Dhillon and Dhillon v Campbelltown City Council

[2011] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dhillon & Dhillon v Campbelltown City Council [2011] NSWLEC 1354

Hearing dates:

7 November 2011

Decision date:

12 December 2011

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development application 1747/2010/DA-U (as amended by exhibit A) for use of the existing dwelling at 141 Lindsay Street, Campbelltown as a boarding house is approved subject to the conditions in Annexure A.

(3)The exhibits are returned except exhibits A and 4.

Catchwords:

Development appeal - boarding house, affordable housing rental accommodation -undersized rooms, stack parking and impact on the streetscape

Legislation Cited:

State Environmental Planning Policy (Affordable Rental Housing) 2009
Environmental Planning and Assessment Act 1979
Campbelltown (Urban Area) Local Environment Plan 2002
Campbelltown (Sustainable City) Development Control Plan

Category:

Principal judgment

Parties:

Dhillon & Dhillon (Applicants)

Campbelltown City Council (Respondent)

Representation:

Counsel
Mr M Mantei (Applicants)

Mr A Seton (Respondent)
Solicitors
Planning Law Solutions (Applicants)

Marsdens Law Group (Respondent)

File Number(s):

10686 of 2011

Judgment

1. Jespal and Manjit Dhillon operate a boarding house from premises at 141 Lindsay St, Campbelltown. In order to continue that use they need development consent.

1. However, Campbelltown City Council has refused to issue development consent. It contends that the development has the following unacceptable impacts:

• Adverse social impact - tenant amenity,

• Adverse social impact - neighborhood amenity,

• Site not suitable for development - deficient car parking,

• Site not suitable for development - incompatible character,

• Not in the public interest - absence of on-site manger,

• Not in the public interest - undersized bedrooms.

1. The applicants appeal council's decision under s97 (1) of the Environmental Planning and Assessment Act 1979. However, they have amended their application since council's refusal. They assert the amendments overcome council's concerns. The amendments increase the size of the bedrooms, remove the stacked parking and provide two separate car spaces and propose minor works to address non-compliances with the provisions of the Building Code of Australia.

1. The amended application seeks approval for the following affordable short term rental accommodation:

• 12 single bedrooms
• 4 x bathrooms
• 3 x separate toilets
• 1 central lounge
• Kitchen
• Dining room precinct
• 1 kitchenette
• 1 sunroom
• 1 laundry
• 1 tandem carport providing parking for two (2) stacked cars
• 1 open space area of approximately 50 sq m, continuous with an external deck approximately 26 sq m
• capacity multiple bike storage
• Two (2) car spaces

1. Mr Fletcher, Council's town planning expert, supports the approval of the amended application subject to the imposition of conditions. I accept his evidence for the reasons that follow.

1. The boarding house operates in an existing 1950's dwelling. The use is permissible in the 2(b) Residential zone under Campbelltown (Urban Area) Local Environment Plan (2002) and is consistent with the provisions of the Campbelltown (Sustainable City) Development Control Plan . According to Mr Fletcher and Mr Shannon (the applicant's town planner) the boarding house is compatible with the surrounding mixed residential development and it use will have a negligible impact upon the existing streetscape.

1. Council's internal planning assessment report also concludes that the use is compatible with the area. The report states "... the application presents a development that is consistent with the establish residential character of the neighborhood in terms of built form and scale, and is located within close proximity to Campbelltown CBD and public transport services ." The proposal is also consistent with the stated focus area: " To match the scale and intensity of the existing land use with the capability of the local environment to sustain that use ." It is consistent with the strategic direction of the Campbelltown 2025 - Looking Forward Vision Statement for the city of Campbelltown (folio 53 of exhibit 3).

1. More relevant, however, is the fact that the amended application meets the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP). It complies with the standards for car parking, bike parking, bathrooms, laundries, kitchen areas, and the bedroom sizes have been increased from between 6.75 m2 to 19.3 m2 to 12 m2. While non-compliance with the standard in cl 29 (f) of the SEPP does not justify refusal of the application the planners told me that the larger bedrooms would ensure a better amenity for the residents. Although small they meet the minimum standards in the Public Health Act and are of sufficient size to accommodate a single lodger. The amended application also satisfies, subject to some limited building works, the requirements of the Building Code of Australia.

1. The incorporation of boardinghouse rules through a plan of management imposed as a condition of consent (exhibit B) is also important because this will assist in ensuring that the facility has no adverse social impact in the community.

1. Overall the planning evidence is that the amended development generally satisfies the relevant aims, objectives and standards outlined in the SEPP, the LEP 2002 and the DCP. The planners tell me that the boardinghouse facility makes a modest but important contribution to the social fabric of the local community and local economy through its continued operation.

1. Having regard to all of the evidence before me, including the assessment reports of Council's staff, the joint report of the experts, the concerns of the resident objector and my observations at the view there is no reason to refuse this application after an assessment under s79C of the Act. Therefore, I make the following orders:

(1)   The appeal is upheld.

(2)   Development application 1747/2010/DA-U (as amended by exhibit A) for use of the existing dwelling at 141 Lindsay Street, Campbelltown as a boarding house is approved subject to the conditions in Annexure A.

(3)   The exhibits are returned except exhibits A and 4.

Susan Dixon

Commissioner of the Court