193 Liverpool Road Ashfield Pty Ltd v Ashfield Council

[2015] NSWLEC 1399

Land and Environment Court

New South Wales

Medium Neutral Citation:

193 Liverpool Road Ashfield Pty Ltd v Ashfield Council [2015] NSWLEC 1399

Hearing dates:

12-13 August 2015

Date of orders:

29 September 2015

Decision date:

29 September 2015

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.
2. The development application (10.2014.261.1) for the construction of a boarding house at 193-195 Liverpool Road, Ashfield is refused.
3. The exhibits, except Exhibit 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION: Boarding house. Maximum permissible height of building. Adequacy of vehicular access, parking and waste collection.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 1 – Development Standards
Ashfield Local Environmental Plan 2013

Cases Cited:

Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114
Hrsto v Canterbury City Council (No. 2) [2014] NSWLEC121
Hawkesbury City Council v Sammut [2002] NSWCA 18

Category:

Principal judgment

Parties:

193 Liverpool Road Ashfield Pty Ltd (Applicant)

Ashfield Council (Respondent)

Representation:

Counsel:
Mr A Galasso SC (Applicant)

Solicitors:
Mr M Driscoll of BCP Lawyers (Applicant)

Mr P Jackson of Pikes & Verekers Lawyers (Respondent)

File Number(s):

10991 of 2014

Judgment

1. 193 Liverpool Road Ashfield Pty Ltd (applicant) has appealed, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by Ashfield Council (council) of a development application (10.2014.261.1) for the construction of a boarding house at 193-195 Liverpool Road, Ashfield (site).

2. The key issues that remain in dispute between the parties are whether:

1. the vehicular access arrangements will result in unacceptable traffic impacts;

2. the proposal provides adequate parking;

3. the arrangements for waste collection are adequate.

3. During the hearing, the Court raised an additional issue in relation to the permissible maximum building height of the development.

Site and locality

4. The site is irregular in shape with an area of approximately 430sqm and a frontage to Liverpool Road of 10.613m. The rear of the site comprises a 3.66m wide right of way (ROW) which adjoins the rear of 191 and 197 Liverpool Road and the side of 199 Liverpool Road. The ROW provides access to these properties as well as servicing the site. The ROW connects to a laneway at the rear of 183-189 Liverpool Road, which is accessed off Murrell Street. The site is developed with a commercial building which was previously used as a restaurant at ground level but is now vacant and in poor condition.

5. The adjoining development to the east (No. 191) and west (No. 197) are Victorian commercial terraces with ground floor retail, which front Liverpool Road. Adjoining the site to the north of the ROW is a recent mixed use residential and commercial development at 209 Liverpool Road (known as 1 Brown Street).

6. The site is in close proximity to Ashfield Railway Station and Public School and forms part of the commercial centre.

Planning controls

7. The development relies on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Part 2, Division 3 of SEPP ARH - Boarding houses applies to land in the B4 zone (cl 26) and permits boarding houses with consent (cl 28). Clause 29 contains standards that cannot be used to refuse consent, including floor space ratio (FSR), building height, landscaped area, solar access, private open space, parking and accommodation size.

8. Clause 30(1) of SEPP ARH provides standards for boarding houses, including requirements for communal living room, size and occupancy of a boarding room, provision of bicycle and motorcycle parking.

9. Clause 30A requires consideration of whether the design of the development is compatible with the character of the local area.

10. The site is in Zone B4 Mixed Use under Ashfield Local Environmental Plan 2013 (the LEP). Boarding houses, residential flat buildings and shop top housing are permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives for development in the zone.

11. Clause 4.3(2) of the LEP provides that the height of a building is not to exceed the height in the Height of Buildings Map (the Height Map) which specifies a maximum height of 23m. The site is also within “Area 1” under the Height Map. “Area 1” refers to cl 4.3A(2) and (3) of the LEP, which provides an exception to the height of buildings in Ashfield Town Centre and, if applicable, would permit additional height of up to 30m. The proposed development is 30m to the top of the lift motor room. Following questions from the Court, the parties disagree on whether the development is eligible for the “bonus” height under cl 4.3A(3). This matter is discussed further below.

12. Under cl 4.4 of the LEP, the maximum FSR is 3:1. The application, as amended, proposes a FSR of 3.27:1. Clause 29(1)(c)(ii) of SEPP ARH permits an additional 20% of the maximum FSR and consequently the parties agree that the development complies with the maximum FSR of 3.6:1 permissible under SEPP ARH and that this is a development standard that cannot be used to refuse consent.

13. The site is in the vicinity of two heritage items (42 and 56 Liverpool Road) and cl 5.10(5) requires a heritage management document to assess the effect of proposal on the significance of these items.

14. The parties accept that Ashfield Interim Development Policy 2013 (Policy) is relevant, including Part C18-Boarding Houses (C18), Part C11-Parking (C11), Part D1-Planning for Less Waste (D1) and Part C3-Ashfield Town Centre (C3).

Background and proposal

15. Following pre lodgement applications, the development application was submitted to council on 18 September 2018 and the applicant lodged an appeal against council’s deemed refusal on 2 December 2014. The application was refused by council on 9 December 2014.

16. A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) was held but no agreement was reached and the conference was terminated. The applicant subsequently sought and was granted leave to rely on amended plans (Exhibit A), which resolved a number of contentions raised by council. However, the lift overrun exceeded 30m (by 1.6m), which the experts agreed was the height limit under the LEP, and required a written request to vary the standard under cl 4.6 of the LEP. The experts recommended that the lift overrun and floor to floor height be lowered so that the building would not exceed 30m. These changes and further minor amendments were incorporated into further amended plans (Exhibit B), for which leave was granted during the hearing.

17. The Exhibit B plans seek consent to demolish the existing building and construct a part three/part eight storey building to be used as a “boarding house” with retail on part of the ground level. The boarding house comprises 47 boarding rooms, which will be conditioned to be single occupancy, and a Manager’s Room. The proposal provides basement parking for nine cars and two motor cycles and parking for a further two cars and eight motor cycles is to be provided on the adjoining land at 1 Brown Street, over which the applicant will obtain an easement for parking. Vehicular access to the site and the adjoining parking will be obtained via the ROW and the laneway off Murrell Street.

Evidence

18. The Court visited the site and surrounding area. A submission in response to the advertising and notification of the original application was tendered into evidence. The submission raised concerns about the height of the proposal and parking and servicing from the ROW and laneway, which reflect the contentions of council. The submission also raised concerns about the density of the proposal resulting from the number of boarding rooms and impacts of overshadowing, loss of light and noise. These additional matters were addressed by council in its consideration of the application and were not found to be reasons to refuse the application.

19. The Court heard expert planning evidence from Mr W Nino, for the applicant, and Mr P North, for the Council. Mr R Varga, for the applicant, and Mr J Coady, for the council, provided traffic and parking evidence.

Maximum permissible height of building

20. Clause 4.3 of the LEP provides:

4.3 Height of buildings

The objectives of this clause are as follows:

(a) to achieve high quality built form for all buildings,

(b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes,

(c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings,

(d) to maintain satisfactory solar access to existing buildings and public areas.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A) If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area.

21. The maximum height for the site shown on the Height Map is 23m. The site is also identified as being in “Area 1” on the Height Map that refers to cl 4.3A(2) and (3), which provide:

4.3A Exception to maximum height of buildings in Ashfield town centre

(1) The objective of this clause is to increase the supply of affordable rental housing by providing height incentives for the development of certain types of affordable rental housing.

(2) This clause applies to development for the following purposes on land identified as “Area 1” on the Height of Buildings Map:

(a) residential flat buildings,

(b) shop top housing that forms part of a mixed use development.

(3) Despite clause 4.3(2), development consent may be granted to development to which this clause applies that exceeds the maximum height shown for the land on the Height of Buildings Map (the maximum height) by no more than 7 metres if:

(a) the development will contain at least 1 dwelling used for the purpose of affordable rental housing, and

(b) at least 25% of the additional floor space area resulting from the part of the building that exceeds the maximum height will be used for the purpose of affordable rental housing.

(4) In this clause, affordable rental housing has the same meaning as in State Environmental Planning Policy (Affordable Rental Housing) 2009.

22. Mr Galasso SC, for the applicant, and Mr Jackson, for the council, disagree on whether the development is for the purpose of a “residential flat building” or “shop top housing that forms part of a mixed use development” under cl 4.3A(2) and consequently whether cl 4.3A(3) applies so that the maximum height on the Height Map can be exceeded by no more than 7m. They agree that the development satisfies the other requirements of the clause.

23. Mr Galasso referred to a number of cases to support his position that although the application is for a “boarding house” under SEPP ARH, it can also be characterised as a “residential flat building” or “shop top housing” for the purpose of cl 4.3A(2) of the LEP (see Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107, Hawkesbury City Council v Sammut [2002] NSWCA 18).

24. Mr Galasso also submits that cl 4.3 and cl 4.3A must be read together and that the “maximum building height” under the LEP is 30m and therefore consent must not be refused under cl 29(2)(a) of SEPP ARH.

25. Mr Jackson submits that Abret and Wingecarribee are distinguishable as they deal with characterisation of use for the purpose of permissibility. In this case there is no issue of permissibility as “boarding houses”, “residential flat building” and “shop top housing” are permissible within the B4 zone. He referred to Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, where at [27] and [28], Preston CJ states:

27 In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534.

28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the “physical acts by which the land is made to serve some purpose”: at 508.

26. In Mr Jackson’s submission, the development application and the accompanying documents describe the development as being for the purpose of a “boarding house” and any consent would be for this purpose. The development is properly characterised as a “boarding house” and not as “Shop top housing” (see Hrsto v Canterbury City Council (No. 2) [2014] NSWLEC121). The “occupancies” within the development may fall within the definition of “dwelling” under the LEP, however, the proposal is for a suite of “boarding rooms” as defined under SEPP ARH, not for a residential flat building” or “shop top housing”.

27. Furthermore, Mr Jackson submits that the maximum height is determined under cl 4.3(2) and is the 23m referred to in the Height Map. Consequently, the height above 23m could be a grounds for refusal of the application under cl 29(2)(a) of SEPP ARH.

Findings

28. The Dictionary of the LEP relevantly includes the following definitions which are the same as those in the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument):

boarding house means a building that:

(a) is wholly or partly let in lodgings, and

(b) provides lodgers with a principal place of residence for 3 months or more, and

(c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and

(d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers,

but does not include backpackers’ accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment.

Note. Boarding houses are a type of residential accommodation—see the definition of that term in this Dictionary.

residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing.

Note. Residential flat buildings are a type of residential accommodation—see the definition of that term in this Dictionary.

shop top housing means one or more dwellings located above ground floor retail premises or business premises.

Note. Shop top housing is a type of residential accommodation—see the definition of that term in this Dictionary.

29. A “boarding house” and “shop top housing” are nominate permissible uses within the B4 zone. A “residential flat building” is permissible as an innominate use within the B4 zone. All uses require consent and are a form of “residential accommodation” which is defined as:

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following:

(a) attached dwellings,

(b) boarding houses,

(c) dual occupancies,

(d) dwelling houses,

(e) group homes,

(f) hostels,

(g) multi dwelling housing,

(h) residential flat buildings,

(i) rural workers’ dwellings,

(j) secondary dwellings,

(k) semi-detached dwellings,

(l) seniors housing,

(m) shop top housing,

but does not include tourist and visitor accommodation or caravan parks.

30. Both a “residential flat building” and “shop top housing” contain “dwellings” which are defined as:

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

31. Unless separately defined, a word or expression used in SEPP ARH has the same meaning as it has in the Standard Instrument (cl 4(2)). Under cl 4(1) “boarding room” is separately defined as:

boarding room means a room or suite of rooms within a boarding house occupied or so constructed or adapted as to be capable of being occupied by one or more lodgers.

32. “Boarding house” is not separately defined under SEPP ARH but has the same meaning as the definition in the LEP (and the Standard Instrument). “Lodger” or “lodging” is not defined in the Standard Instrument, SEPP ARH or the LEP. They are defined in the Macquarie Dictionary to mean:

Lodger noun someone who lives in hired quarters in another's house.

Lodging noun 1. accommodation in a house, especially in rooms for hire: to furnish board and lodging.

2. a place of abode, especially a temporary one.

3. (plural) a room or rooms hired for residence in another's house.

33. The proposal is described in the supplementary Statement of Environmental Effects dated June 2015 (SEE), which accompanied the amended development application as seeking consent for:

Demolition of existing two storey commercial building and all improvements, and the construction of a part 3/part 8 storey boarding house development comprising one ground floor retail tenancy, 48 boarding house rooms, basement car park, and associated landscaping.

34. The plans that accompany the amended application indicate that the boarding rooms do not contain kitchens or laundries and in their current form are not capable of being occupied as a separate domicile and that communal cooking, laundry and recreation areas are provided in the building. Although the parties agree that the rooms could be adapted to provide kitchenettes.

35. I accept Mr Jackson’s submission that from the description in both the SEE and the plans, the purpose to which the land is seen to serve is a boarding house use. Unlike a “dwelling” within either a “residential flat building” or “shop top housing”, which must be capable of being occupied or used as a separate domicile, a “boarding room” within a “boarding house” is not so constrained, it need only be capable of being occupied by one or more lodgers. While it may contain private kitchens and bathrooms, it does not have to and it clearly does not have to be capable of being occupied or used as a separate domicile. Rather the opposite, in that it may have shared facilities such as communal living room, kitchen or laundry, which the proposal does. The use for which consent is being sought is properly characterised as a “boarding house” for the purpose of both the LEP and SEPP ARH and cl 4.3A(2) of the LEP does not apply as it is not a “residential flat building” or “shop top housing”. Consequently, the development cannot rely on cl 4.3A(3) and the maximum height of the development is that permissible under cl 4.3(2), which is 23m.

36. Furthermore, I do not accept Mr Galasso’s submission that cl 4.3 and cl 4.3A must be read together and that the use of the term “Despite clause 4.3(2)” in cl 4.3A(3) means that the “maximum building height “ permitted under the LEP is 30m and consequently, under cl 29 (2)(a) of SEPP ARH the proposed “building height” of 30m cannot be grounds for refusal of the application.

37. Clause 29(2)(a) of SEPP ARH provides:

(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.

38. Clause 4.3(2) of the LEP provides that the height of a building is not to exceed the “maximum height” for the site shown in the Height Map, which is 23m. The site is also within “Area 1” on the Height Map that refers to cl 4.3A(3) of the LEP, which provides:

(3) Despite clause 4.3 (2), development consent may be granted to development to which this clause applies that exceeds the maximum height shown for the land on the Height of Buildings Map (the maximum height) by no more than 7 metres if:

…..

39. Clause 29(2)(a) of SEPP ARH does not provide a “bonus “ height as it does for FSR under cl 29(1)(c). It only provides that consent cannot be refused on the grounds of height, if the development meets the otherwise applicable height standard in the LEP.

40. While under cl 4.3A(3) of the LEP, consent may be granted to a development with a height of up to 30m, this is not the height standard or the “maximum building height” for the purposes of cl 29(2)(a) of SEPP ARH.

41. Clause 4.3A(3) is expressed in terms of an exception to the maximum height standard shown on the Height Map of the LEP, rather than changing the standard. The operation of cl 4.3A(3) is similar to that of cl 4.6, both permit exceptions to the height standard subject to certain matters being satisfied. Both provide the power to grant consent for development which exceeds the standard. However, both do not replace the standard or establish a new maximum height.

42. The proposal therefore exceeds the maximum height under cl 4.3(2) of the LEP and in the absence of a written request under cl 4.6 to vary the height standard there is no power to approve a development of 30m. Clause 4.6 is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. The Exhibit A plans were accompanied by a cl 4.6 Request for the lift overrun of the development to exceed 30m, which the experts had agreed was the permissible maximum height. However, there is no cl 4.6 Request to exceed the 23m height standard and in the absence of such a request the development application cannot be approved and the appeal must fail.

Other matters

43. If I am wrong in reaching the above conclusion and for completeness, I will briefly discuss the other issues in dispute between the parties.

Vehicular access and traffic impacts.

44. Mr Coady and Mr Varga agree that vehicular access to development should not be from Liverpool Road and that is should be from the rear of the site. However, they disagree on whether the laneway and the ROW are adequate to provide access for the traffic generated by the development and for future development of other land fronting Liverpool Road and whether unacceptable traffic impacts would result.

45. The experts agree that the laneway/ROW is 3.66m wide, is a dead end and is used for two way traffic. The driveway servicing the development is about 43m from Murrell Street and there is no opportunity for vehicles to pass in the laneway. The laneway is in a dilapidated condition but the applicant has agreed to a condition that it be upgraded.

46. In Mr Coady’s opinion, it is essential to provide a passing bay in the laneway/ROW to eliminate the potential for cars to stop on the Murrell Street footpath or reverse back into Murrell Street to avoid conflict between cars exiting the laneway/ROW. He considered that the location of Ashfield Primary School immediately opposite the laneway entrance in Murrell Street increased the need to minimise the potential for pedestrian and vehicular conflict.

47. Mr Coady acknowledged that the level of traffic activity in the laneway/ROW during the weekday peak is only minor but that this is likely to increase as the site and other properties are redeveloped. He noted that the Traffic and Parking Assessment Report (the Report) lodged with the development application estimates that the weekday peak period traffic generation of the proposed development to be 10.8vtph. If the other sites are redeveloped with similar traffic generation potential, the combined traffic demand would be in the order of 50 vtph, which requires a two way road.

48. In Mr Varga’s opinion, the traffic surveys and existing parking indicate that the level of traffic using the laneway/ROW in the peak periods as a result of the proposal is likely to be similar to that previously generated by the site. The peak traffic generation estimate in the Report assumes each of the parking spaces are accessed once within a one hour period. This is unlikely to occur as not all cars will depart or return in the same one hour period, some cars may not be used during the peak periods and the number of car owners may be less than the number of car spaces. The traffic generation from the development will be much lower than the 30vtph threshold in cl 3.2.2 of AS2890.1-2004, which would require two vehicles to pass.

49. Furthermore, Mr Varga considered that because the laneway/ROW is relatively short and straight with clear visibility and because of the low traffic volumes generated by the development it would be unlikely that cars would need to reverse out of the laneway and across the footpath of Murrell Street. The traffic impacts of the redevelopment of other developments fronting Liverpool Road with vehicular access off the laneway/ROW would need to be assessed as part of any development application but would, in his opinion, be unlikely to exceed the 30vtph threshold.

50. Mr Nino and Mr North disagreed on the likely future redevelopment of land which would require access off the laneway/ROW. Mr Nino stated that 183, 187, 189 and 199 are heritage items and therefore unlikely to be redeveloped. Therefore only 185, 197 and 199 are likely to be redeveloped but would not significantly increase traffic generation in the laneway/ROW to warrant its being widened for two way traffic. Mr North stated that the heritage listing of these building is principally their streetscape presentation to Liverpool Road and that the controls in the LEP, by requiring a 12m setback of development above the streetwall, as well as those in the Policy envisage that the rear of these sites would be redeveloped. He accepted that 183 Liverpool Road may have limited redevelopment potential as it also faces Murrell Street. In his opinion, the increase in traffic and widening of the laneway/ROW to accommodate two way traffic needs to be considered as part of any development applications for redevelopment of the land it provides access to.

Waste collection

51. The application includes a Waste Management Plan which proposes that the waste from the commercial premises will be taken along Liverpool Road and the waste from the boarding house will be taken along the laneway/ROW for collection by private services in Murrell Street. To reduce the amount of waste generated and to resolve the contention in relation to the adequacy of the size of the residential garbage room, the applicant has proposed a condition that the boarding rooms be for single occupancy only, even though a number are of sufficient size to be used for double occupancy.

52. Mr Coady considers that it is not acceptable for the waste from the development to be collected outside another property in close proximity to the entrance to the laneway and that this would cause further conflict with cars and pedestrians, particularly if other developments propose the same arrangement. The laneway/ROW is not wide enough for a garbage truck to enter and leave in a forward direction. However, Mr Coady considers that it is preferable that the garbage truck reverse down the laneway to collect the waste from outside the rear of the premises rather than it being collected on Murrell Street. Mr Varga considers that the proposed waste collection arrangements are acceptable and no different to what already occurs in the area. Mr North agreed with Mr Coady’s opinion and Mr Nino agreed with the opinion of Mr Varga.

Parking

53. The application proposes nine car parking spaces and two motor cycle spaces within the development and an easement over land adjoining the ROW, at 1 Brown Street, for parking for two cars and eight motor cycles.

54. Mr Varga referred to the results of a study by Hill PDA (the Study) on the parking demands of other boarding houses. Based on these results, Mr Varga concluded that the parking requirements of the proposal would be met by the spaces provided within the development and that the spaces on the adjoining land were not required.

55. Mr Coady did not accept that the veracity of the Study or that the results justified a reduction in the parking in accordance with SEPP ARH. In his opinion, the use of the adjoining land for parking was only acceptable if it the spaces would be available for use by the development in perpetuity.

56. The planners held different opinion about whether it is acceptable to use the land at 1 Brown Street for parking. Mr North considered that the development should meet the demand for parking on its own site and that the proposal is contrary to the development consent for 1 Brown Street and will reduce the amount of landscaped area available to that development. Mr Nino considered that based on the Study the parking could be reduced but that if additional parking was required, the proposal to use land at 1 Brown Street was acceptable. He recognised that this would require an amendment to the development consent but considered that the change would have no adverse impacts. In his opinion, the area is at a higher level and separate from the development, is in poor condition, overshadowed, not utilised by the residents and provides no benefit to the development or the public domain.

Findings

57. Clause 29(2)(e) of SEPP ARH provides that consent may not be refused for a development in an accessible area which provides at least 0.2 parking spaces for each boarding room. Clause 30(1)(h) requires that consent must not be granted unless at least one parking space will be provided for a bicycle and one for a motor cycle for every five boarding rooms. If the parking on 1 Brown Street is included, the proposal will meet the deemed to satisfy provision in cl 29(2)(e) and the development standard in cl 30(1)(h). If the land is not included the proposal will not provide the motor cycle parking required under cl 30(1)(h), unless the application is amended to include this parking within the building, thereby further reducing the number of car parking spaces or an application under State Environmental Planning Policy No 1 – Development Standards seeking to vary the motor cycle parking standard is made and upheld.

58. If I were to accept Mr Varga’s evidence and the results of the Study, the number of car spaces could be reduced however, it is not within the Court’s power to reduce the number motor cycle spaces in the absence of a SEPP 1 objection to vary the standard in cl 30(1)(h) of SEPP ARH. Consequently, the question is whether the land on 1 Brown Street should be used for parking for the development.

59. The Policy seeks to provide parking on the property, (C11 3.7) and that it be located below ground level in the Ashfield Town Centre (C3 8) and as a general planning principle a development should not rely on land in different ownership to meet its parking needs. The land on 1 Brown Street has not been landscaped in accordance with its consent, is currently in a poor condition and provides little amenity to residents or to the public domain. However, from the evidence, I am not satisfied that the consent should be amended to delete the land as landscaped area, particularly if it was included as site area for the purpose of calculating landscaped area and FSR for the development at 1 Brown Street. If the land were to be appropriately landscaped it would provide greater amenity to the public domain than the proposal to use it for parking (even in a landscaped setting). The area provides the potential for a pedestrian link between the laneway/ROW and a footway behind 197-207 Liverpool Road to Ashfield Station, but it is unclear from the survey information and the development consent whether the land was to be available for public use to facilitate such a link. Furthermore, the land may, at a future stage, provide the opportunity for the ROW to be widened to enable two way access.

60. The development does not generate sufficient traffic to warrant widening of the lane or a passing bay for two way traffic and does not change the existing situation where the single width laneway/ROW provides access for two way traffic. However, the continuation of the existing situation is less than optimal given that there will undoubtedly be times when cars will need to wait in or reverse into Murrell Street to enable cars to exit the laneway/ROW. This has the potential to conflict with the school use opposite and may be exacerbated by the proposal where cars are likely to leave in the morning, whereas the previous use of the site as a restaurant would not have generated traffic at this time.

61. Furthermore, the situation will be further exacerbated by redevelopment of other land, including the heritage items, envisaged under the planning controls, which will also require access from the laneway/ROW. It is hard to understand why the access arrangements and potential widening of the laneway/ROW were not considered as part of the upzoning of the site and surrounding land with increased height and FSR controls to encourage redevelopment. Furthermore, it is unclear how this matter can be considered on a case by case basis as part of each development application, as without the requirement to setback a development, it will not be feasible to widen the laneway/ROW once the threshold under AS 2890.1-2004 is reached. It is preferable that a setback to facilitate two way traffic be considered as part of any future development application for the site, particularly if additional height is proposed.

62. Similarly, the waste collection arrangements are less than desirable due to the constraints imposed by the laneway/ ROW width. However, of itself this would not be a reason to refuse the application.

Orders

1. The appeal is dismissed.

2. The development application (10.2014.261.1) for the construction of a boarding house at 193-195 Liverpool Road, Ashfield is refused.

3. The exhibits, except Exhibit 1, are returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 30 September 2015