Boensch v Parramatta City Council (No 2)

[2013] NSWLEC 1262

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boensch v Parramatta City Council (No 2) [2013] NSWLEC 1262

Hearing dates:

12, 13 November 2013

Decision date:

19 November 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

For Appeal No 10557 of 2012, the orders are:

1.The appeal is dismissed.

2. DA/377/2011 for the construction of an additional level and the use of the new level and an existing level as a 16-room boarding house and ancillary uses in an approved, but not constructed building at 225 Victoria Road Rydalmere is refused.

3. The exhibits are returned with the exception of exhibit A.

For Appeal No 10558 of 2012, the orders are:

1. 1.The appeal is dismissed.

2. DA/376/2011 for fit-out and use of three food outlets in the approved, but not constructed building at 225 Victoria Road Rydalmere is refused.

3. The exhibits are returned with the exception of exhibit A.

Catchwords:

DEVELOPMENT APPLICATIONS: the construction of an additional floor within an approved development and use of the resulting levels (Levels 2 and 3) as a 16 room boarding house (Appeal No 10557of 2012) - fit-out and use of three food outlets (Appeal No 10558of 2012) - weight to be given to draft environmental planning instrument -- flooding - car parking

Legislation Cited:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2011
State Environmental Planning Policy (Affordable Rental Housing) 2009
Sydney Regional Environmental Plan No 28 - Parramatta

Cases Cited:

Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289

Category:

Principal judgment

Parties:

Franz Boensch (Applicant)
Parramatta City Council (Respondent)

Representation:

In person (Applicant)
Mr C Drury, solicitor (Respondent)
- (Applicant)
Sparke Helmore (Respondent)

File Number(s):

10557 of 2012, 10558 of 2012

Judgment

1. COMMISSIONER: These are two separate but related appeals in relation to the refusal by Parramatta City Council (the council) for alterations and additions and the change of use of part of an approved, but not constructed building at 225 Victoria Road Rydalmere (the site). The appeals were heard concurrently.

1. The history of the site and the approval relied upon by the applicant are relevant and can be summarised as follows:

• In June 1996, development application DA 333/1996 was lodged with council.
• On 8 May 1998 development application DA 333/1996 was approved by council (the 1998 approval) as:

Erect a building of four (4) levels to be used for motor vehicle storage and repairs, and two (2) residential units.

The approval provided for a three level building above a ground floor containing a workshop and unloading bay for trucks (677m2), the first floor contained a reception, two bedroom dwelling, two offices (424m2) and a large void area, the second floor was occupied by parking for 10 spaces and a disabled space (764m2), and the third floor contained a 3 bedroom residence (312m2).

• Construction Certificate 222/02 was issued for the development on 31 October 2002. The applicant began construction of footings associated with the 1998 approval and these footings were inspected by council on 7 May 2003 and the applicant/owner was advised by council that it was satisfied that works of a "substantial" nature had commenced on site. No substantial additional work has been carried out on site since 2003.
• On 7 June 2011, development applications DA/377/2011 and DA/376/2011 were lodged with the council.
• On 12 December 2011, the council refused development applications DA/377/2011 and DA/376/2011.
• On 12 June 2012, appeals were lodged against the refusal of development applications DA/377/2011 (Appeal No 10557of 2012) and DA/376/2011 (Appeal No 10558of 2012).

1. Appeal No 10557of 2012 (DA/377/2011) (the boarding house appeal) seeks approval for:

• the construction of an additional level (Level 3 at RL 12.570) between the second level (RL 9.570) and third level (RL 15.570) on the 1998 approval;
• the use of Level 2 and new Level 3 as a 16 room boarding house and ancillary facilities.
• on Level 2, the provision of 16 self-contained accommodation style units, a coin operated laundry, and a central common area;
• on new level 3, the provision of 2 common lounge rooms, a study, common open space in the form of a balcony, and an entertainment area.

1. Appeal No 10558 of 2012 (DA/376/2011) (the food court appeal) seeks approval for the occupation of Level 1 as a food court that involves:

• fit-out and use of three food outlets around an open cafeteria style eating area with 24 seats and a disabled parking space .
• operating hours of 6am to midnight, 7 days per week.

1. Both appeals rely on the ground basement floor for parking where this level has six vertical stackers to provide 12 spaces, two vertical stackers to provide 4 spaces and a loading dock off the unnamed lane

1. The major areas retained from the 1998 approval consist of the ground floor workshops although in a different configuration brought about by the proposed parking, the offices and reception area and the dwellings on Level 1 and Level 4.

The contentions

1. The council raised the following matters in their contentions in relation to the appeals:

• the weight to be given to the current environmental planning instrument that prohibits boarding houses on the site, including the impact on the character of the area,
• insufficient evidence to show that the use is suitable given the potential for flooding, and
• inadequate of street car parking.

1. The council accepted that the contentions relating to contamination and the substandard level of amenity for future residents could be addressed by way of additional conditions of consent. The contention relating to compliance with the Building Code of Australia was addressed through further information.

The site

1. The site is Lot 37 and 38 in DP 14244. It is an irregular allotment of land with two frontages, a 12m frontage to Victoria Road and a 32m frontage to the unnamed rear laneway giving an overall area of 780m2. Access from Victoria Road is provided via a 3m wide driveway located off the westbound slip lane from Victoria Road. The site slopes steeply away from Victoria Road towards Subiaco Creek located to the east.

1. The site contains a two-storey commercial building located on its western half, and an awning and motor vehicle and car parts storage yard on the eastern half of the site. Since 1958, uses for which development consent has been issued on the site include a rubber mill, a factory, a plastic manufacturing business, electrical engineering, a printing factory, wood turning and painting, and a mechanical repair station with body repairs.

1. The current pattern of development along this side of Victoria Road, in the vicinity of the site, comprises light industrial developments consisting of lawn mower and storage premises as well as a service station. The site is within an area generally defined to the east by Subiaco Creek, to the north by Victoria Road, to the west by the Carlingford Railway Line, and to the south by the Parramatta River. This area is characterised by industrial land uses, although some remnant dwellings are located on Bridge Street, and the area contains some restricted premises.

Relevant planning controls

1. The site is within Zone IN2 Light Industrial under Parramatta Local Environmental Plan 2011 (LEP 2011), which was gazetted on 7 October 2011. A boarding house is prohibited in this zone. The objectives of the IN2 zone are:

· To provide a wide range of light industrial, warehouse and related land uses.

· To encourage employment opportunities and to support the viability of centres.

· To minimise any adverse effect of industry on other land uses.

· To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

· To support and protect industrial land for industrial uses.

1. As the development was lodged with the council on 7 June 2011 and the application had not been finally determined before the commencement of LEP 2011, the application falls within the provisions of cl 1.8A that states:

1.8A Savings provision relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

1. The environmental planning instrument that applied to the site prior to LEP 2011 was Sydney Regional Environmental Plan No 28 - Parramatta (SREP 28). Under SREP 28 the site was within the Business and Transport Centre zone. A boarding house was permissible in this zone. The objectives of this zone are:

(a) to provide opportunities for mutually supportive retail, commercial, residential, light industrial, transport and community facility development,

(b) to integrate the zone with, and to encourage usage of, public transport and pedestrian networks,

(c) to comply with any controls for Special Areas as set out in this Part.

1. The site is also located within the Victoria Special Area and the Rydalmere Station and Environs Special Area under SREP 28 where specific provisions are found at cll 40S and 40U respectively.

The weight to be given to LEP 2011

The assessment approach

1. There was no dispute that cl 1.8A applies and that LEP 2011 is a mandatory consideration in the assessment of the application under s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142).

1. The weight to be attributed to a draft environmental planning instrument (or LEP 2011, in this case) will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that:

6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.

7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

1. If the draft LEP is imminent and certain (which it must be, given that it is currently in force), Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by the IN2 zone and whether the proposed development will undermine the objectives of this zone.

1. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).

31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.

32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.

33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.

34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):

Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.

1. His Honour further stated (at par [35]):

...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.

36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.

Findings

1. The questions to be answered are firstly, as LEP 2011 is imminent and certain, what weight should LEP 2011 be given in the consideration of the application and secondly, whether the proposal undermines the expressed future planning objectives for the area as set out in LEP 2011.

1. On the first question, I am satisfied that significant weight should be given to LEP 2011. This environmental planning instrument represents the councils future strategic direction for the site and surrounding area. It was prepared in draft form, endorsed by the council and the Department of Planning for advertising, advertised and submissions considered by the council and ultimately gazetted in the form considered appropriate by the council and the Department of Planning. Put simply, the councils future strategic direction for the site is represented by the form of development anticipated by the IN2 zone in LEP 2011.

1. The second question asks whether the proposal undermines the expressed future planning objectives for the area as set out in LEP 2011. In this regard, I have little trouble in concluding that the answer must be "yes". While SREP 28 contemplated different forms of residential accommodation, including boarding houses, LEP 2011 adopts a totally different approach. The objectives for the IN2 zone make no reference to residential uses. The objectives focus exclusively on industrial uses by providing a wide range of light industrial uses, encouraging employment opportunities, providing support services for industrial workers and importantly, supporting and protecting industrial land for industrial uses.

1. Further confirmation of this changed approach is found in the zoning table where "residential accommodation" is a prohibited use in this zone. I note that the definition of "residential accommodation" includes many forms of residential development, including boarding houses.

1. Also, under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP-ARH), the IN2 zone is not a zone identified in cl 26 as a zone where the boarding house provisions of SEPP-ARH apply.

1. Consistent with the comments in Blackmore Design Group (at par [35]), I can comfortably conclude that the boarding house appeal is inconsistent with the expressed future planning objectives for the area, and the extent of the inconsistency is so great that the appeal should be rejected for this reason alone.

1. While the planning experts, Mr Liam Frayne, for the council and Mr Ben Tesoriero, for the applicant, undertook a detailed analysis of the impact of the development on the existing character of the area, with different results, I am not sure that this assessment responds to the comments in Terrace Tower and Blackmore Design Group where the focus is on the future objectives and desired character contemplated by the draft planning instrument and specifically the zone in which the site is located. This can only be achieved through a reference to the zone objectives and the permissible land uses for the site under the draft planning instrument. In this context, Mr Frayne was more correct in restricting his analysis of character to the industrial area to the south of Victoria Road that more closely reflected the IN2 zone rather than wider area relied upon by Mr Tesoriero that included the residential area on the northern side of Victoria Road.

1. I will briefly deal with the other contested contentions.

Flooding

The evidence

1. Evidence on flooding was provided by engineers Mr Charan Flora for the applicant and Mr Elie Azzi for the council. They provided a joint report that identified the main matter in dispute as the flood inundation of the ground level as this poses an unacceptable risk to public safety.

1. Mr Azzi states that the proposal is in conflict with the councils Local Floodplain Risk Management Policy (the Policy) as the flood information indicates that the ground floor of the premises at 3.12 m AHD (Australian Height Datum) would be inundated to approximately 1.0 m in 1 in 2 year ARI (Annual Recurrence Interval) storm events, a depth of 2.28 m in 1 in 20 year ARI storm events and to a depth of 2.95 m in 1 in 100 year ARI storm events.

1. Further, no information has been provided on the flow velocity of flood waters at the site. Given the high flood depth it is noted that the product of velocity and depth is likely to be very high. Clause 1.10.4 of the publication Australian Rainfall and Runoff (The Institution of Engineers Australia) states that in order to prevent pedestrians being swept away, the product of velocity and depth should not exceed 0.4m2/s. In this case, given the flood water depth of approximately 3m at this location in the 1 in 100 year ARI storm event, any water velocity above 0.13m/s would result in a high flood hazard. A velocity of 0.13m/s is considered to be almost stagnant water and would not occur during a storm event in creek conditions.

1. Also, the proposed installation of screens on the wall adjacent to Subiaco Creek is not supported due to the loss of flood storage, changes in flood levels, increase in velocity caused by alterations to the flood flows and the cumulative impact on the adjacent properties.

1. For these reasons the use of the ground floor as part of the proposed use and fit out is considered to pose an unsatisfactory risk to human life and property in the event of a flood.

1. Mr Flora comes to a different conclusion. He states that during 1 in 2 year ARI storm event, the storm water will flow with the hydraulic gradient, as downstream is not in flood, so there is no likelihood of the ground floor becoming inundated. Since the 1 in 100 year flood level of RL 6.07 is calculated based on the flood water backing up due to the Parramatta River under flood, the velocity as calculated will be very low, as the hydraulic gradient will be negligible.

1. Mr Flora notes that the calculated velocities in the 1994 Cullen Grummitt & Roe flooding report (CGR report) for the site, provided as part of the documentation submitted for DA96/00333, are based on the free hydraulic gradient, hence cannot be referred to the actual flooding condition, which occurs when downstream stretches of the creek and Parramatta River are flooded.

1. Also, in his opinion, cl 1.10.4 in Australian Rainfall and Runoff cannot be applied in this case as the clause is relevant only for situations such as pedestrians crossing flooded pathways and not an enclosed space with evacuation procedures in place for flooding events.

Findings

1. In considering the different opinions of the experts, I prefer the approach of Mr Azzi foe a number of reasons. First, I reject the submission that Mr Azzi is not sufficiently experienced or qualified to make the conclusions he has made. A cursory look at his curriculum vitae is enough to refute this claim.

1. Second, the criticism that Mr Azzi overly relied on his referrals to the Policy cannot be a criticism as it is a relevant document in the consideration of this issue. In my view, Mr Azzi could be properly criticised if he did not refer to the Policy in his consideration. I note that s 76(1)(a) of SREP 28 makes specific reference to council flood policies and allows an application to be refused if an application is "inconsistent with any policy or floodplain risk management plan adopted by Parramatta City Council..."

1. Third, the onus rests with the applicant to show why the application should be approved not with the council to show why it should be rejected. I accept that insufficient information was provided to show that the flooding impacts are acceptable. The only available flood data was from firstly, the Subiaco Creek Flood Study commissioned by Parramatta Council in November 1990 that calculated the velocity to be approximately 0.2m/s for 1:100 year ARI flood event at the right overbank and secondly, the 1994 CGR flooding report that calculated the velocity of flood waters was approximately 4.1m/s at RL 4.50 for the 1 in 100 year ARI flood event (Appendix B, p 2). Both studies are relatively old and significantly different in their conclusions to rely on for these applications.

1. Fourth, and even though the applications seek to rely on an existing approval, I see no reason why the current controls relating to flooding should not apply. The applications were not submitted as a modification application under s96 of the Environmental Planning and Assessment Act 1979 (ELPA Act) but as alterations and additions and a change of use to part of the approved building under s97 of the EPA Act. I note that use of the ground floor, where the flooding issue is relevant, is different to the 1998 approval.

1. Fifth, and despite the criticism of Mr Azzi over his reluctance to commit to the potential flood proofing the ground floor area; I agree that such a significant amendment should be not considered without adequate detail of what is to be proposed and proper flooding evidence on the consequences of this change. I note that Mr Azzi expressed reservation of such an change in his evidence where he states that he does not support such an approach "due to the loss of flood storage, changes in flood levels, increase in velocity caused by alterations to the flood flows and the cumulative impact on the adjacent properties". Again, the onus is on the applicant to provide evidence to support this change and as none was provided, Mr Azzi was correct in declining to comment on this potential change, particularly given his already stated reservations.

1. Sixth, I do not accept that cl 1.10.4 of the publication Australian Rainfall and Runoff is irrelevant. Mr Flora and Mr Azzi agree on the extent of flooding for the 1 in 2 year, 1 in 20 year and 1 in 100year ARI storm events. All these storm events inundate the ground level to different depths. As this area is proposed as a workshop (and car parking area) people will use this area on a day-to-day basis. Without an clear understanding of flow velocities, the safety of the people working in this area cannot be assumed. I do not accept the preparation of an evacuation plan overcomes this lack of flood data.

1. I am satisfied that insufficient evidence has be provided to properly assess the implications of flooding on the site and this would be a reason to refuse the applications for this reason alone.

Parking

The evidence

1. Evidence on parking was provided by engineers Mr Benny Chen for the applicant and Ms Rosemarie Barretto for the council. Neither expert was required for cross examination however they provided a joint report that identified the areas of agreement and disagreement. The contentions, in general, raise concern over the inadequate number of car spaces provided off street, the use of vertical stackers and the impact on existing parking in the area.

1. The proposal provides for 16 spaces on the ground floor which is made up of 8 x 2 vertical stackers. The vertical stackers allow 2 cars to be parked in what would normally be a single space by lifting or lowering a car into an excavated area on an electrically driven frame. The plans designate 2 spaces (I vertical stacker) for "resident units", 4 spaces (2 vertical stackers) for "mechanic shop customer", 2 spaces (I vertical stacker) for "mechanic shop employee", 6 spaces (3 vertical stacker) for "boarding house" and 2 spaces (I vertical stacker) for "cafeteria employee". A disabled space is provided on Level 1.

1. Ms Barretto states that only 2 spaces are allocated for "cafeteria employee" and not 4 spaces so the need for car parking will need to be met on-street. This is unacceptable given lack of on street parking available based on a recent parking survey, particularly at lunch time where there is peak demand for parking. While Mr Chen states that 4 spaces can be provided by reallocating 2 spaces from the "mechanic shop employee" allocation, Ms Barretto maintains this will only reduce the parking available for the mechanical workshops. Mr Chen and Ms Barretto agree that the allocation of 6 spaces for the boarding house component of the development is acceptable.

1. As the applications are not suitable for approval for reasons set out earlier in the judgment on zoning and flooding, it is not necessary to fully detail my reasons for concluding that the proposed parking is inadequate for the development beyond stating that it is clearly unacceptable that no off street parking is provided for patrons of the food court. Both Mr Chen and Ms Barretto accept, and I agree, that overall "the intensification of the use of the site ...will generate an unmet demand for additional parking and traffic infrastructure and will therefore have an adverse impact on traffic and on-street parking availability in the locality". The shortage of parking, particularly at lunch times during the week is confirmed in the independent parking survey undertaken by the council in October 2013 and acknowledged by Mr Chen.

1. In accepting that an insufficient number of spaces are provided on site, the unacceptable parking for the development is exacerbated by the use of the vertical stacker system. While the vertical stacker system can be effective in situations where the owners of both vehicles using the system have some relationship, it is unlikely to be used by infrequent and random visitors to the site who may wish to use the food court facilities, or by patrons of the boarding house who do not know other patrons. The sharing of a vertical stacker by the occupiers of the two independent dwellings is also potentially problematic. I do not accept that this fundamental problem can be addressed through a plan of management.

Should both appeals be dismissed?

1. When asked by the Court whether both appeals were inextricably linked Mr Frayne stated that, in principle, he had no issue with a food court on the site however Mr Drury, for the council, submitted that both appeals had common features that were difficult to separate and that the most desirable outcome, if one of the appeals was considered acceptable, would be for both appeals to be dismissed and a new development application to be lodged and considered by the council for the acceptable use.

1. I agree with Mr Drury. A food court is a permissible use in the IN2 zone however it would be impractical, as part of the appeal process, to amend the plans to delete the boarding house component. Any changes would likely have consequential changes to the different floor levels and importantly, Mr Boesnch did not suggest that this was a course of action he favoured. In any event, the question of the amount of car parking and how it is provided is still an unresolved issue.

Orders

1. The orders of the Court are:

For Appeal No 10557 of 2012, the orders are:

1.The appeal is dismissed.

2. DA/377/2011 for the construction of an additional level and the use of the new level and an existing level as a 16-room boarding house and ancillary uses in an approved, but not constructed building at 225 Victoria Road Rydalmere is refused.

3. The exhibits are returned with the exception of exhibit A.

For Appeal No 10558 of 2012, the orders are:

1. 1.The appeal is dismissed.

2. DA/376/2011 for fit-out and use of three food outlets in the approved, but not constructed building at 225 Victoria Road Rydalmere is refused.

3. The exhibits are returned with the exception of exhibit A.

_________________

G T Brown

Commissioner of the Court

Decision last updated: 20 February 2014