ATTACHMENT 13 EXTERNAL COLOURS AND FINISHES
1. Compliance with State Environmental Planning Policy (Affordable Rental Housing) 2009
The proposal relies on the provisions of SEPP (Affordable Rental Housing) 2009. The provisions of clause 26 of the SEPP ARH 2009 identify that “Division 3 – Boarding Houses”
applies to land to any of the following zones or any equivalent land use zones:
(a) Zone R1 General Residential,
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(b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential, (e) Zone B1 Neighbourhood Centre, (f) Zone B2 Local Centre,
(g) Zone B4 Mixed Use
Clause 27 of the SEPP further provides:
(1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses.
(2) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area.
(3) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones.
The subject site is zoned R2 Low Density Residential under Local Environmental Plan 2012 and is within an accessible area. An accessible area is defined in the SEPP as land that is within:
(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or
(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or
(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.
The subject site is located within an accessible area. There are existing bus stops opposite the site that are serviced by eight different bus routes, being routes 600, 610, 610x, 612x, 619, 627, M60, M61, including two that use accessible buses. A number of these routes operate across the week, complying with the definition of an ‘accessible area’ in the SEPP.
The subject site satisfies the above definition as it is located within 400 metres walking distance of a bus stop used by a regular bus service.
In this regard, Division 3 of the SEPP applies to the proposed development and therefore it may be carried out with consent.
Clause 29 of SEPP (ARH) 2009 contains development standards that cannot be used to refuse consent if they are satisfied or complied with. The proposal has been assessed against these standards as follows:
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Development Standard Proposal Compliance (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:
(a) the existing maximum floor space ratio (FSR) for any form of
residential accommodation permitted on the land.
The site is not subject to an FSR standard in LEP 2019.
However, the FSR standard prescribed in Council’s DCP 2012 Part B Section 3 – Dual Occupancy is the only form of residential accommodation permitted on the land with an existing FSR restriction. The maximum allowable FSR for dual occupancy is 0.5:1 and the proposed FSR is 0.74:1.
A FSR of 0.5:1 is commonly accepted in planning practice as compatible with low density residential developments.
No, see comment below.
(2)(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.
The maximum permitted building height under LEP 2012 is 9m. The maximum proposed building height is approx. 8.47m.
Yes
(b) landscaped area
if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,
The proposed landscaping is not compatible with the streetscape, in particular the proposed 1.2m high solid masonry wall, bin storage areas, and hydrant location are inconsistent with the surrounding streetscape.
No, see comment below.
(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,
The communal room is positioned at the rear of the building and receives over 3 hours of sunlight in mid-winter.
Yes
(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,
An area of at least 20 square metres with a minimum dimension of 3m wide is provided. The residents will also have access to open space at the rear.
A screened private courtyard of 17.5m2 and minimum 2.5m wide is provided adjacent to
Yes
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(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.
the manager’s room. This will be screened.
(e) parking if:
(i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and
(ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area--at least 0.4 parking spaces are provided for each boarding room, and
(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.
N/A
N/A
The proposal requires 8 cars spaces based on the 15 rooms proposed (14 boarding rooms and 1 manager’s room).
14 boarding rooms x 0.5 = 7 1 manager’s room = 1 Total: 8
A total of 8 car spaces, including 1 accessible space, are provided however the manager’s space is stacked behind a resident space and is not accessible so the proposal is not compliant.
N/A
N/A
No, see comment below.
(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
Each room has a floor area of at least 16sqm for potential use as double rooms and meet the minimum area required exclusive of the kitchenette and ensuite bathroom.
Yes
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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.
All rooms have private kitchen and bathroom facilities.
Yes
The above table demonstrates that the proposal does not achieve full compliance with the pre-set standards for boarding houses, with non-compliant floor space ratio, landscaping and parking.
a. Floor Space Ratio
Clause 29(1)(a) of the SEPP states the following provision:
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—
(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land.
The existing maximum floor space ratio as defined in the SEPP means “the maximum floor space ratio (FSR) permitted on the land under an environmental planning instrument or development control plan applying to the relevant land, other than this Policy or State Environmental Planning Policy No 1—Development Standards”. In this case, an FSR of 0.5:1 applies for a dual occupancy development which is another form of residential accommodation permitted in the R2 Low Density Residential Zone, which is prescribed in Council’s DCP Part B Section 3 – Dual Occupancy.
In terms of FSR, the total gross floor area of the proposed development is 683m2, which equates to 0.74:1.
With respect to the non-compliance with Clause 29(1)(a) Floor Space Ratio the applicant has provided the following comment:
No FSR standard applies to the site under THLEP 2019. Not applicable.
Comment:
Apart from dual occupancies, there is no FSR prescribed for any other form of residential development and as such the FSR for a dual occupancy has been considered on merit as a reasonable built form outcome for the site. While the proposed development will not be of the same style as many of the older dwellings in the area it is acknowledged that approval was previously granted for a dwelling on the same lot with a similar built form.
Notwithstanding that, the proposed boarding house is a separate development, and should be assessed as a standalone development, and is considered excessive in terms of the number of proposed occupants and overall density when compared to other residential dwellings in the locality.
It is considered that the applicant fails to justify the departure from the SEPP requirement.
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It is also noted that the applicant was previously advised at the prelodgement meeting to comply with an FSR of 0.5:1.
In this regard it is considered that the proposal is unsatisfactory and does not meet the requirements of Clause 29(1)(a).
b. Landscaped Area
Clause 29(2)(b) of the SEPP states the following provision:
A consent authority must not refuse consent to development to which this Division if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.
The proposed landscaping is not compatible with the streetscape, in particular the proposed 1.2m high solid masonry wall, bin storage areas and hydrant location which are inconsistent with the surrounding streetscape.
With respect to the non-compliance with Clause 29(2)(b) Landscaped Area the applicant has provided the following justification:
The front setback contains the driveway to the basement levels, defined communal open space, letter boxes, pedestrian pathway and entry. Council has previously assessed the landscaping proposed for each site as acceptable and in keeping with the area. Proposed landscape treatment ensures embellishment and augmentation and greater contribution to the streetscape than the existing situation.
Comment:
The application does not comply with the stated SEPP’s landscaping requirements.
The landscaping treatment of the front setback is not reflective of the predominant form of development in the immediate and surrounding low density residential uses. The landscape outcome does not complement the existing low density residential character within the immediate locality.
It is considered that the applicant fails to justify the departure from the SEPP requirement.
The proposed departure from the landscaping requirements is not considered satisfactory in this instance.
c. Parking
Clause 29(2)(e) of the SEPP states the following provision:
A consent authority must not refuse consent to development to which this Division 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.
The proposal requires eight cars spaces based on the 15 rooms proposed (14 boarding rooms and 1 manager’s room).
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14 boarding rooms x 0.5 = 7 1 managers room = 1 Total: 8
A total of eight car spaces, including one accessible space, are provided however one of the proposed parking spaces is a stacked car space to provide a car space for the manager and as such is not available for parking at all times due to conflict with the parking space forward of the stacked space.
Council’s DCP Part C Section 1 – Parking establishes specific objectives and development controls for the provision of parking, including ensuring satisfactory access is provided for parking within developments. It is noted that Clause 2.1.1(i) of DCP Part C Section 1 – Parking states that stacked parking will not be included in the assessment of the number of car parking spaces. As such, the proposed stacked parking is not considered satisfactory with regards to parking requirements.
With respect to the non-compliance with Clause 29(2)(e) Parking the applicant has provided the following justification:
It has been well accepted in the Court in numerous decisions that the SEPP does not mandate car parking for the manager. In this regard, for example, I draw your attention to the decision of commissioner Dickson in Arxidia Pty Ltd v Randwick City Council [2017]
NSWLEC 1463:
Following a review of the wording of the instrument I concur with the submission of Mr Eastman that SEPPARH at 29(2)(e)(ii) does not require the provision of a managers vehicular parking space for the developments due to the use of the phrase “not more than one”.
Comment:
The application does not comply with the required car parking provision of at least 0.5 parking spaces to be provided for each boarding room (and not more than one parking space for each person employed).
It is considered that the applicant fails to justify the departure from the SEPP requirement.
It is also noted that there is no on-street parking available in the immediate proximity given the location of the site on Old Northern Road. In this regard, it considered that the proposal is an overdevelopment of the site and not a suitable location for this form of development.
The proposed departure from the amended SEPP’s car parking requirements is not considered satisfactory in this instance.
Additional Standards for Boarding Houses:
Clause 30 of SEPP (ARH) 2009 sets out additional standards for boarding houses as follows:
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Development Standard Proposal Compliance (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,
(f) (Repealed)
(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.
The boarding house has 15 rooms and a communal area is provided.
Maximum room size is 25m2
Rooms are for a maximum of 2 persons.
Each room comprises these facilities.
The boarding house has a capacity for more than 20 lodgers. A manager’s room is provided.
N/A
Land is zoned for residential purposes.
The boarding house provides three (3) motor cycle spaces, and two (2) bicycle spaces.
Yes
Yes
Yes
Yes
Yes
N/A
Not relevant.
Yes
Clause 30A of SEPP (ARH) 2009
Clause 30A of SEPP (ARH) 2009 states the following:
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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.
Clause 30A requires consideration of whether the design of the development is compatible with the character of the local area. The applicant has provided an assessment of the compatibility of the development within the area as follows:
Each building envelope has been approved previously by Council. This application is essentially a change of use of the approved building envelopes. Accordingly, the built form including its context, siting, aesthetic, materiality, height, bulk and scale, landscape etc have all been assessed and deemed acceptable and in character with the area. The approved buildings will ultimately form a part of the defined character and hence the change of use does not alter the proposal's computability with the character of the local area.
The principles in Project Venture v Pittwater Council at para 26 provide that in assessing the compatibility of the development with the zone objectives:
“For a new development to be visually compatible with its context it should contain or at least respond to the essential elements that make up the character of the surrounding urban environment. The most important contribution to urban character is the relationship of built form to surrounding space, a relationship that is created by a building height, setback and landscape.”
Given the structure has already been approved and the proposal is for retention and use of the existing approved structure, then it follows that the proposal will be compatible with the character and context of the locality.
Comment:
To demonstrate that the proposal is a compatible form of development in the R2 zone, the development has been assessed on merit against Council’s DCP Part B Section 3 – Dual Occupancy and variations to landscaping, parking and building height envelope have been identified and are considered unsatisfactory having regard to the relevant objectives of the DCP.
The locality has a low density character. The boarding house comprises three storeys, with a maximum occupancy of 29 residents. It is considered that the proposed density is excessive and out of character with the low density nature of the locality. Having regard to the above requirements of Clause 30A of SEPP ARH 2009, it is considered the proposal will not be compatible with the existing and future character of the local area.
Accordingly, the proposal is considered unsatisfactory when considered with regard to Clause 30A of SEPP ARH 2009.
Clause 30AA of SEPP ARH 2009:
30AA Boarding Houses in Zone R2 Low Density Residential
On 28 November 2018, a proposed amendment to State Environmental Planning Policy (Affordable Rental Housing) 2009, Clause 30AA, was placed on public exhibition and concluded on 19 December 2018.
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Clause 30AA states:
A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
The amendment to the SEPP aims to facilitate the development of boarding houses in R2 Low Density zones that are compatible with the character of the existing residential density that is typically expected in that zone. In this regard, the amendment proposed that a boarding house in the R2 Low Density zone can consist of no more than 12 rooms. The changes, while ensuring greater compatibility with existing density, will still enable the provision of diverse housing options for the community.
The amendment was adopted and came into force on 28 February 2019.
It is noted that the proposed development was lodged on 2 November 2018 prior to the amendment coming into effect. The provision contains a savings and transitional provision, Clause 54C, for the amendment which would allow the application to be determined as if the amendment had not been made. Clause 54C states as follows:
54C Savings and transitional provisions—2019 amendment
1. This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement.
2. The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced.
3. In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019.
In this regard the proposal is not required to comply with Clause 30AA which prohibits more than 12 boarding rooms on land within Zone R2 Low Density Residential.
2. State Environmental Planning Policy No 55—Remediation of Land
The proposal has been reviewed by Council’s Environment and Health Officer and it has been determined that the previous use of the site was residential so is unlikely to have been used for any potentially contaminating purposes. However, should the application be approved a condition of consent has been recommended requiring that ground conditions are monitored and should evidence such as, but not limited to, imported fill and/or inappropriate waste disposal indicate the likely presence of contamination on site, works are to cease, Council’s Manager-Environment and Health is to be notified and a site contamination investigation is to be carried out in accordance with State Environmental Planning Policy 55 – Remediation of Land.