Affordable Housing NSW Pty Ltd v Sydney City Council

[2012] NSWLEC 1314

Land and Environment Court

New South Wales

Medium Neutral Citation:

Affordable Housing NSW Pty Ltd v Sydney City Council [2012] NSWLEC 1314

Hearing dates:

30 October 2012

Decision date:

06 November 2012

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal upheld

Catchwords:

Development application, boarding house

Legislation Cited:

Land and Environment Court Act 1979; South Sydney Local Environmental Plan 1998; State Environmental Planning Policy - Affordable Rental Housing (2009); Environmental Planning and Assessment Act 1979

Texts Cited:

South Sydney Development Control Plan 1997: Urban Design

Category:

Principal judgment

Parties:

Affordable Housing NSW Pty Ltd (Applicant)

Sydney City Council (Respondent)

Representation:

Mr M Staunton (Applicant)

Mr S Berverling (Respondent)
Ms J Hewitt
HWL Ebsworth Lawyers (Applicant)

Mr A Singh
City of Sydney (Respondent)

File Number(s):

10760 of 2012

Judgment

1. Affordable Housing NSW Pty Ltd lodged Development Application No 375/2012/DP14 with Sydney City Council on 16 March 2012 seeking consent to construct a 54 room boarding house at No. 80 Parramatta Road, Camperdown. Since that time, the applicant has prepared a number of amended plans attempting to address concerns raised by the council's officers and objections from residents in response to notification of the application. The application remains undetermined and the applicant is appealing its deemed refusal.

1. As the result of a conciliation conference held on 25 September 2012 in accordance with the provisions of the Land and Environment Court Act 1979 (LEC Act), and the amendments made to plans in accordance with agreements made at that conference and reflected in the "Revision F" plans, the majority of contentions in the case have been resolved. Further discussions were held on 30 October 2012 including a site view. Objectors were advised of the opportunity to attend this view however none choose to attend.

1. The council officers did not have delegated authority to enter into an agreement because the building height exceeded 3 storeys. Accordingly, the conciliation conference was terminated. The parties agreed that I determine the matter in accordance with the provisions of s34(4)(b)(ii) of the LEC Act on the basis of what had occurred at the conferences and having regard to the evidence provided in a joint planning report filed on 25 October 2012.

The site and its context

1. The site is located on the north-eastern corner of Parramatta Road and Larkin Street with a rear boundary to Sparkes Street. Site area is 621.6sqm and the land falls from south to north with a level difference of approximately 1.5m. A brick warehouse building erected across the entire site is currently erected on the site. That building includes retail/showroom space along its frontage to Parramatta Road. All site improvements would be demolished as part of the application. A bus stop is located adjacent to the site on Parramatta Road and provides access to nearby centres on a regular basis.

1. Development in the vicinity of the site along Parramatta Road contains a mix of uses including commercial, retail and residential on the upper floors. Sydney University is located directly across Parramatta Road. To the north and east of the site are a number of newer, mixed use developments varying in height from 4 to 6 storeys. A small "pocket" park is located at the northern end of Larkin Street. The older development in the area is lower in height, ranging from 2 - 3 storeys. The site view showed the area is in transition with building activity evident along Larkin Street and a number of recently completed mixed-use buildings.

Background and the proposal

1. The plans now before the Court propose the construction of a part 5 and part 6 storey building above a single level part basement carpark accessed from the rear of the site off Sparkes Street. The building is to be used primarily as a boarding house and also contains an area of retail/commercial floorspace addressing Parramatta Road.

1. Within the basement is provision to park 6 cars, including one accessible space, 5 motorcycles and 12 bicycles with garbage storage and a storeroom also at this level. A lift provides access from the basement to all levels of the building.

1. Ground floor retail/commercial space (74.78sqm) is provided to the Parramatta Road frontage of the site and the boarding house office is located adjacent to the main entry, also off Parramatta Road. A 66.44sqm communal room is proposed on the ground floor in the centre of the building and adjacent to the eastern boundary. That room opens to a communal terrace with an area of 93.83sqm. The terrace is on a level higher than Sparkes Street in response to the site's crossfall. Six boarding house rooms are also proposed at this level. The building is erected to the southern (Parramatta Road), eastern and northern property boundaries and setback 1.975m from Larkin Street. It is intended to grant an easement in favour of the council over that easement as a public benefit thereby increasing the width of the footpath in this location.

1. Level 1 contains 9 boarding rooms, each with individual balconies, a laundry and drying terrace. Room 10 is nominated as a caretaker's unit.

1. The second and fourth levels are identical and contain 12 boarding rooms, all with private balcony spaces and level three is of similar configuration however only 11 rooms are proposed with a communal room provided in the south-western corner. The upper floor is setback from all street frontages and occupies the southern half of the site providing a further five boarding rooms. In total 55 boarding rooms are proposed including the caretaker's unit.

1. All units contain a living/bedroom area, kitchenette, bathroom and, apart from the ground level rooms, a balcony. The development has a maximum height of RL 39.95 at the roof of the lift over-run or around 20m. Floor space ratio (FSR) is 3.012:1.

1. The council re-notified the plans and the issues raised in the submissions received are summarised as follows:

• Proximity to large brothel;
• Concern that boarding house will attract itinerants posing a security risk for residents affecting their amenity;
• Communal rooftop will affect amenity of resident in Sparks Street due to noise;
• Inadequate provision has been made for parking;
• Welcome proposed footpath widening.
• Concerned about the design of building fronting Sparks Street;
• Design, bulk, height and scale considered inappropriate and leading to amenity impacts;
• Increased traffic, rubbish.

The planning controls

1. The site is located in the Mixed Uses 10 Zone under South Sydney Local Environmental Plan 1998 (LEP) and is permissible with consent. The site or the existing buildings are not identified as heritage items under the LEP nor is the site within a conservation area however, it is located in the vicinity of the Sydney University Conservation Area which encompasses the corner of Parramatta and Missenden Roads.

1. The South Sydney Development Control Plan 1997: Urban Design (DCP) applies to the site and imposes a maximum height of 15 metres and floor space ratio of 2:1 on the site.

1. The site is within the B4 - Mixed Use Zone under the Draft Sydney Local Environmental Plan 2011 (draft LEP) and would also be permissible with consent. Under that plan, a maximum height of 18m and FSR of 2.5:1 would be permitted on the site.

1. Whilst not lodged under the provisions of State Environmental Planning Policy - Affordable Rental Housing (2009) (SEPPARH), the provisions of that policy provide for a 0.5:1 bonus FSR.

The evidence

1. A joint planning report was prepared by Ms E Burke for the council and Mr R Player for the applicant. That report addressed all of the contentions in the case and concludes that the development as proposed in the Issue F plans is appropriate for the site. With regard to the building height, they agree that the proposal is acceptable because the sixth level is located towards the Parramatta Road frontage where a similar 6 storey building is located, is generally setback from the building edges, will not create any adverse amenity impacts upon surrounding residents in terms of overshadowing or overlooking and allows for the increased footpath area and street width resulting in better public amenity.

1. They also agree that the minor variation to FSR when compared to that proposed under the draft LEP is acceptable and that the amended building bulk and massing of the development tis now consistent with the character of the area.

1. The planners concur that the façade treatment results in a satisfactory architectural treatment of the building and, subject to imposition of conditions of consent, the operational issues raised by objectors can be satisfactorily addressed. Those conditions require the further refinement of the Plan of Management (POM) proposed, restricting the hours of use of the open, communal terrace, acoustic criteria, limitations on the number of occupants of each room, requiring a resident caretaker and 24 hour contact to caretaker/manager, waste collection, on-site loading and prohibition of participation in resident parking permit scheme. The joint report also addresses the issues raised and concludes the development is consistent with the mixed use area; is acceptable from a drainage/flooding assessment; meets the underlying objectives of the height and FSR controls; proposes generous provision of private and communal open space; is consistent with the provisions of the Environmental Planning and Assessment Act 1979 and incorporates an appropriate level of retail space to activate the streetscape.

1. A contention in relation to the heritage significance of the building has been resolved with the parties agreeing that there is no reason that demolition of the building should not be allowed provided photographic archiving is conducted in accordance with the 'Digital Capture' Guidelines set out by the Heritage Branch and submitted to council. An agreed consent condition has been provided to address this contention.

Conclusion and findings

1. Having regard to the evidence provided, I am satisfied that the amended plans provide a satisfactory resolution to the contentions in the case. As evidenced from the site view, the area is currently undergoing extensive redevelopment and this reflects the council's strategic planning intention for the area. I accept the uncontradicted planning evidence that the design, bulk, height and scale of the development is appropriate for the site and will deliver much needed affordable housing consistent with the Zone 10 objectives under the LEP and the draft LEP. The site is well located in proximity to employment hubs, local centres and enjoys access to a regular bus service. The council is satisfied that the parking provided on site is appropriate for the locality.

1. I am also satisfied that the proposed consent conditions address the operational concerns raised by residents in response to the council's notification process.

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. 375/2012/DP14 for the demolition of an existing building and the construction of a mixed use development comprising retail/commercial floor space and a 55 room boarding house including a caretaker's unit and associated parking at Lot 1 DP 178740, No 80 Parramatta Road, Camperdown, is approved subject to the conditions included in Annexure 'A'.

___________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 06 November 2012