222 Botany Road Pty Ltd v The Council of the City of Sydney

[2020] NSWLEC 1388

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

222 Botany Road Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1388

Hearing dates:

5 August 2020

Date of orders:

26 August 2020

Decision date:

26 August 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The orders of the Court are as follows:

(1) The Court grants leave to rely on amended plans, dated on 4 and 5 August 2020, and the amended Plan of Management, dated 5 August 2020.

(2) The appeal is upheld.

(3) Development Application D/2019/408 for a change in use from three existing commercial tenancies to two serviced apartments including fit-out modifications on Lot 300 in DP 1173184, also known as 68A McEvoy Street, Alexandria is approved, subject to the conditions of consent shown in Annexure A.

(4) The exhibits are returned, except D, E, F, 1, 3 and 6, which are retained.

Catchwords:

DEVELOPMENT APPLICATION – change in use – conversion of commercial units to serviced apartments – amenity – consistency with residential unit standards

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures) Act 2020

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65 – Designed Quality of Residential Apartment Development

Sydney Local Environmental Plan 2012

Texts Cited:

Apartment Design Guide 2015

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

222 Botany Road Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
A Singh (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sydney City Council (Respondent)

File Number(s):

2019/399282

Publication restriction:

No

Judgment

1. COMMISIONER: This is an appeal against refusal of Development Application D/2019/408 (DA) by The Council of the City of Sydney (hereafter the Council) which as amended, seeks a change in use for three existing commercial tenancies to two serviced apartments including fit-out modifications on Lot 300 in DP 1173184, also known as 68A McEvoy Street, Alexandria (hereafter the site).

Background

2. The DA was lodged with Council on 24 April 2019, and after notification, seven submissions in objection were received.

3. On 2 December 2019, the Council formerly refused the DA on the grounds of failure to comply with relevant residential apartment design requirements, amenity impacts, and therefore is not in the public interest.

4. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. In response, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1)(a) of the Land and Environment Court Act 1979 (the Court Act), which was subsequently vacated at the request of the parties, whom considered that agreement could not be reached, based on expert discussions on the contentions raised.

6. The parties agreed for the hearing to proceed with a site view, then remotely by Microsoft Teams. This approach to the hearing procedure is consistent with the Court’s COVID-19 Legislation Amendment (Emergency Measures) Act 2020 and the Court’s COVID-19 Pandemic Arrangements Policy, which commenced on 23 March 2020.

7. Prior to the hearing of the appeal, the applicant sought amendments to the plans and documents that support the DA, for which the Court (Registrar) granted leave to rely on, and which the respondent did not oppose. These amendments thereby modified the proposed development, which is now before the Court in the hearing of this appeal.

8. The development, as amended proposes to change the use of three existing commercial tenancies to: 1 x 2 bedroom (accessible) serviced apartment, becoming apartment 1; and a studio, becoming apartment 2. The proposed development does not seek to alter any external structural walls, although will make internal layout modifications to partition walls, windows and fittings. A platform lift will be installed in apartment 1, a privacy screen will be installed at the driveway entrance on Retreat Street, and both apartments will have translucent glazing on the windows and external planter boxes near the windows.

9. Further to the plan amendments, revised documentation, together with the draft conditions and evidence of the experts, the Council states that the contentions as specified in the Amended Statement of Facts and Contentions (SoFC tendered as Exhibit 1) that are pressed include:

1. unacceptable amenity impacts to future occupants of the serviced apartments due to poor design and inappropriate waste management that is not consistent with a residential apartment;

2. potential amenity impacts to existing residential apartment; and

3. consequently, the proposed development is not in the public interest.

10. As a result of consultation between the experts during the hearing, the issue of waste management was resolved by the amendment of plans to which the Court grants leave to rely on, with no objection of the respondent. These amended plans are included in Exhibit A.

11. After judgement was reserved, the applicant filed, on 5 August 2020, an amended Plan of Management (PoM), as agreed by the parties in the hearing, which is also referenced in the draft conditions of consent. The Court grants leave to rely on the amended PoM, that becomes Exhibit F.

12. Also, the parties filed with the Court on 5 August 2020, a collated set of amended draft conditions of consent, which replace Exhibit 6, and are considered in assessment of the proposed development.

The Site

13. Currently, the site has an existing, mixed use development consisting of commercial tenancies on the ground floor and several levels of residential apartments above the ground floor. The site has basement parking with driveway access from Retreat Street and Wyndham Street.

14. The proposed serviced apartments will be located in the southern portion of the site, facing to Retreat Street (southern boundary), a western boundary wall and the central courtyard (northern aspect). The proposed serviced apartments form part of existing commercial space. Entry to the proposed serviced apartments will be through a pedestrian laneway accessed from Retreat Street.

Relevant Planning Controls

15. The requirements of s 4.15(1) of the EPA Act are relevant for the Court’s consideration, which must be satisfied for the grant of the DA under appeal.

16. The site is located within the B4 Mixed Use zone, as described in the Sydney Local Environmental Plan 2012 (SLEP). Pursuant to cl 2.3 of the SLEP, the proposed development is permissible with consent, and the objectives of the zone are relevant for consideration:

Zone B4 Mixed Use

Objectives of zone

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

17. The aims of the SLEP, as established in cl 1.2, are relevant for consideration, and described below are those that specifically relate to the provision of visitor accommodation:

1.2 Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in the City of Sydney in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.

(2) The particular aims of this Plan are as follows—

..

(b) to support the City of Sydney as an important location for business, educational and cultural activities and tourism,

..

(f) to enable a range of services and infrastructure that meets the needs of residents, workers and visitors,

..

18. The parties agree that the amended design of the hob at the rear of proposed serviced apartment 1, adjacent to Retreat Street, satisfies the requirements of cl 7.15 of the SLEP, and the flooding contention is resolved.

19. The parties also agree that the proposed development complies with the relevant numeric development standards of the SLEP, although the effect of the savings provision in cl 1.8A and cl 7.28 for serviced apartments was the subject of initial dispute, that was subsequently resolved in the hearing. The parties agree that cl 7.28 came into effect after the lodgement of the DA, which is saved by cl 1.8A(c).

20. The Sydney Development Control Plan 2012 (SDCP) is particularly relevant for the Court’s consideration of this appeal, and the parties draw the Court’s attention specifically to the following clauses: 1.1 (purpose); 3.14 (waste); 4.2.3 (residential unit amenity); and 4.4.8 (visitor accommodation).

21. The parties agree that the requirements of the State Environmental Planning Policy No 65 – Designed Quality of Residential Apartment Development (SEPP 65), which is supported by the Apartment Design Guide 2015 (ADG), are not strictly applicable to the proposed development. However, it remains in dispute as to whether the intent of the ADG to protect amenity of the occupants should be considered in the design of the serviced apartments.

22. The site is not located on contaminated land. The parties agree that the information that supports the DA, satisfies the requirements of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). This contention is resolved and not pressed in the hearing.

Evidence

23. The Court was provided written and oral evidence from the respondent’s and applicant’s planning experts, Ms Anna Kaskanlian and Mr Anthony Betros, respectively.

Is the amenity of the proposed serviced apartments and to adjoining residential units acceptable?

24. The Council contends that the proposed serviced apartments provide an unacceptable amenity to future occupants, and the design of the apartments should be consistent with that expected in a residential apartment to reduce amenity impacts. The principal issues with regards to occupant amenity relate to privacy, solar access and noise impacts. The Council is also concerned regarding potential noise impacts to the amenity of existing residents, as raised in objector submissions.

25. The applicant however contends that as these serviced apartments are for short term stay, the requirements of a residential apartment are unduly onerous, not legally required and not appropriate for this type of development. The proposed serviced apartments, as designed satisfy the amenity needs for future occupants and to existing residents.

26. The respondent concedes that the recent amendments to the SLEP, inserting the new cl 7.28 and requirements of the SEPP 65 are not strictly applicable to this DA. However, as the proposed serviced apartments could in the future be converted to residential units, Ms Kaskanlian considers that the amenity of the serviced apartments should be high and comparable, as established in the SDCP in clause 4.4.8.

27. Her concern for the serviced apartments relates to the lack of private open space, poor design without significant modification that results in internal amenity impacts from insufficient solar access to proposed apartment 2, due to poor orientation, and noise to apartment 1, due to proximity to communal open space and basement driveway. Therefore, the serviced apartments do not provide for the safety and health of future occupants.

28. Mr Betros however considers the design is acceptable for the proposed (short stay) purpose, and whilst a better design could be made if newly constructed, the proposed conversion of these existing spaces does provide an acceptable amenity to occupants for a short term stay.

29. The parties agree that the proposed serviced apartments will not form part of the existing strata plan for residential apartments on the site, and will be managed separately to both the residential units and the commercial units, through the PoM, with a dedicated managing agent.

30. The parties rely on and are in dispute regarding the relevant clauses (shown in italics below) of the SDCP, specifically clauses 4.4.8 (objectives) and 4.4.8.5 (additional provisions for serviced apartments):

4.4.8 Visitor accommodation

The following objectives and provisions apply to visitor accommodation including the conversion, alterations or additions to existing visitor accommodation. Visitor accommodation includes …. serviced apartments for the temporary accommodation of travellers, visitors and tourists.

Objectives

(a) Ensure the design, development and management of visitor accommodation provides acceptable levels of health, safety, cleanliness, amenity and administration for guests, whilst not adversely impacting on the amenity of the surrounding locality.

(b) Ensure serviced apartment developments provide a level of health and amenity for residents to ensure any future conversion to residential flats is not compromised by poor amenity.

..

4.4.8.5 Additional provisions for serviced apartments

(1) The maximum number of persons accommodated in a bedroom or dormitory is to be determined on the basis of a minimum of:

(a) 5.5sqm per occupant staying more than 28 consecutive days;

(b) or 3.25sqm per occupant staying 28 or less consecutive days in accordance with the Public Health (General) Regulation 2002.

(2) Serviced apartments are to be designed so that the level of residential amenity within each apartment is equivalent to the requirements of a residential flat development.

(3) Visitor accommodation including serviced apartments and residential apartments must not to co-exist on the same floor of any building. The two uses may only co-exist in the same building if:

(a) each use is wholly located on separate floors;

(b) they are serviced from the street by separate foyers, lift access and circulation; and

(c) it can be demonstrated, through an approved Plan of Management, that the visitor accommodation will not reduce the quiet enjoyment of uses by implementing appropriate measures. Where no approved Plan of Management for the visitor accommodation exists, then the introduction of residential uses into that building, either through additional floor area or change of use, is not permitted unless it is for the entire building.

..

(6) Provide a wash tub, washing machine and clothes dryer or clothesline within each apartment.

(7) Provide a garbage room or garbage receptacle storage area with space for recyclables.

(8) Each bedroom is not to accommodate more than two adults and one child.

(9) A sign advising the maximum residential capacity of each bedroom is to be displayed on each bedroom door or other obvious locations within the apartment.

(10) A Plan of Management must be submitted with every application for a serviced apartment describing how on-going operations are to be managed with regard to:

(a) ensuring maximum occupancy requirements are not exceeded;

(b) minimising the impact of noise from the premises to adjoining properties;

(c) waste minimisation, storage and collection procedures;

(d) staffing arrangements including the number of staff to be employed;

(e) any proposed shuttle service providing a pick up and drop off service to guests, including details of the timetable and set down arrangements;

(f) the maintenance and cleanliness of the premises;

(g) ensuring the on-going workability of emergency systems including lighting and smoke detectors, sprinkler systems, and air conditioning;

(h) ensuring staff are trained in relation to the operation of the approved Emergency Management and Evacuation Plan;

(i) ensuring the placement and composition of furnishing and fittings achieve the appropriate fire safety requirements;

(j) ensuring premises are regularly checked to ensure fire safety including that all required exits and egress paths are clear and free of locks and obstructions; and

(k) on-site security.

31. The experts agree that neither the SLEP, nor SDCP provide a definition of short term or temporary stay as it relates to serviced apartments, specifically with regards to a time frame. The applicant has addressed this issue in the PoM by adopting three (3) months as the maximum period for stay in the serviced apartment. There is no dispute between the experts that this time frame is reasonable for a short term stay.

32. The experts do not agree that the design specifications in the ADG, which supports the SEPP 65, are relevant for consideration in this appeal. Ms Kaskanlian relies on amenity guidelines in the following sections of the ADG to inform her assessment: 3F (visual privacy); 4D (apartment size and layout); 4E (private open space and balconies); and 4H (acoustic privacy).

33. The purpose of the SDCP in guiding development on the site is explained in s 3.42 of the EPA Act, below, and clause 1.1 of the SDCP:

3.42 Purpose and status of development control plans (cf previous s 74BA)

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

(2) The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43(1)(b)–(e).

34. I don’t give much weight to Ms Kaskanlian’s assessment that the serviced apartments must be assessed as if they are residential apartments because they may in the future be converted to such, and therefore the ADG should be considered. Equally, these serviced apartments, when the business situation becomes more favourable, may be converted back to commercial tenancies, as previously approved on the site. I have no crystal ball to envisage what the future of these serviced apartments will become, except to determine that they should be fit for purpose as short term stay accommodation. I am guided by the SDCP to consider the amenity of the serviced apartments, which must be ‘equivalent’ to residential apartments.

35. I also do not accept Mr Betros’ evidence that because the occupants are only there for a short term, they cannot expect the same level of amenity as residents in a residential apartment. Amenity is a basic right of all persons, as is safety and health. The SDCP seeks to ensure adequate provisions are made to protect occupants of serviced apartments, and I find these applicable in my assessment.

36. I accept the position of the parties that the newly included cl 7.28 of the SLEP is not relevant and should be given no weight in the assessment of this DA, due to the time of DA lodgement and the savings provision in cl 1.8A. As a consequence, the design guidelines provided in the ADG that supports the SEPP 65, are not relevant in my consideration in this appeal.

37. I also accept that the numeric provisions of the SLEP are satisfied, therefore the SDCP provides the relevant framework to assess this development under appeal with respect to amenity.

38. Clause 4.4.8 of the SDCP provides no specific provisions for amenity in visitor accommodation, however the objective requires provision of ‘acceptable levels of health, safety, cleanliness and amenity’, and for serviced apartments specifically, an amenity that is ‘equivalent’ to residential flat/apartments. The requirements for amenity of serviced apartments therefore must be assessed against the clauses in the SDCP that relate to residential apartments.

39. The relevant objectives and provisions for residential apartments as they relate to amenity are described in clause 4.2.3 of the SDCP, and specifically for solar access, acoustic privacy and outlook, which are in dispute, are described as:

4.2.3 Amenity

Objective

(a) Ensure that residential amenity is enhanced with landscaping, private and common open space, sun access, ventilation and acoustic privacy.

4.2.3.1 Solar access

(1) Development applications are to include diagrams in plan and elevation that show solar access to proposed apartments and the shadow impact on neighbouring development at hourly intervals between 9am, 12noon and 3pm on 22 March and 21 June. In some cases, Council may require hourly intervals.

(2) Proposed apartments in a development and neighbouring developments must achieve a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June onto at least 1sqm of living room windows and a minimum 50% of the required minimum area of private open space area.

Note: This provision applies to at least 70% of the apartments in a development (in accordance with the requirements of the NSW Residential Flat Design Code 2002).

(3) New development must not create any additional overshadowing onto a neighbouring dwelling where that dwelling currently receives less than 2 hours direct sunlight to habitable rooms and 50% of the private open space between 9am and 3pm on 21 June.

(4) Where the consent authority considers that the level of daylight access to living rooms of proposed dwellings may be inadequate, the applicant will be required to provide a Daylight Report. A Daylight Report is to include an analysis of daylight levels in principal living spaces of residential units and serviced apartments with and compliance with the DCP

…

4.2.3.10 Outlook

(1) Provide a pleasant outlook, as distinct from views, from all apartments.

(2) Views and outlooks from existing residential development should be considered in the site planning and massing of new development.

Note: Outlook is a short range prospect, such as building to building, while views are more extensive or long range to particular objects or geographic features.

4.2.3.11 Acoustic privacy

(1) A Noise Impact Assessment prepared by a suitably qualified acoustic consultant may be required when submitting a development application for commercial and retail uses which may affect the acoustic privacy of the adjacent residential use.

(2) Where necessary, a residential development is to include acoustic measures to reduce the impact of noise from existing or planned external sources (for example busy roads, adjoining industries, live music venues and public parks and plazas in which people may congregate or host live music or events).

(3) Development is to incorporate measures that reduce the entry of noise from external sources into dwellings.

(4) Where possible, the attenuation of noise at its source is preferred. Where this option is adopted, the applicant will need to demonstrate that the measures to be undertaken:

(a) have the consent of relevant parties associated with that noise source; and

(b) last for the life of the development proposal.

(7) The repeatable maximum LAeq (1 hour) for residential buildings and serviced apartments must not exceed the following levels:

(a) for closed windows and doors:

(i) 35dB for bedrooms (10pm-7am); and

(ii) 45dB for main living areas (24 hours).

(b) for open windows and doors:

(i) 45dB for bedrooms (10pm-7am); and

(ii) 55dB for main living areas (24 hours).

(8) Where natural ventilation of a room cannot be achieved, the repeatable maximum LAeq (1hour) level in a dwelling when doors and windows are shut and air conditioning is operating must not exceed:

(a) 38dB for bedrooms (10pm-7am); and

(b) 48dB for main living areas (24 hours).

(9) These levels are to include the combined measured level of noise from both external sources and the ventilation system operating normally.

(10) To limit the transmission of noise to and between dwellings, all floors are to have a weighted standardised impact sound level (L’nT,w) less than or equal to 55 where the floor separates a habitable room and another habitable room, bathroom, toilet, laundry, kitchen, plant room, stairway, public corridor, hallway and the like.

(11) The overall design and layout of dwellings, where appropriate, is to include:

(a) a limit on window size and number where oriented towards an intrusive noise source;

(b) seals at entry doors to reduce noise transmission from common corridors or outside the building;

(c) minimisation of the number of shared walls with other dwelling units;

(d) storage, circulation areas, and non habitable rooms to buffer noise from external sources;

(e) double or acoustic glazing; and

(f) operable acoustic screens to balconies.

(12) Mixed-use development which includes two or more dwellings is to provide separate lift access and a separate entrance for use exclusively for the dwellings.

40. I accept that apartment 2 does not have a scenic outlook, because it is oriented towards a large concrete wall. However, the windows of the apartment/s are proposed to be partially covered by translucent film, thereby restricting the direct outlook and the proposed planter boxes will have some effect to soften the external outlook when entering the apartments. I consider the outlook of the proposed serviced apartments is acceptable and will not have a detrimental effect on health or wellbeing of the occupants.

41. With regards to solar access, I have no supporting documentation in the DA nor provided in evidence to quantify the sunlight provision to the serviced apartments. Therefore, consistency with clause 4.2.3.1(1) and (4) of the SDCP requires to be addressed.

42. The experts agree that apartment 2 is unlikely to achieve two hours of sunlight to the living area between 9 am and 3 pm. The experts also agree that this non-compliance reflects the existing design and orientation of the apartment space, being on the ground floor with a westerly aspect, located close to a high concrete wall. Therefore, it is accepted that the two serviced apartments would together not achieve a 70% compliance for solar access, as described in clause 4.3.2.1(2) of the SDCP.

43. I have no evidence to indicate whether the existing development on the site as a whole complies with the solar access requirements, as posed by Ms Kaskanlian. However, I find this argument is somewhat irrelevant because these serviced apartments are not part of the strata plan of the residential apartments on the site and therefore must be assessed individually. The parties agree that apartment 1 would likely comply with solar access requirements, therefore 50% of the proposed development complies with clause 4.2.3.1 of the SDCP. I find the solar access to the proposed serviced apartments is acceptable, as no amount of modification to apartment 2 would attain the 70% solar access compliance.

44. The experts do not agree whether bedroom 2 in apartment 1 will be impacted by noise from the basement driveway on Retreat Street and the living area and bedroom 1 by the communal space. Again, I have not been provided with sufficient relevant information to be informed on the serviced apartment’s compliance with clause 4.2.3.11 of the SDCP for acoustic privacy.

45. The parties do not however consider this lack of information fatal to the grant of consent of the DA. The respondent resolves clause 4.2.3.11(11) of the SDCP by draft condition (14) of consent, which requires an acoustic assessment. The applicant opposes this condition on the grounds of unnecessary expense and relies on an acoustic report by a Mr Candalepas that supports the DA. I note that the acoustic report relied on by the applicant only relates to the precast panelling impact and not the windows for noise compliance, and did not involve any testing. I also note that the proposed draft condition does not require any mitigation as needed to achieve acoustic privacy

46. Considering that the areas to be converted to serviced apartments were originally designed for commercial use and have minimal acoustic treatment, I find that the design described in clause 4.2.3.11 is relevant to ensure acceptable acoustic privacy for the serviced apartments. I am satisfied by the proposed condition (14) of consent to address acoustic privacy, with additional mitigation provisions, can satisfy the acoustic privacy requirements for the serviced apartments, and therefore protect the health and amenity of occupants.

47. The details contained in the PoM, as described in the conditions of consent, are sufficient to address the requirements of clause 4.4.8.5(10) of the SCDP, which was in dispute between the experts.

48. I accept that the requirements of SEPP 65 do not apply, and that the relevant amenity provisions in the SDCP for residential units are not statutory. The objectives and the provisions of the SDCP however give effect to the aims of the SLEP and achieve the objectives of the zone.

49. To grant consent to the DA, the Court must be satisfied that the amenity of the serviced apartments is ‘equivalent’ to a residential unit and is provided at an acceptable level to maintain health and safety for the occupants, as described in the SDCP.

50. Despite the lack of detailed information regarding solar access and noise, I am satisfied by the evidence of the experts, my observations on site, documents supporting the DA, and conditions of consent that the amenity of the proposed serviced apartments is acceptable to protect the occupants and equivalent to residential amenity as observed on the site, .

51. After review of the expert evidence and submissions made by the parties, I find that the proposed change in use as sought in this appeal for serviced apartments, is also acceptable to protect the amenity of existing residents. The implementation of the PoM, which includes a complaints mechanism is appropriate to address resident concerns.

52. I am satisfied that the objectives of clause 4.2.3 of the SDCP are achieved, specifically that serviced apartments provide an acceptable level of health and amenity to occupants and amenity is equivalent to a residential unit. I recognise that the site is constrained by its proximity to busy roads, existing developments and heritage items. Also, the proposed space is existing and stay is limited to three months.

53. I find that the proposed development satisfies the relevant aims of the SLEP as set out in cl 1.2(2), and specifically, (b) and (f) as they relate to visitors. I also find that the proposed development is not incompatible with the objectives of the B4 zone, as described in cl 2.3 of the SLEP.

54. I accept that the design and conversion of these serviced apartments to residential apartments in the future would be subject of a separate DA, by which the requirements of the relevant provisions of EPA Act, SLEP and SDCP will be considered. Therefore, the Court makes no determination on the details of future conversion except as it relates to the assessment of acceptable amenity.

55. Based on the evidence before me, I find that the proposed change in use from three commercial tenancies/units to two serviced apartments as proposed in the DA under appeal, satisfies the requirements of subss 4.15(1)(a)(i) and (iii) of the EPA Act.

Is proposed change in use in the public interest?

56. The Council contends that due to the potential adverse amenity impact to occupants in the serviced apartments and adjoining existing residents, the proposed change in use is not in the public interest.

57. I find that, consistent with the determination made above, the proposed development is in the public interest. The submissions made in objection by the residents following notification of the DA are resolved to my satisfaction based on assessment of the evidence before me.

58. Therefore, the proposed development satisfies s 4.15(1)(e) of the EPA Act.

Conditions of Consent

59. The parties filed a collated version of conditions of consent, on 5 August 2020. This is the version of conditions considered by the Court below.

60. The Court accepts the conditions that are agreed, and makes a determination regarding the condition in dispute, below:

1. Condition 14 – the Court re-instates the Councils preferred wording, in addition to the following which is included in (a)

Based on the results of the acoustic assessment, the serviced apartments are to be modified, as required, to mitigate any adverse noise impacts in excess of that deemed acceptable, being 35dB for bedroom areas (between 10pm-7am) and 45dB for main living areas (in over 24 hours), when windows and doors are closed.

61. The grant of the DA relies on the conditions of consent as approved, which are provided in Annexure A of the Court orders.

Conclusion

62. The proposed development has been assessed by the Court, based on the evidence provided, including the DA’s (amended) supporting plans, documents, expert report and observations made at the site visit.

63. I have considered the relevant sections of the EPA Act in my assessment of this appeal. I am satisfied that the proposed development is consistent with the relevant provisions of the EPA Act to grant consent to the DA under appeal, and specifically satisfies subss 4.15(1)(a)(i), (1)(a)(iii), and (1)(e), which were in dispute between the parties.

64. The appeal that relates to DA D/2019/408, being a change in use from three commercial tenancies to two serviced apartments, is approved with conditions, pursuant to subs 4.16(1)(a) of the EPA Act. The proposed development, as it is intended to be carried out, does not result in a contravention of the EPA Act.

Orders

65. Consequently, the orders of the Court are as follows:

1. The Court grants leave to rely on amended plans, dated on 4 and 5 August 2020, and amended Plan of Management, dated 5 August 2020.

2. The appeal is upheld.

3. Development Application D/2019/408 for a change in use from three existing commercial tenancies to two serviced apartments with fit-out modifications on Lot 300 in DP 1173184, also known as 68A McEvoy Street, Alexandria is approved, subject to the conditions of consent shown in Annexure A.

4. The exhibits are returned, except D, E, F, 1, 3 and 6, which are retained.

…………………….

Sarah Bish

Commissioner of the Court

Annexure A (197342, pdf)

Plans (4209616, pdf)

**********

Amendments

14 September 2020 - Pursuant to UCPR 36.17 of the Uniform Civil Procedure Rules 2005, by the Court’s own motion, amend the Court’s paragraphs 8 and 44 of the Judgment by correcting the reference to apartment 1 as a two bedroom serviced apartment, so that the paragraphs 8 and 44 of the judgment now reads:

[8] The development, as amended proposes to change the use of three existing commercial tenancies to: 1 x 2 bedroom (accessible) serviced apartment, becoming apartment 1; and a studio, becoming apartment 2. The proposed development does not seek to alter any external structural walls, although will make internal layout modifications to partition walls, windows and fittings. A platform lift will be installed in apartment 1, a privacy screen will be installed at the driveway entrance on Retreat Street, and both apartments will have translucent glazing on the windows and external planter boxes near the windows.

[44] The experts do not agree whether bedroom 2 in apartment 1 will be impacted by noise from the basement driveway on Retreat Street and the living area and bedroom 1 by the communal space. Again, I have not been provided with sufficient relevant information to be informed on the serviced apartment’s compliance with clause 4.2.3.11 of the SDCP for acoustic privacy.

Decision last updated: 14 September 2020