Cracknell and Lonergan Architects Pty Ltd v Woollahra Municipal Council

[2016] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cracknell & Lonergan Architects Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1443
Hearing dates:	15 August 2016
Date of orders:	27 September 2016
Decision date:	27 September 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1.   The appeal is upheld. 2.   Development application 2015/171 for adaptive reuse of a warehouse for a boarding house at 6-10 Cecil Street, Paddington is approved subject to the conditions set out in Annexure “A”. 3. The exhibits, other than Exhibits A, B and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION: adaptive reuse of warehouse; Paddington Heritage Conservation Area; boarding house; resident objections; overshadowing; height; FSR; character; parking; public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Woollahra Local Environmental Plan 1995 Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Cracknell & Lonergan Architects Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr A Pickles (Applicant) Solicitors: A Knox, Pikes & Verekers Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	150743 of 2016
Publication restriction:	No

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Judgment

1. COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (the Act), is against the refusal of Woollahra Municipal Council (the Council) of Development Application 2015/171 (the application) for the adaptive reuse of a warehouse for a boarding house at 6-10 Cecil Street, Paddington (the site).

2. The application was lodged in April 2015 and assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Affordable Rental Housing SEPP or the SEPP).

3. Prior to determining the application, the Council advertised the proposal and received 117 objections in response. Issues raised in the submissions related to the proposed use and excessive FSR, bulk, scale and height attributed to non-compliance with relevant developments standards resulting in overdevelopment. Concern was also raised in terms of heritage impacts and the impact on the character of the area with increased noise, traffic and parking, and use of Cecil Lane including the proposed waste management. Flooding and stormwater concerns were also raised. For directly adjacent neighbours, additional specific concerns were expressed in terms of the loss of outlook, overshadowing and overlooking.

4. The Council refused the application on the basis that the development was unacceptable in its context, scale, density and form with excess FSR and height, overshadowing and amenity impacts to adjoining properties, internal amenity issues, and heritage impacts.

5. A review application was lodged which amended the proposal by reducing the height from 4 to 3 storeys (from 13.3m to 10.4m), the number of boarding rooms from 27 to 22, and the FSR from 2.19:1 to 1.91:1. A number of design improvements were also proposed including the addition of privacy screens and louvres. The review application was advertised and 87 submissions were received raising similar issues to those raised in response to the original application.

6. The appeal was lodged on December 11, 2015 and the review application refused by the Council on December 15, 2015. Grounds for refusal, in summary, were: non-compliances with the height, FSR and parking standards; incompatibility with the character of the local area; adverse amenity impacts on neighbours (particularly the overshadowing of 2 Sutherland Avenue and 4 Cecil Street); and heritage impacts. Given the extent of community opposition, public interest was also cited as a ground for refusal.

7. On 17 December 2015, the Court granted leave for the Applicant to rely on the review application plans.

8. The appeal was subject to mandatory conciliation in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference phase, the conference was terminated and the matter proceeded to a hearing before me pursuant to s34(4)(b)(i) of the LEC Act.

9. The application was further modified during and following the conciliation conference and leave was granted by the Court on July 26, 2016 for the Applicant to rely on further amended plans (the Revision D plans) and additional information in support of the amended proposal.

10. The amended proposal reflected in the Revision D plans comprises 19 boarding rooms, a caretaker’s dwelling, communal living room, communal open space, and parking for 6 cars, 5 motorcycles and 20 bicycles.

11. The key amendments contained in the Revision D proposal can be summarised as follows:

• Reduction in the FSR and in the number of boarding rooms

• Increase in the amount of parking and bicycles spaces

• Reduction in the height of the basement, in the roof heights at both levels, and in the height of the southern wall of the western portion of the building

• Relocation and reconfiguration of the caretaker’s dwelling, common room and a number of boarding rooms

• Retention of the original Cecil Lane façade

• On Level 1 – reconfiguration of southern rooms and balcony to provide a greater setback from neighbours and improve privacy

• On Level 2 – reduction in the number of rooms from 8 to 6 and redesign in the western portion of the building to allow greater setbacks to southern and western boundaries with improved privacy to neighbours and Cecil Lane

• Provision of mansard roof and reduction in the roof height over the external walkway to reduce overshadowing.

12. Experts for the parties agreed that the Revision D plans and additional supporting information resolved the issues in contention and that the amended application was worthy of approval, subject to conditions.

13. Neighbouring residents however, remained opposed to the application.

Objector Concerns

14. The hearing commenced on site where the Court heard from nine objectors, including a representative of the Paddington Society, and viewed the site from the rear courtyards and living areas of two of the objectors; Ms Hopkins from 2 Sutherland Avenue and Ms Pembroke from 4 Cecil Street which adjoin the southern boundary of the site.

15. Issues raised onsite and in correspondence by objectors included:

- Non-compliance with relevant developments standards including FSR resulting in overdevelopment

- Excessive bulk, scale and height

- Character and heritage impacts

- Overlooking and overshadowing

- Impact on traffic and parking and the use of Cecil Lane which was an important pedestrian thoroughfare

- Amenity impacts, particularly in Cecil Lane, from the proposed use (eg. loitering and smoking, fumes from garage, number of garbage bins)

- Noise impacts

- Soil contamination

- Impacts from excavation

- Flooding and stormwater issues

- Precedent.

16. In terms of the two neighbours to the south, their major areas of concern were the reduced solar access to their rear courtyards, living areas and bedrooms, the loss of outlook from these areas and the loss of privacy. Photographs showing the reduction in solar access to 2 Sutherland Avenue were tabled by Ms Hopkins who also expressed a concern with the potential noise from air conditioning. Ms Pembroke raised the additional concern of noise from boarders utilising the communal open space.

17. Arising from the conciliation process, the Applicant had consulted the affected adjoining neighbours and developed plans which largely addressed their concerns (the Revision E plans). However, on the basis of heritage advice, the Council advised the Applicant that they were not in support of the Revision E plans and instead supported the amended design in the Revision D plans which now comprise the application.

Site and Planning Context

18. The site is described as Lots 99, 100 and 101 in DP1783. It is relatively flat and rectangular in shape with a frontage of 13.715m to Cecil Street, a rear frontage of 13.7m to Cecil Lane and a depth of 30.5m with a total area of 419.2 m².

19. The site is presently occupied by a 1-2 storey brick warehouse, industrial in character and used for commercial operations. Vehicular access to the site is provided from Cecil Lane.

20. The site is located in the Paddington Heritage Conservation Area (the PHCA) but surrounding development is not homogenous comprising residential, commercial and industrial development of predominantly 2-3 storeys although a high rise tower at 28 Sutherland Avenue is in close proximity overlooking Cecil Lane.

Relevant Planning Controls

21. The application was lodged under the provisions of the Woollahra Local Environmental Plan 1995 (the 1995 LEP). Prior to determining the application, the 1995 LEP was repealed and replaced by Woollahra Local Environmental Plan 2014 (the 2014 LEP). The 2014 LEP includes a Savings Provision at clause 1.8A which requires, in essence, that the application be dealt with under the provisions of the 1995 LEP.

22. Furthermore, the application is required to be assessed under the provisions of the Affordable Rental Housing SEPP. A boarding house is permissible in the Residential 2b zoning of the site under the 1995 LEP providing the site is within an accessible area as defined in the SEPP and within a 400m walking distance of land within a Local Centre, Mixed Use or similar zone.

23. The parties confirmed that the site is within an accessible area and is also within 400m of land which is appropriately commercially zoned being in walking distance to Edgecliff train station.

24. Under the SEPP, development consent cannot be refused under clause 29 (1) on the grounds of density or scale if it complies with specified floor space ratio (FSR) controls in the LEP. That FSR is 1.375:1.

25. Clause 29 (2)(a) of the SEPP states that a consent authority must not refuse consent to development if the height is not more than the maximum building height permitted by the LEP which in this instance is 9.5m.

26. Development consent also cannot be refused if the development complies with criteria specified in the SEPP in terms of landscaped area, solar access, private open space, onsite parking provision, and minimum room sizes. Even if compliance to any of these standards is not met, the application can still be approved.

27. Under clause 30A of the SEPP, the consent authority cannot consent to the development of a boarding house under the SEPP “unless it has taken into consideration whether the design of the development is compatible with the character of the local area”.

28. Non-compliance with clause 30A and the height and FSR controls of the SEPP were the primary grounds on which the application had been refused including potential detrimental impacts on the PHCA. Objectors had also raised a concern that the proposal was out of character with the local area.

29. However, in its amended form, the Council was satisfied that the design changes were such that the Council’s issues had been addressed and the provisions of the SEPP and the LEP had been met.

Responding to Objector Concerns

Overview of expert advice

30. A Joint Expert Report addressing planning and heritage issues was prepared by Mr Wong, a planner and Mr Stapleton, a heritage consultant, for the Council and Mr Mead, a planner and Mr Phillips, a heritage consultant for the Applicant.

31. The experts agreed that the proposal as amended met the objectives and provisions of the SEPP, and of Council’s LEP and DCP to the extent that they applied.

32. The parties advised the Court that the amendments undertaken to the application focused on the southern (side) elevation to 4 Cecil Street and 2 Sutherland Avenue to minimise amenity impacts on these properties whilst still meeting required heritage considerations. In particular, there had been a significant reduction in the overshadowing impacts to these neighbours.

33. In summary, the experts agreed that the Revision D plans and additional supporting information resolved the issues in contention and that the application as amended was worthy of approval, subject to conditions.

Height, bulk and scale

34. The amended proposal retains the existing parapet wall to the Cecil Street frontage and parapet returns to the north and south elevations. The proposed building now only exceeds the 9.5m height limit by 0.1m, that is to a maximum height of 9.6m when measured from existing ground level, being the existing floor level within the building.

35. The only other height breach relates to the proposed relocated lift overrun which has a maximum height of 9.89m, therefore being 390mm over the height limit. However, the lift overrun is not visible from either street frontage or from neighbouring properties and will not cast any shadow on neighbouring properties. The lift provides access to all levels. The experts argued that it therefore adds to the amenity of the building and, in the absence of any environmental impact, strict height compliance, by removing the lift, would not result in a better outcome of the development and the height breaches were minor and acceptable.

36. In evidence the Court was advised that the new LEP (LEP 2014), which now applies to the site, allows a maximum height of 10.5m which is 1m higher than permissible under LEP 1995 and higher than the height of the proposal.

37. The SEPP does not specify a height limit but consent can not be refused on the basis of height if the height complies with the height limits in the LEP. In this instance there are minor breaches of the LEP height control but this is at least in part a consequence of retaining and adapting the existing building and does not cause amenity impacts on neigbours.

38. The issues of FSR, bulk and scale, as well as compatibility with the character and streetscape of the locality, are addressed separately below but I find that the height breaches, of themselves, are minor and no longer a ground for refusal, particularly noting that what is approvable on the site under the now applicable LEP could result in a higher development than is now proposed.

Floor Space Ratio (FSR), bulk, scale and density

39. The Revision D amendments to the proposal reduce the FSR from 1.91:1 to 1.49:1 with a commensurate reduction in the number of boarding rooms and therefore the density of the development.

40. The majority of the FSR reduction is from the upper level of the building fronting Cecil Lane, which the experts agreed results in an improvement to the proposal in terms of visual bulk, streetscape presentation and impacts on the adjoining properties to the south.

41. Specifically, Mr Mead advised that, as a result of conciliation, the Applicant had reconsidered the configuration of the building and modified the proposal to move the massing away from the southern boundary and recess the upper level from Cecil Lane, with this level now being setback an additional 4.305m from the rear boundary (ie Cecil Lane) and set within a mansard roof form.

42. When comparing the northern and southern elevations of the original application and the amended proposal, it was agreed by the parties that the changes result in a reduction in building mass, visual bulk and in overshadowing of the properties to the south.

43. Furthermore, the Applicant argued that the existing warehouse has an FSR of 1.5:1 which is more than is proposed in the amended application.

44. I agree with the experts that, when viewed from Cecil Lane in particular, the additional setback and mansard roof form have reduced the apparent bulk of the building compared with the refused application.

45. Whilst the FSR still exceeds the 1.375:1 FSR control that applies under the SEPP this is only a control that, if met, cannot be a ground for refusal rather that requiring refusal if it is not achieved. Unique to this site is the fact that the development involves the adaptive reuse of an industrial building within the PHCA which is of a bulk and scale in excess of its residential neighbours. However, the amended proposal results in an FSR that is less than the existing building whereas the refused application proposed a building which increased the degree of non-compliance compared to the existing building.

46. Having regard to the design rationale for the amended proposal, I find that the development outcome will not significantly alter the contribution of the existing building in terms of bulk and scale to the streetscape of Cecil Street and Cecil Lane, nor result in unacceptable intensity of land use on the site.

47. Subject to no unreasonable adverse impacts on the character of the local area or on the amenity of neighbours (as discussed below), I concur with the parties that the proposed FSR, density, bulk and scale are supportable and will result in an appropriate adaptive reuse of a building within a Heritage Conservation Area for affordable housing.

Local character and heritage impacts

48. The experts agreed that the bulk, scale and form of the amended proposal is acceptable with respect to the character of the locality. Furthermore, the impacts of the development have been reduced including the massing of the Cecil Lane elevation.

49. Specifically, the existing wall to Cecil Lane is to be retained and setbacks increased significantly to the upper level to the western component fronting Cecil Lane with the upper level now contained within a mansard roof form. Consequently, the relationship with adjoining buildings fronting Cecil Lane will not change at the boundary alignment with the upper level now recessed.

50. As a result of reducing the number of boarding rooms on the upper level and setting back this level on the western elevation, the excessive use of aluminium screens previously opposed by the Council is also removed as that building element is now contained within the mansard roof form.

51. In addition, southern blade walls are setback from the boundary with landscaping in front, the lift and stair have been relocated to the northern edge of the site further from southern neighbours, and the southern setback to the upper level on the western portion of the building is increased. The experts agreed that these changes all result in an improvement in terms of maintaining the existing character of the locality.

52. The proposal has also been amended in order to address character concerns raised by heritage experts in relation to the original scheme.

53. Mr Stapleton raised a concern with the proposed green roof on the Cecil Lane side adjacent to proposed boarding rooms 14 and 15 which he considered was not in character with the PHCA and should be a non-trafficable metal roof. It was subsequently agreed by the Applicant that this design outcome could be undertaken and achieved through a condition of consent. It was also the opinion of both heritage experts that the balustrades to the balconies of the Cecil Street elevation of the caretaker’s dwelling and a number of boarding rooms should be open metal palisades to a height of 1m. This was also agreed by the Applicant as a condition of approval.

54. Consequently, the heritage experts agreed that the amended proposal addressed Council’s initial concerns in relation to heritage and that the impacts on the heritage streetscape were now acceptable. Furthermore, the modified proposal would have the effect of producing two broad improvements, being:

1. greater relationship with the common vernacular of dwelling houses in the immediate area; and

2. an overall reduction in the bulk and scale of the proposed building.

55. I agree with the experts that, in the context of the existing built form on the site, the proposed alterations and additions will not result in a building that is incompatible with the locality.

56. The existing context with the lower rise developments adjoining to the south provides challenges to the design which seeks to retain and reuse the existing non-residential building on the site which already has a substantial side presence to adjoining residential properties to the south. The Applicant has made reasonable, and in my view, adequate endeavours to balance the heritage and streetscape requirements of the Council and the amenity impact concerns of the neighbours.

55. I accept the Applicant’s argument in submissions that, under the new LEP controls that apply to the site, the proposed use would be fully compliant and should therefore be considered to reasonably reflect the form of development now envisaged for the site and the area.

56. The SEPP only requires that the development not be refused if it is incompatible with the local streetscape in which the building is located. I find that it is compatible given that streetscape is not homogenous in character and the development involves retention of an existing contributory building in the streetscape and within the Paddington Heritage Conservation Area.

57. On the basis of the evidence before the Court, incompatibility with the character of the local area, including heritage considerations for a site within the PHCA, is therefore no longer a ground for refusal of the application. The Applicant has modified the proposal to address the heritage requirements of the Council and the heritage impacts were not a major concern of objectors relative to other features of the development. I therefore have no reason to dispute the findings of the heritage experts as to the acceptability of the proposal as amended.

Overshadowing, overlooking and outlook

60. Pursuant to Section 4.1.8 of the PHCA Development Control Plan 2008 (the PHCA DCP), the following overshadowing controls are applicable:

C4 Infill development and alterations and additions must be designed and sited so that sunlight is provided to at least 50% or 35m² with minimum dimensions of 2.5m, whichever is the smaller, of the main ground level private open space of adjoining properties for a minimum of three hours between 9am and 3pm on 21 June. Where existing overshadowing is greater than this, sunlight is not to be further reduced.

C5 Where adjoining dwellings have greater than three hours of sunlight to a habitable room, the north-facing windows to the habitable room are not to have sunlight reduced to less than three hours between 9am and 3pm on 21 June.

61. Mr Mead argued that the proposed massing of the building minimises overshadowing to a reasonable level given the east-west orientation of the site and that north facing courtyards of the adjoining two residential properties directly abut the common boundary meaning that any development to the maximum height at the boundary would have significant shadow impact on these two properties.

62. The parties agreed that the proposal had been amended as far as practicable to maintain the existing wall along the common boundary between these properties, but to leave a break in the building form at the centre of the site. Therefore, whilst sunlight is reduced to a minor extent for a small part of the day at mid-winter, by 1pm all windows but one (including living areas) to 4 Cecil Street achieve full sunlight.

63. Mr Mead also noted that, in relation to the courtyard of 4 Cecil Street, until 1pm, there is no change to the area of courtyard that receives direct solar access. There is a reduction in the area that gains direct solar access at 1pm. However by 2pm he argued the impact was negligible with the additional shadow cast by parts of the building that are compliant with the height limit.

64. In terms of the courtyard of 2 Sutherland Avenue, there is only negligible difference between the existing situation and the proposal and the degree of solar access to the courtyard meets the DCP controls with more than 50% of the courtyard receiving solar access for at least three hours.

65. In terms of 4 Cecil Street, all windows receive more than 3 hours solar access except for the eastern most ground level window however that window will still receive direct sunlight at 1pm and 2pm, consistent with the existing situation. In relation to 2 Sutherland Avenue, all windows will continue to receive three hours solar access at mid-winter.

66. Mr Wong noted that:

- the rear yards of 2 Sutherland Avenue and 4 Cecil Street are currently fully overshadowed (more than 50% of the rear yards are in shadow) on 21 June between 9am and 3pm. The overshadowing pattern in these rear yards will remain similar as a result of the amended proposal.

- All upper floor north facing windows of 2 Sutherland Avenue and 4 Cecil Street will continue to receive more than 3 hours of solar access as a result of the amended proposal.

67. If the PHCA DCP controls were to be applied to the upper windows of 2 Sutherland Avenue and 4 Cecil Street, the shadow impacts to these windows are compliant and could therefore be considered acceptable.

68. The shadow diagrams confirm that the amended proposal still cannot achieve full compliance with the minimum solar access requirements to the north-facing habitable room windows on the ground floor of the adjoining properties. Notwithstanding, the following is noted:

- 4 Cecil Street – the living room window currently receives less than 3 hours of sunlight which will not be further reduced and both the dining room and kitchen windows will continue to receive 3 hours of sunlight which is compliant.

- 2 Sutherland Avenue – the living room window currently receives less than 3 hours of sunlight which will not be further reduced, the dining room window will continue to receive 3 hours of sunlight which is compliant and the kitchen window will receive less sunlight than it currently does but will be able to maintain 3 hours of sunlight which is compliant.

69. In addition, it was noted onsite that the living, dining and kitchen areas of the two affected properties merge rather than form separate rooms. As a result, the overshadowing impacts to individual windows will be less significant to the combined habitable areas. In evidence, Mr Mead indicated that it was quite exceptional how much solar access could be maintained to these two properties given their location and the site’s constraints.

70. I agree with this finding and with the Council that the amended proposal results in a significant reduction in the overshadowing of neighbours. I also find that the overall overshadowing impact to the adjoining properties is acceptable given the site’s constraints and context with the amended proposal meeting the intent and the provisions of the SEPP and the DCP.

71. In terms of privacy of 4 Cecil Street and 2 Sutherland Avenue, the issue of potential for overlooking had been addressed by the amendments undertaken including: providing chain mail mesh privacy screens along all external walkways with plantings at their southern extremities to preclude people from standing in these locations; setting the centre of the building away from the southern boundary; and having no living room windows on the southern façade.

72. The ‘cut out’ in the central portion of the building also assists with reducing the adverse outlook from the properties to the south where the outlook is already affected by the length and height of the existing southern elevation of the warehouse.

73. In dealing with the overall amenity of the two adjoining properties to the south in terms of overshadowing, overlooking and outlook, I note that the amendments to the design which resulted in the Revision D plan were largely driven by two considerations: meeting Council’s requirements in terms of heritage impacts and minimising the adverse impacts to the 4 Cecil Street and 2 Sutherland Avenue. Reducing the extent of overshadowing and overlooking of these two properties was paramount in the Council ultimately supporting the amendments proposed.

74. I accept that there will be some impact on the two adjoining properties to the south. However, as previously noted, this is largely a result of the site’s constraints including the need to address heritage and streetscape considerations to two streets in a Heritage Conservation Area, and to adaptively reuse an existing warehouse which already exceeds FSR controls and has a high long wall elevation to adjoining residential properties to the south. The Applicant has gone to some length in amending the proposal to minimise or remove adverse impacts on residential neighbours in terms of overlooking, outlook and overshadowing concerns.

75. I am therefore satisfied that the Applicant has done all that is reasonable to address adverse amenity impacts and I agree with Mr Mead that any fully compliant development could have similar if not more adverse impacts. For this reason I find the overshadowing and outlook impacts to be reasonable in the circumstances and the overlooking impacts to be adequately addressed.

Parking

76. The site is within an accessible area as defined under the SEPP and therefore requires 0.2 spaces per room and a maximum of one space for the boarding house manager. The proposal provides 5 spaces, including 1 disabled space and is therefore compliant with both the SEPP and the DCP requirements providing more parking that the SEPP requires. The required amount of motorcycle parking is also provided and substantially more bicycle parking is provided than is required by the SEPP.

77. Council’s traffic engineers had assessed the revised parking layout and considered it to be satisfactory.

78. No expert evidence was provided to the Court in terms of parking and access requirements other than by reference to the provisions of the SEPP and to the DCP requirements. In this regard, the Council raised no issue with the proposed development in terms of use of Cecil Lane where access to the site is already obtained serving commercial operations.

79. The conditions of consent state that residents of the proposed boarding house will not be eligible for resident or visitor parking permits limiting their ability to park in surrounding streets. Furthermore the reduction in the number of rooms reduces the demand for parking with the Applicant arguing that the overall demand would be less than currently existed with the commercial use of the site which included loading docks accessed from Cecil Lane. In terms of fumes, the opportunity for onsite parking and unloading already exists and these will continue to be contained within the proposed basement.

80. I have already noted that consent cannot be refused under the SEPP if the amount of parking required by the SEPP is provided as is the case in this application. Compliance is also met in terms of the required provision of motorcycle and bicycle parking and accessibility to public transport.

81. Therefore, whilst the objectors may still consider that the application provides inadequate parking, and that there may be additional vehicular and pedestrian use of Cecil Lane associated with the proposed boarding house, the amount of parking provided onsite in the application complies with, and in fact exceeds, what the planning controls require and therefore cannot be a basis for refusal of the application.

Public Interest

82. The parties agreed that, subject to conditions, the amended proposal is considered to be in the public interest. I agree on the basis that I have already found that the amenity impacts arising from the objectors’ submissions have been addressed in the amended proposal and on the basis of the following findings.

Other issues raised by objectors

83. A Plan of Management is required by the consent to address any issues associated with the operation of the boarding house, and limits the use of the communal open space to between 8am and 10pm. The communal open space is separated from the southern boundary by the private open space of the caretaker and it could therefore reasonably be expected that it would be in the manager’s interests to regulate the use of this communal area. A condition of consent requires details on how the communal open space is to be landscaped and utilised.

84. It is also noted that there is no direct pedestrian access from the development to Cecil Lane so neighbour concerns about loitering or smoking by boarders in Cecil Lane are likely to be unfounded. If such activity does occur, I agree with the experts that it will be in Cecil Street or in the onsite communal living or open space areas, which would reflect the intent of having such areas.

85. Whilst there will likely be more occupants than may be expected in a similar sized dwelling house this is not a relevant consideration under the SEPP.

86. The consent also contains conditions restricting noise levels and hours of construction with no demolition permitted on weekends and no construction works on Sundays or prior to 7am on weekdays or 8am on Saturdays.

87. In terms of flooding and stormwater management, the Council advised that a revised stormwater plan, flooding report and revised geotechnical report had been submitted with the amended proposal and were acceptable. There was no concern raised by the Council in terms of excavation or contamination and no expert evidence before the Court that indicated such issues existed or could not be managed. The Council was also satisfied with the waste management proposal in the amended design.

88. The consent requires geotechnical and hydrological monitoring during construction and approval to water, construction and flood risk management plans as well as the preparation of dilapidation reports for adjoining buildings. Noise control measures, monitoring and compliance is also required.

89. Finally, no precedent issue arises. Compliant boarding houses are already permissible in specific low density residential areas and it is unlikely that applications for similar adaptive reuse of former warehouses in the area for boarding houses will be prevalent.

Summary of findings

90. Ultimately, and notwithstanding the concerns raised by objectors, I find that there are no substantive grounds for the Court to refuse consent to this application. It complies with all of the mandatory development standards of the SEPP and proposes adaptive reuse of a building within a Heritage Conservation Area for affordable housing.

91. I accept that there will be some impact to the occupants of 2 Sutherland Avenue and 4 Cecil Street given the context in which their properties relate to the site but I consider that all reasonable attempts have been made to minimise and resolve these impacts.

92. In my view, the relevant objections raised by neighbours regarding the proposal have therefore been considered by the parties and are appropriately addressed by the amendments made to the proposal to the extent that the relevant planning instruments require.

93. In this regard, I accept that the amendments to the proposal have addressed Council's original contentions of concern in relation to the proposal and I am also satisfied that the proposal is consistent with the objectives of the SEPP and with the LEP and DCP to the extent that these instruments apply.

94. In considering the amended plans and documents and agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is appropriate to grant consent to the proposal, having regard to the whole of the circumstances.

Orders

95. The orders of the Court are:

1. The appeal is upheld.

2. Development application 2015/171 for adaptive reuse of a warehouse for a boarding house at 6-10 Cecil Street, Paddington is approved subject to the conditions set out in Annexure “A”.

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

________________

Jenny Smithson

Commissioner

150743.16 - Annexure A (388 KB, pdf)

Decision last updated: 27 September 2016