standards for accommodation size, with which the Proposals comfortably comply.

Traffic and parking

27. Objectors commented upon and provided photographic evidence of the traffic problems experienced in Alexander Street now, which is the only through link up to Collaroy Plateau in the immediate area. It was argued there were common instances of conflict where vehicles coming up and down the hill had insufficient room to pass due to parking on either side of the road. The concern was that the Proposals would increase both traffic and parking problems. The Proposals would generate additional traffic. Parking demand would be increased with the number of spaces insufficient to meet all this demand on site.
28. The expert evidence (presented orally in the hearing but with reference to analysis undertaken by Transport and Traffic Planning Associates and included in its February 2020 Reports previously submitted to Council) was that peak traffic generation was 2-3 vehicles/hour (for each Proposal) which was not of sufficient scale to affect “service levels” for Alexander Street traffic. On-site vehicle waiting areas for both Proposals, along with improvements to available sight distances, were seen to address the risk of the Proposals increasing the incidence of conflict. Mr Sakat saw the parking levels (1 space less than the deemed to satisfy provisions of SEPPARH in regard to the Lot 9 Proposal) as sufficient given the proximity to Pittwater Road and higher order bus services (including the B-Line to the CBD). Mr Lo saw the congestion problem, and the annoyance associated with passing problems in Alexander Street as a matter for Council to address, including consideration of whether two-sided parking in this street is appropriate. That is, that this problem can only reasonably be seen as going beyond these current Proposals.

Neighbour amenity

29. The neighbour (and neighbourhood) amenity concerns included noise, overshadowing, overlooking and visual impact.
30. In regard to noise (and general annoyance), there was a concern about a proposed elevated communal terrace area at the front of the Lot 9 Proposal. Objectors had little confidence in the proposed Plan of Management (PoM) intentions in regard to managing this area’s use. Prior to the hearing, there was no on-site manager for the Lot 9 Proposal and the concern was that management of this front terrace would be left to the neighbours and Council. Of note here is that amending plans provide for an on-site manager for each of the Proposals. Amplified music would not be allowed and the communal terrace would not be used after 10pm. That is, there is now an on-site manager residence on Lot 9 with which gives the experts confidence that the PoM intentions can be achieved. Further landscape screening would filter views between the Lot 9 terrace and the street to the north.
31. The overshadowing concern was in regard to 16 Alexander Street to the east of Lot 8. This Proposal would overshadow 16 Alexander Street in the afternoon. The experts noted the general north-eastern aspect of that property and that WDCP requirements were met in regard to solar access to it.
32. Visual privacy concerns were addressed to the satisfaction of the experts in principle during the hearing, through privacy treatments to window restricting sight lines. Deferred commencement conditions require final design details on privacy screens to be approved by Council.
33. Visual impact and lack of compatibility with local character, more generally, were significant concern from objectors. While complying with height controls, the Proposals involved a contravention of WDCP’s building envelope controls in relation to side boundaries (WDCP Control B3). The experts were satisfied that the visual impact was satisfactory, citing the following reasons. The contravening elements of the building envelope were limited and more towards the rear of the building, with the street presentation of the buildings of lesser bulk. Perhaps more importantly, the experts saw the architectural design as quite positive elements of both Proposals, incorporating form articulation (including significant breaks in building massing) and variety of materiality, coupled with landscaping. The experts found the Proposals as meeting the objectives of the envelope control at WDCP Part B3, notwithstanding the contravention, triggering the flexibility encouraged under s 4.15(3A)(2) of the EPA Act. I reproduce WDCP Part B3 objectives, below:

• To ensure that development does not become visually dominant by virtue of its height and bulk.

• To ensure adequate light, solar access and privacy by providing spatial separation between buildings.

• To ensure that development responds to the topography of the site.

Landscaping, tree retention and relationship to ecological concerns

34. While there were concerns raised about tree removal generally, a particular concern here was a large fig in the front setback area, with the canopy straddling both lots. Objections included the harm to local fauna and biodiversity more generally, especially were the fig lost.
35. Amending plans and deferred commencement conditions in relation to permeable paving satisfied the experts that no unreasonable damage from the development would occur. Layout changes to hardstand were made, aimed at protecting the tree, and conditions were recommended requiring tree management attention under the responsibility of an AQF Level 5 arborist.
36. It was indicated by the experts that Council took a “strategic approach” to assessment of biodiversity impacts. Areas of significance were identified in the GIS mapping system, triggering a higher level of analysis in appropriate instances. In this instance the area was not identified as such, not being identified as a wildlife corridor or for biodiversity protection.
37. The experts were satisfied in principle with landscaping treatments with amended landscape plans required by way of a deferred commencement condition to Council’s satisfaction. A concern raised by objectors that a future electricity substation may affect the potential to deliver landscaping was addressed through examination of correspondence from Ausgrid (responding to notification of the Proposals) which did not earmark the need for a substation. Ms Ezzy indicated that in her experience, this correspondence would suggest such a need if this were the case.

Stormwater management

38. A number of conditions were imposed by Council’s engineer which were seen to accommodate the concerns raised in regard to stormwater.

Combined effects of the individual Proposals

39. A concern of objectors was that insufficient regard was had to the implications of the Proposals, together. This included their combined bulk and scale and visual presentation in the street (imagery was provided for development on individual lots, but not in combination) and the combined effects in terms of local character compatibility. This second factor, in particular, whether the design of the development is compatible with the character of the local area, is a direct consideration of mine under cl 30A of SEPPARH.
40. The consideration of these applications discretely has validity in a statutory sense but also in practical terms. That is to say, there is no certainty that both developments would be developed were approval to be forthcoming. Of note to me here are the plan amendments improving the internal relationship between Lots 8 and 9 Proposals. But there is also an unreasonableness in ignoring the combined effects of the Proposals.
41. In this instance, I find the Proposals to be satisfactory when considered in a combined way. One point here is the fact of compliance with the relevant controls and my satisfaction with the side building envelope considerations. The visual impacts of the combined Proposals and traffic considerations warrant more specific note. When viewed with a mind to their combined completion, I am satisfied that the architectural treatments incorporating landscaped front setbacks, significant articulation and breaks in building massing, the proposed variety in materials and the significant differences in architectural presentation of the buildings individually, mean that the Proposals would also present compatibly in the streetscape together. On traffic, I generally agree with the experts that the scale of increase in traffic associated with the Proposals together is not of concern of itself, and that the larger questions of management of conflict within Alexander Street are not unreasonably prejudiced by these Proposals.

Conclusion

42. Mindful of New Century Development Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 and Lloyd J at [61] – [62], I see the views expressed by the experts as addressing the concerns raised in the lay submissions objecting to the Proposals.
43. With final architectural and landscape design, I find that the Proposals are compatible with the local area in visual and physical terms given their particular contextual setting. Further I generally agree with the conclusions of Mr Haynes in particular that the Proposals are in the public interest given their capacity to provide additional somewhat more affordable housing supply in a very well appointed setting (Ex 4, par 234-236).
44. The Proposals adequately addresses the relevant issues and warrant conditional approval.

Proceedings 2020/145123

45. The Court orders that:

(1) Leave is granted for the Applicant to rely on the amended and additional plans and materials as listed in the conditions of consent at Annexure A.

(2) Within 28 days, the Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 to an agreed total amount of $12000 incorporating the costs in relation to both Proceedings 2020/145123 and 2020/145148 and previous costs orders made by the Court on 19 January 2021 in relation to both proceedings.

(3) The appeal is upheld.

(4) Development Application No. DA2020/0205 for partial demolition works and construction of boarding house with associated parking and landscaping works on Lot 9 DP 6984, part of 18 Alexander Street Collaroy, is approved subject to the conditions at Annexure A.

(5) The exhibits are returned with the exception of Exhibits 1, 2, A, B and C.

Proceedings 2020/145148

46. The Court orders that:

(1) Leave is granted for the Applicant to rely on the amended and additional plans and materials as listed in the conditions of consent attached at Annexure A.

(2) Within 28 days, the Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 to an agreed total amount of $12000 incorporating the costs in relation to Proceedings 2020/145123 and 2020/145148 and previous costs orders made by the Court on 19 January 2021 in relation to both proceedings.

(3) The appeal is upheld.

(4) Development Application No. DA2020/0261 for partial demolition works and construction of boarding house with associated parking and landscaping works on Lot 8 DP 6984, part of 18 Alexander Street Collaroy, is approved subject to the conditions at Annexure B.

(5) The exhibits are returned with the exception of Exhibits 1, 2, A, B and C.

Addendum made on 23 April 2021

47. The parties have drawn to the Court’s attention that the costs orders agreed between the parties under s 8.15(3) of the EPA Act in relation to these two matters, was not correctly represented in the orders made in relation to the matters on 29 March 2021.
48. Those orders (specifically Order 2 to Proceedings 2020/145123 and Order 2 to Proceedings 2020/145148) referenced agreed costs for both matters at $6000, whereas the agreement reached between the parties provided for costs of $6000 to be awarded in relation to each of the two matters. That is, a total of $12,000 in relation to the proceedings together.
49. I am satisfied that this is an accidental slip that can be amended under Uniform Civil Procedure Rules 2005 (UCPR) r 36.17, which allows a correction of a “clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order.” Accordingly, I make orders in chambers as follows:

(1) By consent and pursuant to UCPR 36.17, the decision in these proceedings, published on 29 March 2021, be varied so that:

(a) At [45] of the judgment, in relation to the orders for Proceedings 2020/145123, the reference to “$6,000” at Order 2 be replaced with “$12000”, and

(b) At [46] of the judgment, in relation to the orders for Proceedings 2020/145148, the reference to “$6,000” at Order 2 be replaced with “$12000”.

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P Walsh

Commissioner of the Court

Annexure A (524345, pdf)

Annexure B (505550, pdf)

Lot 8 Plans (2939294, pdf)

Lot 9 Plans (3201412, pdf)

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Amendments

23 April 2021 - See addendum at [47]-[49].