Duong v Wollongong City Council

[2018] NSWLEC 1606

Land and Environment Court

New South Wales

Medium Neutral Citation:	Duong v Wollongong City Council [2018] NSWLEC 1606
Hearing dates:	7 November 2018
Date of orders:	28 November 2018
Decision date:	28 November 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application No DA2017/412 for the construction of a three storey boarding house with attic and basement car parking at Lot 10 DP 1096643, known as 4 Bourke Street, Fairy Meadow, subject to the conditions set out in Annexure A. (3) Exhibits 2, 4, 5 and 7 are returned.
Catchwords:	APPEAL – development application – boarding house – resident objections – whether compatible with character of local area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Wollongong Local Environmental Plan 2009
Texts Cited:	Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Hong Duong (First Applicant) Ha Pham (Second Applicant) Wollongong City Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicants) J Reilly, Wollongong City Council (Respondent)
File Number(s):	2018/60946
Publication restriction:	No

Judgment

1. COMMISSIONER: Immediately to the east of Fairy Meadow train station is a relatively small residential area bounded by the railway line to the west, Elliotts Road to the north, an industrial precinct to the south, and a university campus and sporting fields to the east. The area forms the southern portion of a larger area zoned R3 Medium Density Residential and comprises a range of dwelling types, from single storey dwellings to residential flat buildings. Within that area, at 4 Bourke Street, Fairy Meadow, Hong Duong and Ha Pham (“the applicants”) seek development consent to demolish a single dwelling and construct a boarding house. On 19 December 2017, Wollongong City Council (“the Council”), through its Independent Hearing and Assessment Panel, refused the applicants’ development application seeking the same. The applicants appeal against the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

2. The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (“LEC Act”), which commenced with a site view on 9 August 2018. The parties were unable to reach an agreement at or following the conciliation, but agreed to me disposing of the proceedings following a later hearing, pursuant to s 34(4)(b)(i) of the LEC Act.

3. In the period following the conciliation and prior to the hearing, the applicants sought and obtained leave to amend their development application in accordance with amended plans. The amended application is for a three storey boarding house with an attic within a 25deg pitched roof, together with basement car parking accommodating 16 car spaces and 6 motorbike spaces. The boarding house contains 29 boarding rooms, with 4 of those rooms located at the ground floor and 3 located within the attic. The attic rooms have small dormer windows. The ground floor also comprises the manager’s unit, reception area, bicycle storage area, communal space and a communal terrace. As a result of the amendment to the development application, the visible bulk of the proposed building has reduced as parking that previously occupied the ground level is now underground.

4. The amended development application results in a proposed development that addresses the concerns initially raised in the proceedings by the Council through its Statement of Facts and Contentions. As a result, the Council now agrees to development consent being granted, subject to appropriate conditions of development consent, including a condition requiring compliance with a Plan of Management.

5. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors.

6. For the reasons set out below, I have determined that it is appropriate to grant development consent. A boarding house is permissible in the zone, and the bulk, height and scale of the proposed built form meets the requirements of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”). I am also satisfied that the development is compatible with the character of the local area, and that there are no unacceptable privacy impacts.

The site and its locality

7. The site is known as 4 Bourke Street, Fairy Meadow and is legally described as Lot 10 of DP 1096643. It is situated on the northern side of Bourke Street, between Montague Street and Cowper Street. The site has an area of 1017m2 and frontage of 25.91m to Bourke Street. The site currently contains a single storey dwelling house.

8. Adjoining the site to the side and rear are single storey detached dwelling houses at 2 and 6 Bourke Street, and 13 Montague Street.

9. Bourke Street is currently characterised by low density residential development of one and two storeys, although a dual occupancy and residential flat building are on the southern side of Bourke Street. On the northern end of Montague Street, however, the predominant built form is multi-dwelling housing and residential flat buildings of one and two storeys in height.

10. The site is situated within 300m of Fairy Meadow train station, and the station is accessible on foot at the northern end of Montague Street.

The planning controls

11. The site is zoned R3 Medium Density Residential pursuant to the Wollongong Local Environmental Plan 2009 (“WLEP 2009”). Clause 2.3(2) of the WLEP 2009 requires the Court, in exercising the functions of the consent authority, to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives for the R3 zone 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.

12. Both “boarding houses” and “residential flat buildings” are permissible with development consent in the R3 zone.

13. The application is lodged pursuant to the SEPP ARH. The aims of the SEPP ARH are set out in cl 3, and include at (b) the objective “to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards”.

14. At cl 29 of the SEPP ARH, the policy sets out a number of grounds on which consent for a boarding house cannot be refused if certain criteria are met. It provides:

29 Standards that cannot be used to refuse consent

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

(b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or

(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, or

(ii)  20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

(2)  A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a) building height

if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,

(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:

(i)  in the case of development carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and

(ii)  in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and

(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.

(3)  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.

(4)  A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

15. As a result of cl 29(1)(c)(i) of the SEPP ARH and the permissibility of residential flat buildings in the zone, the maximum floor space ratio (“FSR”) established by cl 4.4 of the WLEP 2009 is subject to a bonus of 0.5:1. As a result, the maximum FSR allowable for a boarding house on the site is 1.25:1. The development has a FSR of 1.1:1 and therefore complies. As such, pursuant to cl 29(1) of the SEPP ARH, the development application cannot be refused on the basis of its density or scale.

16. Clause 4.3 of WLEP 2009 applies to prescribe a maximum height of 13m for the site, as shown on the Height of Buildings Map. The proposed development complies, with a maximum height of 13m. As such, pursuant to cl 29(2)(a) of the SEPP ARH, the development application cannot be refused on the basis of building height.

17. It is common ground that the “must not refuse” criteria in cl 29 of the SEPP ARH concerning solar access, private open space, parking and accommodation size are all similarly met, and that therefore development consent cannot be refused on any of those grounds.

18. Clause 30 of the SEPP ARH set out some standards for boarding houses that must be met, otherwise the consent authority “must not consent” to the development. These requirements concern the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager’s room, requirements for motorcycle and bicycle parking, and use of the ground floor on land zoned for commercial purposes. They therefore form the minimum standards required for a boarding house, specified at cl 30(1) as follows:

(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,

(f) (Repealed)

(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

19. Clause 30A of the SEPP ARH also prevents a consent authority from consenting to a development “unless it has taken into consideration whether the design of the development is compatible with the character of the local area.”

20. The Wollongong Development Control Plan 2009 (“WDCP 2009”) also applies to the site. Specifically, Part C Chapter C3 concerns controls with respect to boarding houses. Clause 3.2 provides that “Where a proposed boarding house has the built form of a dwelling house, multi-unit dwelling or residential apartment building, the relevant setback requirements of Chapter B1 Residential Development or B3 Mixed Use Development shall apply”. Chapter B1, at cl 6.4.2, requires that buildings up to 4 storeys (12 metres) are to have a minimum side and rear setback of 6m to a habitable room or balcony on the development site, or 3.5m where there is a non-habitable room or a blank wall.

Resident evidence and submissions

21. The development application was notified in accordance with the requirements of the WDCP 2009, on two occasions. A number of submissions were received throughout those notification periods. Further, on the listing of the appeal for a conciliation conference, a number of residents attended, gave evidence and made submissions on their objections to the development. Following termination of the conciliation and on listing the appeal for a hearing pursuant to s 34(4)(b), a further written submission was received from one of the resident objectors. The concerns of the residents, expressed in the written submissions and on-site at the commencement of the conciliation conference, can be summarised as follows:

• The building is of excessive height when compared to buildings in the locality,

• There will be overlooking from the balconies of the boarding rooms to adjacent properties,

• Increase in noise and disorderly behaviour, and this will also cause a social impact,

• There is insufficient parking provided,

• The additional traffic will cause problems for the local street network, and cause conflict with pedestrians.

• There will be overshadowing.

• There is not sufficient room on the streets for the bins, and waste bins should not be adjacent to the neighbouring residents.

• The proposed boarding house is out of character in the locality and inappropriate in a low-rise residential area.

• The proposed boarding house is a commercial development that will devalue the existing residential houses and is not suitable for the neighbourhood.

• There is inadequate landscaping and the setbacks are also inadequate.

• There is an increased risk of flooding of neighbouring properties.

• There is no evidence that it will actually provide affordable housing.

22. Dr and Mrs Curtis, two of the residents, also raised an objection on the basis that the proposed development will prevent the Council, with respect to this land, pursuing a recommendation (from 26 May 2009) to rezone land that is subject to a medium risk of flooding to R2 Low Density Residential. However, the Council, through its solicitor, indicated to the Court there has been no planning proposal or other strategic plan for the rezoning of the land the subject of the present application. The remainder of the concerns raised by the residents are dealt with in my consideration below.

Expert evidence of town planners

23. Mr Mark Adamson (engaged by the Council) and Mr Mark Shanahan (engaged by the applicants), town planners, conferred and prepared a joint report. Their evidence is that, as a result of the amendments to the application, each of the contentions raised by the Council on the original proposal is resolved. Their joint evidence is that the elevations now proposed are compatible with the existing and anticipated future character in the location.

24. In particular, Mr Adamson opines that the presentation to Bourke Street has been significantly improved as a consequence of the inclusion of basement car parking and the pitched roof. His evidence, with which Mr Shanahan agrees, is that the presentation is that of a 3-storey building with a pitched roof. He opines that the dormer windows are not evident from 3 of the 4 elevations, and will be hard to discern from the Bourke Street elevation. His evidence is also that the wall treatments provide articulation and a rhythm of elements that also assist the building integrating into the local area.

25. In considering the character of the local area, Mr Adamson’s evidence is that the existing housing stock must be given significant weight, which includes single dwellings as the predominant form in Bourke Street and surrounds. He notes, however, that the location also incorporates several residential flat buildings with which the development presents a consistent scale. He opines that this is also consistent with the R3 Medium Density zone, which anticipates a variety of housing types including multi dwelling housing and residential flat buildings. His evidence is that it is anticipated that the future character of the location will ultimately incorporate an increasing number of medium density developments. This analysis, with which Mr Shanahan agrees, supports the opinion of both experts that the proposed design is compatible with the character of the local area.

26. With respect to the setbacks, Mr Adamson notes that the habitable areas are predominantly setback 6m from each boundary, including all balconies. The outdoor communal space has been suitably located within the centre of the building on the northern rear garden area, and is limited to a terrace that is setback 6m to the neighbouring property. Further, he notes that activity in this location is contained with a balustrade and planter box, and that the terrace is enclosed on three sides.

27. To protect acoustic privacy, Mr Adamson opines that outdoor activity (including on balconies) should be limited to prior to 9pm on weekdays and 10pm on weekends. Whilst Mr Shanahan notes that the WDCP 2009, at C3 clause 5.1(d), requires management practices that prevent outdoor common open space from being used only between 10pm and 7am, the applicants have agreed to the weekday limitation proposed by Mr Adamson. Further, Mr Adamson and Mr Shanahan agree on the imposition of a condition of consent that requires compliance with a measurable noise criterion (5db above the background noise). Mr Adamson’s evidence is that this is consistent with paragraph 3f of the Plan of Management, which intends that noise levels do not cause offensive noise to neighbours or other residents of the boarding house. Mr Adamson also points out that there is a full time manager residing at the premises who is responsible for enforcing the Plan of Management and the house rules.

23. With respect to concerns regarding visual privacy, Mr Adamson notes that the proposal has a number of windows to bedrooms and bathrooms that are set back by 3.5 m, which he considers can be the subject of a condition of consent requiring horizontal fixed louvres that prevent downward looking into adjoining private open spaces.

24. Finally, Mr Adamson and Mr Shanahan agree that issues with respect to the adequacy of landscaping can be resolved by a condition of consent requiring an amended landscape plan. Specifically, they agree on the following condition:

“A final Landscape Plan is required to be submitted to the Principal Certifying Authority, prior to the release of the Construction Certificate. The final Landscape Plan shall address the following requirements:

a) Provide 2 x 200 litre trees to the front setback. The species shall be Syzygium paniculatum (Magenta Lilly Pilly). These trees are to be planted within the designated deep soil zone (not in a planter box) and are to be located 1.5m from the front boundary and with a minimum of 5m between the two trees;

b) the final landscape plan is to show levels for the planters and gardens, with a view to ensuring the sustainability of a high quality landscape outcome;

c) the final landscape plan is also to show the planter box adjoining the northern communal open terrace area extended to 2 metres in width (not including walls);

d) the same plan is to contain details of the rear lawn area and garden beds over the basement podium to identify soil depths and the proposed sub-surface drainage necessary to permit the installation and continued retention of soil and plantings;

e) the nine proposed Bambusa gracilis located mid-block on the western boundary are to be deleted from the final plan and replaced with one of the Syzygium species listed at condition 50;

f) the replacement in the final plan of the nominated Podocarpus elatus from the front setback with a Brachychiton acerifolius (Illawarra Flame) or a tree to 10m height and 6m spread;

g) the replacement in the final plan of the nominated Lagerstroemia “Natchez” from the front setback and its replacement with a Brachychiton acerifolius (Illawarra Flame) or a tree to 10m height and 6m spread.

The completion of the landscaping works as per the final approved Landscape Plan is required, prior to the issue of Occupation Certificate.”

Development consent should be granted

30. On the basis of the expert evidence before the Court and for the following reasons, I accept that it is appropriate for development consent to be granted, subject to the agreed conditions.

31. Firstly, I accept the evidence that the proposed boarding house has a presentation of a 3-storey building with a pitched roof, which is compatible with the character of the local area. In determining the character of the local area, I accept the evidence that the current built form is of a mixed building typology, but that the area is zoned for R3 medium density residential. This zoning means that the future character is for a higher density than the single storey dwellings that are the predominant form on Bourke Street in the immediate locality of the site. As such, I accept the evidence of Mr Adamson that the development presents a scale that is consistent with the existing residential flat buildings, and with the zoning of the area, which anticipates a variety of housing types including multi dwelling housing and residential flat buildings. I accept his evidence that the future character of the area will incorporate an increasing number of medium density developments. As such, consistent with cl 30A of the SEPP ARH, the built form of the boarding house is compatible with the character of the local area.

32. Secondly, I accept the evidence that the setbacks of the proposed built form are acceptable, and that there is therefore no unreasonable impact on visual or acoustic privacy. Consistent with the WDCP 2009, the balconies are setback 6m from the boundary, as is the communal open space. Similarly, the habitable rooms are set back 6m from the boundary, with only a few windows at the 3.5m setback, which will be the subject of a condition requiring louvres that prevent downward looking into adjoining private spaces. Accordingly, this prevents overlooking and provides visual privacy consistent with the controls in the WDCP 2009. I accept the evidence that the acoustic privacy of neighbouring residents will be maintained through conditions requiring compliance with an acoustic criterion and limiting use of outdoor spaces to up to 9pm on weekdays and 10pm on the weekend.

33. Further, for the reasons expressed below, the remaining concerns expressed by the residents do not warrant refusal of the development application.

Height and scale

34. Despite the concerns of the residents with respect to the scale and height of the boarding house, the proposed built form complies with the height control and the FSR control (see [14-16] above). As a result, it is clear from cll 29(1) and (2)(a) of the SEPP ARH that the application cannot be refused on the basis of the building height, density or scale.

Parking

35. A number of residents asserted that there were insufficient parking spaces provided, which would create additional parking problems on the street. However, cl 29(2)(e) of the SEPP ARH prevents me from refusing the development on the basis of parking if at least 0.5 parking spaces are provided for each boarding room (subcl (2)(e)(iia)) and 1 parking space is provided for each manager’s room. The proposed development is for 29 boarding rooms and one manager’s room. Applying the criteria of cl 29(2)(e), 16 car spaces are required. As 16 car parking spaces are provided in the basement, cl 29(2)(e) of the SEPP ARH precludes me from refusing the development application on the basis of the parking.

Landscaping

36. One resident expressed concerns about the adequacy of landscaping. Notwithstanding this concern, Mr Adamson and Mr Shanahan agree that with the condition of consent requiring a further landscaping plan, there will be adequate landscaping provided. I accept this evidence.

Traffic and conflicts with pedestrians

37. A number of residents asserted that there would be additional traffic generated by the proposal, as well as an increased potential for conflicts between pedestrians and cars. However, there is no evidence that the additional traffic will cause any of the local roads to exceed their environmental capacity. Rather, the assessment report by the council officer that was tendered in evidence makes it clear that the application was reviewed by the Council’s engineers and no traffic calming measures are required. Further, the proposed plans demonstrate that a pedestrian footpath will be constructed along the full length of the development frontage. This will improve pedestrian safety along the frontage, as no footpath is currently present, and reduce the potential conflict between pedestrians and traffic. Finally, the width of the driveway is sufficient to allow passing of vehicles entering and exiting the site, and to allow vehicles to exit the site in a forward direction. As such, I do not accept that the additional traffic generated by the proposal will cause an unreasonable impact or an unacceptable risk to pedestrians.

Noise and behaviour of residents

38. A number of the local residents object to the boarding house on the basis that it will increase the number of university students living in the area and it will increase anti-social behaviour. This included concerns about increased graffiti, stolen plants, noise generated by parties, and rubbish.

39. Despite these concerns, the operation of the boarding house will be subject to a Plan of Management which is enforceable as a condition of development consent. The Plan of Management includes, inter alia, house rules that limit the hours that outdoor areas and the communal areas can be used, and that prevent visitors staying overnight. The house rules also limit the hours in which musical instruments or sound equipment can be used, and make it clear that lodgers are to respect the right of other lodgers and neighbours to the quiet enjoyment of their premises.

40. Additionally, a boarding house manager will be responsible for enforcing the house rules, and managing the residents and complaints about their behaviour. The Plan of Management also makes it clear that complaints can be made to the Manager, and provides for how those complaints should be recorded and dealt with.

41. Further, the proposed conditions of development consent also set out the responsibilities of the manager, restrict the hours of use of the communal open space, and require a contact phone number for complaints to be displayed near the front entrance to the building. The conditions of consent also include limiting visitor hours to between 7am and 10pm, and provide that the minimum duration of stay for a lodger in any boarding room is 3 months.

42. It is clear, therefore, that through the Plan of Management and the conditions of development consent there are sufficient measures in place to prevent and manage any anti-social behaviour. As such, I’m not satisfied that the concerns of the residents with respect to anti-social behaviour warrant refusal of the application.

Risk of flooding

43. One of the residents also raised an objection on the basis that the proposed plan does not adequately take into account the possibility of future flooding, as Bourke Street was flooded in the 1998 floods.

44. Contrary to this submission, the proposed development provides a void between the basement and ground floor to allow for flood storage, and the Council’s position is that the proposed development complies with the requirements of Chapters E13 and E14 of the WDCP 2009 concerning stormwater and floodplain management.

Overshadowing

45. Despite concerns of the residents with respect to overshadowing, the shadow diagrams demonstrate that any overshadowing of adjacent properties during mid-winter is minimal and confined to the early morning or late afternoon periods.

Bins and waste management

46. Contrary to the objections to the boarding house on the basis of whether there is adequate room for bins, the plans demonstrate that adequate room exists. Further, I accept that waste will be appropriately managed in accordance with the Plan of Management and with the oversight of the boarding house manager.

Outcome of the appeal

47. For the above reasons, I consider that the proposal complies with the relevant controls and is compatible with the character of the local area. Development consent should therefore be granted subject to the agreed conditions of development consent, including the requirement for compliance with the Plan of Management.

48. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No DA2017/412 for the construction of a three storey boarding house with attic and basement car parking at Lot 10 DP 1096643, known as 4 Bourke Street, Fairy Meadow, subject to the conditions set out in Annexure A.

3. Exhibits 2, 4, 5 and 7 are returned.

________________

Commissioner Gray

Annexure A (with POM) (362 KB, pdf)

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Decision last updated: 28 November 2018