Chan v City of Canada Bay Council

[2019] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chan v City of Canada Bay Council [2019] NSWLEC 1530
Hearing dates:	22 October 2019
Date of orders:	05 November 2019
Decision date:	05 November 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1)   The appeal is upheld. (2)   Development Application No. 2018/0139 for alterations and additions to an existing dwelling and the construction of a three storey building to the rear and use of the existing and new buildings as a boarding house with 7 boarding rooms at 97 St Georges Crescent, Drummoyne is approved, subject to the conditions of consent at Annexure A. (3)   The exhibits, other than Exhibits A, B and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – whether the proposal is compatible with the character of the local area – the proposal does not meet the parking standard – overshadowing of adjoining property – impact on views across the site – amenity of boarding rooms – vicinity of heritage conservation areas and impact on setting – management of tandem car parking
Legislation Cited:	Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	City of Canada Bay Development Control Plan
Category:	Principal judgment
Parties:	See Ching Chan (Applicant) City of Canada Bay Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) S Kondilios (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Hall and Wilcox Lawyers (Respondent)
File Number(s):	2018/231426
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2018/0139 for alterations and additions to an existing dwelling and the construction of a three storey building to the rear of the existing dwelling and use of both buildings as a boarding house with 7 boarding rooms (the proposal) at 97 St Georges Crescent, Drummoyne (the site) by Canada Bay Council (the Council).

2. The appeal was subject to conciliation on 28 February 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 3 September 2019 for the applicant to amend the application by relying on an amended proposal subject to the applicant paying the Council’s costs thrown away as a result of the amendment pursuant to s 8.15(3) of the EPA Act.

4. Leave was unopposed and granted by the Court at the commencement of the hearing in Court for the applicant to amend the application to rely on an amended documentation (Ex A). The parties informed me that they reached agreement as to whether the amendments made in Ex A are minor within the meaning of s 8.15(3) of the EPA Act following the hearing. The amendments to the proposal in Ex A included the following:

• The existing hard stand in the front setback is widened to covert the hardstand to an accessible car parking space. An external platform lift is added along a new pathway in front of the existing dwelling to connect the accessible car space to the side path on the northern side of the existing dwelling and the front door.

• The existing footpath entry to the dwelling is altered to widen the path and raise the level in order to achieve a fall less than 1:14 and access to the site is from the Lyons Road footpath on the corner of Lyons Road and St Georges Crescent.

• A swipe card entry reader is added to the entry.

• A boarding room is changed into a communal living room and the total number of boarding rooms is reduced from 8 to 7.

• The bathroom to the accessible room is accessed from the hallway and not internally from the room. The bathroom next to the laundry is accessed from within the laundry.

Issues

5. The Council’s remaining contentions following the joint conferencing of experts and the amendment of the proposal can be summarised as:

• Contention 1: The proposal does not achieve high quality urban form and does not conserve the environmental heritage of Canada Bay. The design of the proposal is not compatible with the character of the local area.

• Contention 6: The proposal does not satisfy the parking requirements of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) cl 29(2)(e).

• Contention 8: The proposal will result in an unacceptable overshadowing impact on the adjoining property.

• Contention 9: The proposal will adversely impact existing views currently enjoyed from residential properties located opposite the site on the north-western side of Lyons Road.

• Contention 10: The design, general amenity impacts and adverse environmental impacts of the proposal are unacceptable.

• Contention 12: The proposal would have an unacceptable impact on the setting of the Heritage Conservation Areas (HCAs) in the immediate vicinity of the site.

• Contention 13: Management of the car parking arrangement does not provide suitable security for occupants contrary to the Crime Prevention Through Environmental Design principles.

6. Following the agreement of the experts in their joint reports, the Council did not press the remaining contentions listed in the Statement of Facts and Contentions (Ex 2).

The site and its context

7. The site is on the southern corner of Lyons Road and St Georges Crescent, with a frontage to St Georges Crescent of 10.82m and a frontage to Lyons Road of 51.38m. The site has an area of 576.9sqm.

8. The site contains a modest, single storey detached dwelling house fronting St Georges Crescent, constructed in the Federation style of architecture. The backyard of the existing dwelling is at a raised level to the floor level of the dwelling and is below the footpath level on Lyons Road.

9. The property to the rear of the site at 1 Lyons Road is a three and four storey residential flat building with vehicular entry at the rear of the site from Albert Street.

Background and the proposal

10. The proposal is to retain the existing dwelling and carry out alterations and additions to convert the dwelling into three boarding rooms, a communal kitchen and a communal living room.

11. The proposal is to construct a three level pavilion style addition at the rear of the existing dwelling, containing four boarding rooms and bathrooms on the ground level, a garage to house 3 vehicles on the first level accessed via Lyons Road and a manager’s room on the uppermost level with a balcony.

Planning framework

12. The site is zoned R3 Medium Density Residential pursuant to Canada Bay Local Environmental Plan 2013 (LEP 2013) (Land Zoning Map Sheet LZN_006 of LEP 2013). Boarding houses are a nominate permissible use with consent. The objectives of the R3 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

13. The application is made pursuant to SEPP ARH Division 3 Boarding Houses. Div 3 applies to land zoned R3, at cl 26.

14. A consent authority must not refuse consent to development to which Div 3 of SEPP ARH applies on the grounds of density or scale if the density and scale of the building when expressed as a floor space ratio are not more than, at cl 29(1):

…

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less,

15. Residential flat buildings are permitted in the R3 zone and the site does not contain a heritage item identified in an EPI, nor is the site the subject of an interim heritage order. The FSR development standard for the site is 0.5:1 and the bonus FSR at cl 29(1)(c)(i) is 0.5:1, giving a total FSR of 1:1 for the proposal. The FSR of the proposal is 0.56:1.

16. A consent authority must not refuse consent to a development to which Div 3 of SEPP ARH applies if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument (EPI) for any building on the land, at cl 29(2)(a). The maximum building height of the proposal is agreed by the parties to be 8.5m and the maximum building height permitted under LEP 2013 is 8.5m (Height of Buildings Map Sheet HOB_006 of LEP 2013).

17. Standards that cannot be used to refuse consent, at cl 29(2) of SEPP ARH, are as follows:

(b) landscaped area

if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,

(c) solar access

where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(d) private open space

if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(e) parking

if:

…

(iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and

(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,

(f) accommodation size

if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:

(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or

(ii) 16 square metres in any other case.

18. A consent authority may consent to development to which Div 3 applies whether or not the development complies with the standards set out in subcl (1) or (2) of cl 29, at cl 29(4) of SEPP ARH.

19. A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room, at cl 29(3) of SEPP ARH.

20. A consent authority must not consent to a development to which Div 3 applies unless it is satisfied that a boarding house with 5 or more boarding rooms has at least one communal living room. The proposal includes a communal living room of 20sqm within the existing dwelling.

21. A consent authority must not consent to a development to which Div 3 applies unless it is satisfied that no boarding room will have a gross floor area of more than 25sqm, at cl 29(2)(b) of SEPP ARH. The proposal satisfies this requirement as shown on the architectural plans (Ex A).

22. A consent authority must not consent to a development to which Div 3 applies unless it is satisfied that no boarding room will be occupied by more than 2 adult lodgers, at cl 29(2)(c) of SEPP ARH. The conditions of consent (Ex 8) impose this requirement at condition 84(1)(i) and (ii).

23. A consent authority must not consent to a development to which Div 3 applies unless it is satisfied that adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, at cl 29(2)(d) of SEPP ARH. I am satisfied that adequate bathroom and kitchen facilities are provided by the proposal as shown on the architectural plans (Ex A).

24. A consent authority must not consent to a development to which Div 3 applies unless it is satisfied that at least one parking space will be provided for a bicycle and one will be provided for a motorcycle for every 5 boarding rooms, at cl 29(2)(h) of SEPP ARH. The proposal includes 4 bicycle parking spaces in a storage room and two motorcycle parking spaces adjacent to the driveway entry to the garage.

25. A consent authority must not consent to development to which Div 3 applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

26. E2.3 Solar access of the City of Canada Bay Development Control Plan (Canada Bay DCP) includes the following objectives and controls:

O1. To maximise solar access to living areas and private open space in order to improve residential amenity.

O2. To minimise the amount of overshadowing of neighbouring developments and outdoor spaces to maintain their amenity.

C1. New buildings and additions are sited and designed to maximise direct sunlight to north-facing living areas and all private open space areas.

C2. Direct sunlight to north facing windows of habitable rooms and all private open space areas of adjacent dwellings should not be reduced to less than 3 hours between 9.00am and 3.00pm on 21 June.

Public submissions

27. Four resident objectors provided evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• The proposal will obstruct harbour views from the ground floor of the properties on the opposite side of Lyons Road;

• The proposed box at the rear of the existing dwelling is unattractive and will detract from the heritage character of the locality.

• The proposed tandem parking is unsatisfactory and will result in additional cars being parked on the street. The proposal has two driveway crossovers and the property should only have one driveway crossover. The entry to the parking from Lyons Road will significantly increase the traffic movements in Lyon Road. Expecting the manager of the boarding house to manage the tandem parking is unreasonable.

• The site is an unsuitable location for a boarding house. Eight bedrooms are too many for the proposal.

Expert evidence

28. The applicant relied on the expert evidence of Mr Peter Lonergan (heritage), Mr Andrew Robinson (planning) and Mr Bernard Lo (traffic). The Council relied on the expert evidence of Ms Kate Higgins (heritage), Mr Jeff Mead (planning) and Mr Brendan MacGillicuddy (traffic).

29. The traffic experts prepared a joint report and were not required to give oral evidence.

Consideration

The design of the proposal is compatible with the character of the local area

30. The site is adjacent to and outside the boundary of the Birkenhead and Dawson Estates Conservation Area. The Drummoyne Park Estate Heritage Conservation Area is located on the opposite side of Lyons Road and excludes the property on the opposite corner of Lyons Road and St Georges Crescent.

31. There is no requirement in cll 5.10(2)(a) and (4) of LEP 2013 to consider the effect of the proposal on the heritage significance of the HCAs because cl 5.10 applies only to heritage items and HCAs and not to properties within the vicinity of HCAs.

32. The proposal is a positive gesture to the character of the locality because it retains a dwelling typical of the period of development within the locality which broadly contributes to the setting and interpretation of the HCAs. The design of the proposal includes a contemporary pavilion addition to the rear of the existing dwelling. The bulk and scale of the proposal are typical of development in the R3 zone.

33. I am satisfied that the landscape treatment of the front setback area is compatible with the streetscape in which the building is located. The front setback retains its existing character, notwithstanding the changes to the hardstand parking area, entry gate and level of the footpath and the addition of a platform lift.

34. I accept Mr Mead’s criticism of the proposal as having minimal landscaped areas, because the proposal has no landscaping in the rear setback or southern side setback. The proposal includes landscaping within the private outdoors areas of the four boarding rooms along the northern boundary and landscaping in the front setback. The amount of landscaping is limited due to the retention of the existing dwelling, which constrains the development to the rear of the existing dwelling and dictates the driveway location at the rear of the site. There are a number of nearby properties, including 1 Lyons Road to the rear of the site and 99 St Georges Crescent on the opposite corner to the north, which are fully occupied or nearly fully occupied by built form with raised planters for landscaping. The landscaping proposed on the site is consistent with a number of developments in the R3 zone in the vicinity of the site.

35. I am satisfied that the design of the proposal is compatible with the character of the local area.

Parking and management of the tandem arrangement in the garage

36. The parking standard at cl 29(2)(e) requires 3.5 car parking spaces for 7 boarding rooms and 1 car parking space for the manager of the boarding house. The proposal includes 4 car parking spaces (three car parking spaces in the garage of which two are in a tandem arrangement and one accessible car parking space in the front setback).

37. The planning experts agreed that the proposal results in a shortfall of one car parking space (Ex 5, pars 6.4 and 13.3). Mr Robinson noted that the availability of bus services and ferry services nearby is sufficient to support a reduction in the onsite parking requirement by 0.5 spaces. Mr Mead was of the view that there was no constraint on the site that precluded the proposal achieving 5 car parking spaces.

38. The experts disagreed on the suitability of the tandem parking arrangement in the garage, where the garage accommodates 3 car parking spaces and a waiting area and the manager’s car parking space is capable of being obstructed by the tandem space behind, requiring the manager to move a lodger’s car.

39. I accept the agreement of the planning experts that the proposal does not meet the “do not refuse” threshold for parking at cl 29(2)(e)(iia) and (iii) of SEPP ARH. This standard is not a requirement as a consent authority may consent to a development to which Div 3 of SEPP ARH applies whether or not the development complies with the standards set out in subcl (1) or (2), at cl 29(4) of SEPP ARH. The shortfall of one car parking space is acceptable. The proposal includes an onsite dwelling for a manager, despite not meeting the requirement to provide a dwelling or boarding room for a manager onsite when there are 20 or more lodgers, at cl 30(1)(e) of SEPP ARH. The parking standard for a manager of one car parking space is a maximum and not a requirement. I am satisfied that it is appropriate in all the circumstances of this matter, including the site’s easy access to public transport and amenities, for the proposal to provide 0.5 car parking spaces onsite per room including the manager’s room.

40. I accept Mr Mead’s criticism of the tandem parking arrangement in the garage. It will potentially be a nuisance for the manager to have to move a lodger’s car in order to exit or enter the garage. However, this aspect of the proposal is not determinative because it is able to be managed (Plan of Management Ex D, Part 6). The proposal retains the existing dwelling, despite there being no necessity to do so and the retention of the existing dwelling broadly contributes to the setting of the HCAs by retaining a Federation cottage that dates from a key period of development in the locality. The retention of the existing dwelling significantly limits opportunities to provide onsite parking and the tandem arrangement is the means of providing the total of four onsite car parking spaces. The tandem parking arrangement is a fair trade-off for the retention of the existing dwelling.

Overshadowing of the private open space and rear addition of 95 St Georges Crescent

41. The planning experts agreed that the proposal results in overshadowing of the private open space and rear addition of the dwelling to the south of the site at 95 St Georges Crescent and that the controls in E2.3 of the Canada Bay DCP requiring direct sunlight to north facing windows of habitable rooms and all private open space areas of adjacent dwelling should not be reduced to less than 3 hours between 9am and 3pm on the winter solstice are not met. The private open space of 95 St Georges Crescent receives 2.5 hours of direct sunlight on the winter solstice and half an hour of direct sunlight before 9am.

42. Mr Robinson noted that the Canada Bay DCP does not apply to the proposal for a boarding house.

43. The overshadowing of the adjoining property to the south of the site is a function of the orientation of the properties and the bulk and scale of the new building at the rear of the existing dwelling due to the retention of the existing dwelling. As the site is within a R3 zone, the proposal has a density and scale that is significantly less than the FSR that is permitted as a “do not refuse” standard on this site for a boarding house, the height of the proposal is not more than the maximum building height permitted under LEP 2013 and the side setback is an acceptable 1.5m; I accept Mr Robinson’s evidence that the significant overshadowing impact of the proposal on the adjoining property is in all the circumstances of this matter acceptable and that the overshadowing of the adjoining property has been minimised.

Impact on views across the site

44. The impact of the proposal on views across the site from the ground floor level of two dwellings on the opposite side of Lyons Road was pressed by the Council. I accept the planning experts’ agreement that it is less reasonable to expect to retain views from the ground floor of those dwellings across the site and the view impact of the proposal is reasonable given that the proposal complies with the height of buildings development standard for the site of 8.5m.

Amenity of the boarding rooms

45. I agree with Mr Mead that the amenity of the four boarding rooms on the ground level of the rear building, with a floor level significantly below the level of the footpath, is compromised and would not be acceptable for an apartment in a residential flat building.

46. I accept the applicant’s submission that the provision of a small private outdoor area to the north of each of those four boarding rooms provides better amenity than is mandated by SEPP ARH and that the only amenity requirement for a boarding house development under SEPP ARH is a “do not refuse” standard that at least one communal living room receives a minimum of 3 hours direct sunlight between 9am and 3pm on the winter solstice, at cl 29(1)(c), which is met.

Impact on the setting of HCAs

47. There is an eclectic mix of development in the vicinity of the site, including townhouses, residential flat buildings, large single dwellings and a multi-storey institutional building on the opposite side of the street which was formerly a residential aged care facility. The adjoining site to the rear contains a residential flat building of up to four storeys.

48. By retaining the existing dwelling (a modest Federation style cottage which dates from a key period of development in the locality) and locating the new contemporary building to the rear of the existing dwelling, the proposal contributes to the setting of the nearby HCAs and to the interpretation of those HCAs. I am satisfied that the retention of the existing dwelling on the site provides an appropriate visual setting for the HCAs and that the treatment of the front setback maintains the existing character of the locality. The rear addition is commensurate with the bulk and scale of development typical of the R3 Medium Density Residential zone.

Conclusion

49. I am satisfied on the basis of the evidence before me that it is appropriate to grant consent to the proposal.

Orders

50. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2018/0139 for alterations and additions to an existing dwelling and the construction of a three storey building to the rear and use of the existing and new buildings as a boarding house with 7 boarding rooms at 97 St Georges Crescent, Drummoyne is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits A, B and 2, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (265 KB, pdf)

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Decision last updated: 05 November 2019