Convenient Living v Marrickville Council

[2008] NSWLEC 1283

Land and Environment Court

of New South Wales

CITATION:	Convenient Living v Marrickville Council [2008] NSWLEC 1283 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Applicant: Convenient Living Pty Ltd Respondent: Marrickville Council
FILE NUMBER(S):	10256 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- boarding house, affordable accommodation
DATES OF HEARING:	7 and 8 July 2008
DATE OF JUDGMENT:	11 July 2008
LEGAL REPRESENTATIVES:	Applicant: T Hale, SC instructed by Mr D Thomas, solicitor of Wllings Lawyers Respondent: Mr M Wright, barrister instructed by Mr G Christmas, solicitor of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11 July 2008

10256 of 2008 Convenient Living Pty Ltd v Marrickville Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Marrickville Council (the council) of a development application to demolish the existing building and erect a boarding house on lot 1 DP 1083914, known as 10 Wardell Street, Petersham.

The site

2 The site is on the eastern side of Wardell Road, between New Canterbury Road and Morgan Street. It has a frontage of 17.5m and an area of 537m2. A single-storey house now stands on the site. Adjoining to the north are two two-storey detached terrace houses, Nos 6 and 8. Adjoining to the south is No 12, a single-storey house built to the boundary. Adjoining the rear boundary are detached houses at 22 and 20 Allan Avenue.

3 Most of the nearby properties in the vicinity are detached houses of one or two storeys. The objectors and the council drew attention to most of them being either single-fronted and two-storey or double-fronted and single-storey. My observation is that this is true of the majority but not of all the properties.

The proposal and its history

4 The applicant proposes to demolish the existing house on the site and to erect a boarding house in a two-storey building in the front and a single-storey building in the rear. The total number of rooms is 15; the total number of proposed residents is 18. There is a small kitchen in both buildings and a dining room in the front building. There are two car spaces at the ground level under the first floor of the front building.

5 The applicant lodged the development application in November 2007. Following notification the council received 50 letters of objections and 25 letters of support. The applicant amended the application in February 2007. Following re-notification the council received 44 submissions. There is no information before the Court on how many of these were in support. The applicant lodged the appeal against deemed refusal in March 2008. The council accepted the recommendation of its planning staff to refuse the application in May 2008.

Relevant planning controls and policies

6 Local Environmental Plan 2001 (LEP 2001) zones the site 2(C), a zone in which residential flat buildings to the Floor Space Ratio (FSR) of 1:1 are permissible. Boarding houses are also permissible; however, only to a FSR of 0.7:1. The proposal complies with the maximum FSR. Clause 55 of the LEP refers to an area edged in heavy black in Amendment No 1 to LEP No 111. The site is within that area. Clause 55(1) states:

Before granting consent to the carrying out of development on land within an area shown by distinctive colouring and edged heavy black of the map marked “Marrickville Local Environmental Plan No 111 (Amendment No 1)”, the consent authority is to have regard to the effect of carrying out the proposed development on the heritage significance of buildings situated on land within the area, and, if the proposed development is for the purpose of a building, must make an assessment of

(a) The pitch and form of the roof, if any, and
(b) The style, size, proportion and position of the openings for windows or doors, If any, and
(c) Whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with those of the materials used on existing buildings situated on land within the area.

7 Development Control Plan 31 – Equity of Access and Mobility (DCP 31) requires that two rooms in the proposed boarding house be adaptable. Development Control Plan 35 – Urban Housing establishes criteria for the design of residential development, so it is not strictly applicable to boarding houses.

Matters in contention

8 The council submitted four matters in contention in its Statement of Contentions. During the hearing it emerged that the council’s concerns could be grouped under two headings: appearance in the streetscape and the amenity of the future residents.

9 In the council’s contention three aspects of the proposal contributed to its unsatisfactory appearance in the streetscape:

· The proposal is too bulky to fit harmoniously into the streetscape.

· The proposal lacks articulation towards Wardell Road.

· The parking space within the building at ground floor level dominates the elevation.

10 In the council’s contention two aspects of the proposal contributed to the poor amenity of future residents:

· The internal communal spaces are inadequate.

· The communal outdoor areas are inadequate, poorly distributed and receive no winter sunlight.

The objectors’ concerns

11 The Court heard the evidence of seven objectors during the visit to the site. Dr Michael Stephen, who lives at 22 Allan Street, adjoining the subject site at the rear, said that the proposed building was too big, overshadowed his property, and would be a cause of noise. Lack of on-site management would mean that neighbours would not know where to direct their complaint, should future residents behave antisocially. Dr Stephen objected to the communal open space along the common boundary.

12 Ms Alison O’Connell, who lives at 8 Wardell Street adjoining the subject site to the north, said that the existing house should not be knocked down; the new building was too large, there was not enough space for screen planting, the proposal would overshadow neighbours, two car spaces were not enough, and lack of on-site management would cause anti-social behaviour.

13 Ms Joyce Alwin, who lives at 20 Allan Avenue, adjoining the rear of the subject site, said that the proposed new building was too large and would overlook and overshadow her property. Mr Stanislaus Maher, who lives at 12 Wardell Street, adjoining the subject site to the south, said that he was concerned about overshadowing and overlooking. Ms Margaret Dijanosic, who lives at 2 Gould Avenue, said that the proposal did not provide enough on-site parking. Mr David Hilton, who lives at 24 Allan Avenue, said that the existing building should be retained and the new building was too large. Ms Lisa Rayson, who is Mr Hilton’s wife, shared his concerns. Mr Gerard Page, who lives at 18 Wardell Road, said that the proposed new building, being double-fronted and two-storey, was out of scale with the street. It also lacked disabled access.

14 The council’s planning expert, Ms Harjeef Atwal, did not support those objectors who complained about the proposal’s impact on sunlight and privacy. In her opinion, overlooking and overshadowing were acceptable. The plans support her evidence. As regards the objectors’ concern about the demolition of the existing house, the council did not press its earlier position that the existing house should be retained. There is no evidence before the Court to support such a claim. As regards the parking provision, it complies with the council’s controls for boarding houses.

15 Dr Stephen’s and Ms Alwin’s objection to the communal open space along the common boundary with their property seems to me to be valid. A condition of consent requires this area to be landscaped in a way that discourages access. Dr Stephen and Ms Alwin will have a landscaped area adjoining their property that will not be used.

Appearance in the streetscape

16 The Court heard the evidence of Ms Vanessa Holtham, a heritage architect, and Ms Atwal, a planner, for the council, and Mr Greg Patch, a heritage architect, and Mr Warwick Gosling, a planner, for the applicant.

17 Ms Holtham and Ms Atwal said that the proposal suffered from several design deficiencies.

· The roof was not broken up into sections to reflect the three sections of the building.

· Other buildings in the street are double-fronted and single-storey or single-fronted and two-storey; the proposal is triple-fronted and two-storey.

· The proposal does not respond to the topography of the site, or to the site’s constraints. For example, the building should be stepped to reflect the 800mm difference in levels between the northern and southern boundary at the street.

· The parking spaces within the ground floor are out of character with other buildings in the street.

18 Mr Patch said that none of the above criticisms was valid. I do not think that I am required to decide whose subjective opinion on architectural design is to be accepted. Ms Holtham’s and Ms Atwal’s opinions are of the “I would design it differently”, rather than “it is unacceptable” kind. It would be unreasonable for the Court to refuse this application because, for example, it does not step the building along a difference in levels of 800mm. Similarly, the hollow in the building caused by the parking spaces at ground floor level may be untypical of other buildings in the street and it may not deserve an architectural design prize; however, it is not so significant or disruptive in the streetscape that it would justify refusal.

19 I am strengthened in the above conclusion by the fact that the proposal complies with the salient controls that relate to bulk and scale. The FSR is 0.7:1 in an area where a residential flat building is permissible to a FSR of 1:1. It is two-storeys in an area where the controls permit three-storey buildings. I am further strengthened by the agreement between the planning experts that boarding houses, which provide cheap accommodation, are desirable in Marrickville. I note that planning documents refer to the need for housing affordability and boarding houses. For example, among the objectives of LEP 2001 is 7(g), encouraging housing affordability, diversity and choice. Under the heading Affordable and Appropriate Housing, DCP 35 states:

Existing affordable housing stock in Marrickville is being lost at a rapid rate through the conversion of boarding houses to other uses such as single dwellings and the upgrading and strata titling of residential flat buildings. This loss is driven by a broad range of factors such as gentrification, changing demographics etc. The Marrickville Housing Needs Study 1998 details the factors affecting housing affordability levels in Marrickville. Marrickville Council has indicated its willingness to retain the traditional residential mix of Marrickville, with its mix of people from all walks of life and from all economic, cultural and social backgrounds.

20 The above suggests that the council regrets the loss of boarding houses and, by implication, welcomes the provision of new ones.

21 I note that cl 55 of LEP 2001 applies to the site. It is uncertain how to apply the clause because it requires the assessment of the proposal’s effect on the heritage significance of nearby buildings and there are no heritage items or buildings with documented heritage significance in the vicinity. I take the clause to require an assessment of the extent to which the proposal fits into its context, particularly in respect of the pitch and form of the roof, the style, size, proportion and position of the openings for windows or doors, and the colour and texture and finish of the materials to be used on the exterior.

22 There was no suggestion that the colour and texture of the materials were unsuitable, or that the fenestration was inappropriate. Ms Holtham suggested that the roof should have been broken up and that the articulation of the façade was superficial. This is not the kind of criticism that demonstrates an unacceptable impact or justifies refusal.

23 In my opinion, the proposal satisfies cl 55 of LEP 2001. Its appearance in the streetscape is acceptable.

Amenity of future residents

24 The dispute relates to communal areas within and outside the building. The applicant has provided a small kitchen and dining room in the front building and a small kitchen in the rear building. The dining room accommodates six people around a dining table.

25 Marrickville does not have controls relating to boarding houses. The nearest area that has is the City of Sydney, which has a development control plan dated 2004. The DCP suggests that a boarding house should have a communal kitchen or minor kitchen facilities in the bedrooms. The applicant accepts a condition requiring minor kitchen facilities (cupboards, fridge and a microwave) in the bedrooms. Mr Gosling says that boarding house residents tend to eat their meals in their rooms rather than in a common dining room. Given that he is the only one among the experts to have observed life in a boarding house, I accept his evidence. The provision of kitchens and dining room is acceptable.

26 The dispute about communal open space relates to its location and solar access. The communal area, or at least the main part of it, is reasonably central. Because No 8 overshadows much of the site and because the open space is on the southern side of the proposed building, it is in shadow at mid-winter. At that time of the years it will not be possible to sit in the sun in the communal open space at any time of the day. The fact that the rear building is single-storey (a feature that reduces the impact on neighbours to the rear) means that there is greater building coverage and less open space. I do not think that there is a feasible alternative to the proposed communal open space without significantly reducing the floor space of the proposal.

27 The parties were in dispute about draft Condition 4 requiring that the adaptable units be built ready for use by a handicapped person rather than be capable for adaptation. I note that DCP 31 requires the provision of adaptable units only. The council maintains that, if the units are adaptable only, they will never be fitted out for a disabled person, since it will always be more profitable to let the units to able-bodied tenants. The applicant suggested that a reasonable resolution of the dispute would be to require one of the adaptable units to be ready for occupation by a disabled person. I adopt that suggestion.

28 The parties were also in dispute about draft Condition 13 requiring a comprehensive fabric analysis and archival record of the existing building. There is no evidence before the Court on the heritage significance of the existing building to justify burdening the applicant with this expense. The condition is not imposed.

29 For the above reason the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing building and erect a boarding house on lot 1 DP 1083914, known as 10 Wardell Street, Petersham is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 15 and B.

__________________
Dr John Roseth
Senior Commissioner

14/07/2008 - mistakenly marked as a Judge's decision - Paragraph(s) cover sheet