Easter Concrete Group Pty Limited v Marrickville Council

Case •

[2014] NSWLEC 1084

•

13 May 2014

Land and Environment Court


New South Wales

Medium Neutral Citation: Easter Concrete Group Pty Limited v Marrickville Council [2014] NSWLEC 1084
Hearing dates:13 February and 3 April 2014
Decision date: 13 May 2014
Jurisdiction:Class 1
Before: Hussey C
Decision:

(1)The appeal is dismissed.

(2)Development consent to DA201300309 for the demolition of the existing dwelling and construction of a nineteen-room boarding house at 18 Gannon Street, Tempe is refused.

(3)The exhibits may be returned except for 2, A, B and C.

Catchwords: Development application: Boarding house; parking provision, s 94 contributions
Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Marrickville Local Environmental Plan 2011
Marrickville Development Control Plan 2011 ("DCP"), as amended (i.e. DCP 2013)
Category:Principal judgment
Parties:

Easter Concrete Group Pty Limited (Applicant)

Marrickville Council (Respondent)
Representation:

BCP Lawyers & Consultants (Applicant)

Marrickville Council (Respondent)
Mr M Driscoll (Applicant)

Mr J Strati (Respondent)
File Number(s):10895 of 2013

Judgment

Background

  1. This appeal was lodged against council's refusal of a development application for the demolition of the existing dwelling and construction of a nineteen-room boarding house at 18 Gannon Street, Tempe. The building is of a two-storey design with two car parking spaces within the front setback area. It is proposed that the boarding house be used for affordable housing for at least the first five years of occupation.

  1. The appeal commenced by way of a s 34 conference where the contentions included that the proposal was not compatible with the character of the local area, it does not encourage community safety and the development would result in a poor living environment.

  1. Following the s34 conference the applicant undertook some amendments resulting in amended contentions comprising:

  • Inadequate provision of parking, and
  • s 94 contribution.

  1. In the absence of any s 34 agreement the appeal proceeded to a merit hearing.

The site

  1. The site is located on the southern side of Gannon Street near its intersection with the Princes Highway Tempe. It is described as Lot 13 in Deposited Plan 5658.

  1. The site is rectangular in shape with a primary frontage of approximately 11.58 m to Gannon Street, a depth of 61.98 m along the western side boundary, a depth of 60.26 m along the eastern side boundary and a width of 11.74 m along the rear boundary.

  1. The existing improvements on site include a single storey dwelling house with a detached carport to the front of the site and a detached metal shed to the rear of the site.

  1. The surrounding area comprises a mixture of single storey and two storey dwelling houses to the east, west and south and a childcare centre and STA Bus Depot (Tempe Bus Depot) to the north (being on the opposite side of Gannon Street).

  1. The site is located about 290 m walking distance to Tempe Train Station and 185 m walking distance to bus stops along Princes Highway.

Planning controls

  1. The following planning controls are relevant:

  • State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH"). The relevant part/division is Part 2 - New Affordable Rental Housing, Division 3 - Boarding Houses.
  • State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
  • Marrickville Local Environmental Plan 2011 ("LEP") under which the site is zoned R2 Low Density Residential under the LEP and the proposed development is permissible with development consent under the LEP and the ARHSEPP.
  • Marrickville Development Control Plan 2011 ("DCP"), as amended (i.e. DCP 2013).

The evidence

  1. Detailed evidence was presented by:

  • Mr J Bertacco, Council's traffic consultant
  • Mr P Trethewey, Applicant's traffic consultant
  • Ms H Atwal, Council's town planner
  • Mr G Chapman, Applicant's consulting planner

Parking

  1. The parking issue concerns the applicant's proposal to provide two on site car spaces, which is less than the five car spaces (as rounded up), required under the provisions of the current DCP 2011 (as amended in 2013). However at the time of lodgement of the development application DCP 2011 was current and it required two car spaces. The council experts also do not consider that the proposal is acceptable in terms of the SEPP ARH provisions because it does not provide four car spaces to enable unconditional consent, in respect of parking provision.

  1. The amended DCP 2013 contains a number of objectives in 2.10.1, including:

01 To balance the need to meet car parking demand on - site to avoid excessive spillover on to streets, with the need to constrain parking to maintain Marrickville LGA's compact urban form and promote sustainable transport....
05 To allow for appropriate variation of provision rates and design parameters for developments with particular characteristics, such as affordable housing or re-use of older buildings.

  1. Part 2 of the DCP includes the following generic provisions:

2.10.4 Provision rates approach
The main elements of the approach to parking provision rates in this DCP are:
1 Car parking provision is slightly constrained across the entire LGA as a demand management measure;
2 Car parking provision rates are further constrained in accessible areas;
3 The approach adopted by the DCP is supported by other private and public domain parking management policies and actions that collectively aim to improve the management of parking and promote sustainable transport across the LGA.
Justification for providing car parking at a lower rate than that specified in this section of the DCP could include:
1. Peak parking and traffic activity occurs during periods where surrounding parking demand is lowest
2. Existing site and building constraints make provision of car parking impractical;
3. Located adjacent to high-frequency public transport services and/or urban services;
4. Includes management regimes to minimise car use, such as workplace travel plans or on-site carshare schemes;
5. Provides a business or social service that benefits the local community and contributes to the vitality of the area;
6. Development targeted to demographic sector with low car use/ownership;
7. Safety of motorists, pedestrians and cyclists is unduly compromised by provision of parking;
8. Development contributes to heritage conservation of the building and setting; and
9. Parking for the development is consistent with the aims and objectives of this section of MDCP 2011.

  1. The DCP differentiates three areas within the overall council area where different parking rates are required as follows:

Parking Area 1, where car parking is most constrained, is defined as:
· The suburb of Newtown, but excluding land to the west of Edgeware Road;
· The suburb of Camperdown, but excluding land to the north of Salisbury Road, to the west of St Mary's Street, to the north of Trade Street and to the west of Kingston Road
· The suburb of Enmore, but excluding land to the west of Liberty Street, to the south of Stanmore Road and to the West of Enmore Road; and
· 200m around railway stations
· All business zones within the major centres of Marrickville, Dulwich Hill and Petersham
Parking Area 2, where car parking moderately constrained, is defined as:
· 200m around Parking Area 1
· 200m around light rail stops and Strategic Bus Corridor routes
· All business zones not within Parking Area 1.
Parking Area 3, where car parking is least constrained, is defined as all land not within Parking Areas 1 & 2.

  1. The subject land is within the "Parking Area 2" designation where Table 2.10.5 requires the provision of parking five car spaces (being 4.75 spaces rounded up) for boarding houses on the basis of:

"1 for caretaker + 0.25 per unit for residents".

  1. The parking contentions were addressed by Mr Bertacco and Mr Trethewey in their joint conference based on the provisions of Pt 2.10.4 of the DCP dealing with the following justification criteria for lower rates of parking.

  1. The first contention is that "parking surveys relied upon by the Applicant to establish that car ownership rates within the proposed development will not be the same as those expressed in the DCP are unreliable as they relate to old style and very low cost boarding houses".

  1. Insofar as the Applicant arranged for five overall parking surveys of selected boarding houses, the experts agree that of the three sites, only the surveys of the following two boarding houses can be relied upon to indicate the car ownership rates within the proposed development:

  • 2 Thomas Street, Lewisham (SITE 1);
  • 59 Liverpool Road, Summer Hill (SITE 2).

The surveys indicated the following:

  • SITE 1: 10.0 tenants per car (10 tenants, 1 car owned);
  • SITE 2: 10.3 tenants per car (31 tenants, 3 cars owned);
  • COMBINED: 10.25 tenants per car (41 tenants, 4 cars owned).

  1. Accordingly, the experts agree that this survey shows the application of the combined rate of 10.25 tenants per car to the maximum occupancy of the proposed boarding house of nineteen tenants, forecasts that the Gannon Street proposal would have a car ownership (and parking demand) of ~two spaces (1.85 spaces).

  1. With regard to the site constraints making parking in accordance with the DCP impractical, it was agreed that the site is constrained by virtue of the site's overall width of 11.58 m, which is insufficient to provide for the required width for basement parking in accordance with AS2890.1-2004 Part 1: Off-street car parking. This is based upon the fact that an AS2890.1 compliant single-sided aisle basement car park would require a minimum of width of 11.9 m.

  1. In these circumstances, Mr Bertacco and Mr Trethewey agree that the inability of the site to accommodate a design that complies with AS2890.1 is sufficient justification to conclude that the site is constrained. However, it is also agreed that a non-compliant basement car park could be designed to overcome this aisle width restriction issue and provide a satisfactory amenity by increasing the car parking space width to 2.7 m.

  1. In regard to whether the site is considered to be adjacent to high- frequency public transport services, the experts agreed that there is no definition of "adjacent" in the DCP. Accordingly for comparative purposes they considered a "typical" property at 14 Griffith Street, which fronts the street alongside the Tempe station. From this they agree that the subject site at 18 Gannon Street is not 'adjacent' to high-frequency public transport services, compared 14 Griffith Street, which is directly opposite the entrance to Tempe Rail Station.

  1. Notwithstanding this, they say that standard transport guidelines advise that

  • Train stations draw from a walking catchment up to 800 m surrounding the station, and
  • Bus stops draw from a walking catchment up to 400 m surrounding the bus stop.

  1. Consequently, in relation to the subject site:

  • Tempe Train station is 290 m walking distance (well within the 800 m catchment distance), and
  • The nearest bus stop on Princes Highway is 190 m walking distance (well within the 400m catchment distance) with three other bus stops also within 400 m.

  1. Conversely from the survey in relation to the site at 14 Griffith Street site, which is 'adjacent' to the station:

  • It is 20 m walking distance to Tempe Train station, and
  • No bus stops are located within the 400 metres walking distance.

  1. Therefore, based on these facts, they agree 18 Gannon Street site has very good access to public transport, both train services at Tempe Station and bus services along Princes Highway. It is also agreed that (using 14 Griffith Street as an example) it has better access public transport than an 'adjacent' site.

  1. With regard to whether an adequate assessment has been made of when peak parking and traffic demand associated with the proposed development occurs and what the local parking/traffic conditions are at that time, the traffic experts agree there is sufficient available on-street parking capacity throughout the day to accommodate the two space shortfall. Furthermore, if the development was approved with two on-site parking spaces, it would have minimal implications for on-street parking availability. However no details of the surveys resulting in this conclusion were presented to the Court.

  1. In summary then, Mr Bertacco's opinion is that:

  • further detailed parking surveys need to be undertaken to confirm that 2 car spaces is adequate.
  • parking needs to be provided in accordance with the DCP with five spaces but he accepted that four spaces satisfies the SEPP.
  • the parking demand of two spaces based on the recent survey results is considered a minimum. But additional surveys would need to be undertaken to confirm that the provision of two parking spaces is adequate for nineteen self contained boarding units and therefore considers that four parking spaces should be provided in accordance with the SEPP.
  • that four carspaces are able to be satisfactorily provided in a basement carpark even though the carpark will strictly not be AS2890.1 compliant and this is his preferred outcome.

  1. Against this, Mr Trethewey opinion is that:

  • the proposed parking provision of two spaces is in fact in accordance with the objectives of Council's DCP as it can be varied where justification is provided.
  • this justification is provided by identifying that the site is constrained and that with regard to public transport accessibility, it has a location that in this instance has been demonstrated to be better than a site 'adjacent to Tempe train station.
  • car ownership forecasts for the proposed Gannon Street boarding house based on the aggregation of survey results from two agreed comparable sites is for two spaces rather than for 4 or 5 spaces.
  • these 2 spaces are provided on-site and satisfy the actual demand, which is neither a maximum nor a minimum.

Section 94 Contribution

  1. The other issue that arose during the appeal concerns the s 94 Contributions detailed in the draft conditions. Draft condition 30 states:

30. This condition is imposed in accordance with section 94 of the Environmental Planning & Assessment Act 1979.
Prior to the issue of a Construction, the Council must be paid a monetary contribution of $146,238.03 indexed in accordance with Marrickville Section 94/94A Contributions Plan 2014 ("CP") from the date of this Notice of Determination until the date of payment.
The contribution payable has been calculated in accordance with the CP and relates to the following public amenities and/or services and in the following amounts:
Community Facilities $18,641.86
Plan Administration $2,867.48
Recreation Facilities $125,157.61
Traffic Facilities· $-428.92
A copy of the CP can be inspected at Council's offices at 2-14 Fisher Street, Petersham or online at contribution must be paid either in cash, by unendorsed bank cheque (from an Australian Bank only) or via EFTPOS (Debit only).
Reason: To ensure provision is made for the increase in demand for public amenities and services required as a consequence of the development being carried out.

  1. The current s 94 Contribution Plan 2014 was adopted by Council on 3 December 2013 and applies to all developments from 1 January 2014. However the subject development application was lodged on 15 July 2013 when the previous Marrickville Contribution Plan 2004 - Amendment 4 applied and it did not impose a s 94A contribution on affordable housing, in accordance with the s 94E Ministerial Direction of 10 November 2006. Insofar as the current s 94 CP applies to developments after 1 January. 2014, it does not have any savings clause in respect of the prior lodgement time of development applications.

  1. However s 2.17 of the s 94 CP 2014 deals with exemptions on the following basis:

  • Section 94E Directions by the Minister, as well as State and regional planning policies can from time to time override the provisions of this Plan. Also, Council may at its discretion provide exemption to the requirement to pay section 94 or 94A development contributions for certain developments.
  • Council may at its discretion reduce or forego the requirement to pay section 94 contributions or section 94A levies for particular developments considered to provide a planning, community or social benefit.
  • The type of developments where this may be appropriate are affordable housing, boarding houses that are considered acceptable in planning terms and which are considered to provide a particularly needed and desirable community benefit for the area and other housing provided by a public housing provider.
  • Council notes that it will not agree lightly to reducing or forgiving section 94 contributions because in such cases it is then up to Council to contribute any shortfall in contributions paid and this must be from other than section 94 funds.

  1. The relevant s94E Directions are:

  • 10 November 2006; which does not allow for the imposition of a s 94A levy on a range of developments including;

"b) for the sole purpose of affordable housing".

  • 14 September 2007; provides that neither s 94 contributions nor s 94A levies may be imposed on development consents granted to a social housing provider (as defined in State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 2)) for any form of seniors housing (also as defined in State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 2)).

  1. It is Mr Chapman's primary opinion that s 94 and 94A do not apply because Boarding Houses are excluded in the table at s 1.4 of the s 94 CP 2004 and s 94 contributions cannot be applied to affordable housing in accordance with the s 94E Directions dated 10 November 2006.

  1. The basis for Mr Chapman's opinion is that the boarding house is acceptable in planning terms and provides a planning, community and social benefit based on the following:

  • The boarding house is compatible with the character of housing in the area, will not result in unreasonable amenity impacts and meets the objectives of the R2 - Low Density Residential zone - To provide for the housing needs of the community within a low density residential environment.
  • The nineteen room boarding house (including four accessible rooms) provides affordable and accessible housing within the catchment of existing infrastructure, 300m of Tempe Railway Station and 180m to bus services on the Princes Highway.
  • The boarding house provides a social and community benefit by providing affordable housing. The applicant will enter into a Deed of Agreement with Housing NSW. The rooms will rent at rates determined by the Office of State Revenue (approximately $230/week) for at least five years. The median rent for a one bedroom unit in the Marrickville LGA is $380 per week (Rent and Sales Report December Quarter 2013). The Deed of Agreement could be imposed as a condition of consent.
  • Housing NSW has confirmed that there is significant need for affordable housing in the Marrickville LGA. The eighteen room boarding house provides for affordable accommodation for a range of people being a social and community benefit.

  1. Against this Ms Atwal says that the proposed boarding house is not acceptable in planning terms and does not provide a planning, community and social benefit that would allow for the exemption under s 2.17 of the Contribution Plan 2014 based on the following reasons:

  • The development is not acceptable in planning terms. The development does not provide sufficient on-site car parking in accordance with the provisions of the ARH SEPP. The lack of car parking within the development would impact on the availability of on-street car parking within the surrounding locality.
  • The site is located within an accessible area; however the development does not provide the number of off-street car parking spaces required for an accessible area under the ARH SEPP. The shortfall in off-street car parking would increase the need and demand for infrastructure i.e. public transport utilised by the occupants of the development.
  • In accordance with Part 2.5 of Marrickville Development Control Plan 2011, the development provides the minimum amount of adaptable/accessible facilities similar to the prescribed requirements for other forms of residential accommodation. As such, the development does not provide any greater community or social benefit than other forms of residential accommodation within the area.
  • The email from Housing NSW (Annexure 2) stipulates that a pre-approval has been granted for the applicant to enter into a Deed of Agreement with Housing NSW to ensure the boarding house will be used as affordable housing for at least five years. The terms of the Deed of Agreement have not been provided and the pre-approval does not demonstrate that any formal approval has been issued by Housing NSW. Given this, the development is not affordable housing and will not provide social and community benefit in this regard
  • The proposed five year period for the boarding house to be utilised as affordable housing is inadequate considering the potential life span of the building and the demand it will generate on the public infrastructure within the area. In accordance with the ARH SEPP, infill housing is required to be affordable for a minimum period of ten years, managed by a registered community housing provider and such restrictions are required to be registered against the title of the property.
  • The Table titled 'Where do we need affordable housing' contained Annexure 2 identifies Marrickville Local Government Area (LGA) as a high need area for affordable housing. This analysis is based on 2011 Census data and does not consider that since 2011 Marrickville LGA has had an overwhelming amount of large scale new-generation boarding houses (similar to the proposed development) approved and constructed throughout the council area. It is considered residents of new-generation boarding houses place a large need and demand on Council's infrastructure. The Section 94 Contributions would sustain the on-going need/demand for the infrastructure.
  • No statistical evidence has been provided to suggest that boarding house developments are limited in the Tempe area and that there is a demand for such accommodation in this particular area of the Marrickville LGA.

  1. In support of their disparate opinions on the appropriateness of imposing s94 contributions, the planners discussed the notion of distinguishing between "traditional" and "new generation" boarding houses. This notion apparently arises from information in the Council report of 3 December 2013, which dealt with the, adoption of the S94 CP2013. The report states that following the public consultation:

"One submission was received to the public exhibition from the Boyce Group concerning the draft Plan. The Boyce Group has been involved in the development of several boarding house developments in the Marrickville LGA which have been categorized as "new generation" boarding houses. The submission notes that Council's current s94 Plan does not levy section 94 contributions on boarding house developments and that the imposition of a contribution will impact the viability of this type of accommodation.
In responding to the submission, it should be noted that the "new generation" style of boarding house cater for a different demographic than the traditional type of boarding house and the residents of these premises place demand on Council's infrastructure to the same extent as residents of other forms of residential accommodation. The exception to this is in respect to traffic generation due to lower car parking and ownership rates and in this respect the rate for boarding houses does not include a contribution for traffic facilities and hence there is a discount factor that already applies within the draft Plan for boarding houses.
Additionally, since the commencement of the Affordable Housing SEPP there has also been an increase in applications for large scale boarding houses with self contained rooms. Should Council continue the past practice of not levying section 94 contributions for the new typology boarding houses the future under supply of public infrastructure and facilities will be exacerbated. It should also be noted that any contributions which Council's forgoes under the new Plan need to be funded from other sources and in this context the existing community would be subsidising these developments."

  1. Accordingly, I note that the social planner's assessment states (Ex 1 Tab 2A):

"The need to preserve and increase affordable housing for households with very low, low and moderate incomes is recognised in the Marrickville Affordable Housing Strategy. The Strategy also highlights the importance of 'traditional' boarding houses in the LGA, which provide affordable accommodation for residents on very low incomes. Details of proposed rents, and comparison with the household income of the potential residents have not been provided, so it is not possible to verify whether the proposal will meet the needs for affordable boarding house accommodation in Marrickville.
Given that the proposed boarding house rooms all have private kitchen and bathroom facilities, it is likely the rents would be higher than those paid for a traditional boarding house room in Marrickville (traditional being a boarding house with shared facilities, purpose built as supported accommodation, or one fitted into an existing building). Further it is unlikely the proposed boarding house will provide accommodation for those most in need of low rental housing or those experiencing homelessness.
It is apparent that the 'new generation' boarding houses that are operating and being proposed in Marrickville are able to charge higher rents than 'traditional' boarding houses. The provision of self-contained accommodation, and market competition, is resulting in an increase in rental for boarding rooms. An increase in rent levels will contribute to an overall increase in property and housing costs in Marrickville, potentially encourage the conversion
or loss of 'traditional' boarding houses, may contribute to a lack of studios and one bedroom units, and have a negative impact on housing affordability in Marrickville. This impact will be cumulative as further 'new generation' boarding houses are developed.
The proposed boarding house is considered to have negative social impact on affordable housing, given that affordability has not been demonstrated in the application. It is recommended that the applicant be required to demonstrate that the boarding house rooms will be affordable through provision of information on proposed rent levels.

  1. Mr Chapman's position is that insofar as the council report makes a distinction between 'new generation' style boarding houses and 'traditional' boarding houses, the subject boarding house will cater for a similar demographic to a 'traditional' type of boarding house based on the following:

  • The boarding rooms (subject to the Deed of Agreement with Housing NSW) will be let at a comparable rate to a 'traditional' type boarding house providing accommodation for a range of people.
  • The boarding house provides four accessible, an accessible parking space and communal room providing for people with a disability
  • The nineteen room boarding house is similar to the number of rooms in a 'traditional' type of boarding house, significantly smaller than a number of applications for 30+ boarding houses in the Marrickville LGA.
  • The smaller scale proposal with communal room and large open space area of 143m2 (SEPP -ARH 2009 requires 20m2) will have less demand for recreation and community facilities than a large boarding house.

  1. However, Ms Atwal disagrees with this classification and considers that the proposal is of the "new generation" type where discretion to forego s 94 contributions does not apply in this case. Her opinion is based on the following points:

  • This development is a new generation boarding house as the development is a new build that provides self contained rooms with en-suite bathrooms and kitchenette facilities in accordance with the ARH SEPP.
  • A traditional form of boarding house contains bedrooms with shared bathroom and kitchen facilities. A traditional form of boarding house is usually in the form of adaptive reuses of existing dwelling houses. Also such boarding houses are identified as Class 1b buildings under the Building Code of Australia, which are not permitted to have more then twelve lodgers.
  • In Council's Business Paper for the Council Meeting of Tuesday, 3 December 2013 at which Contribution Plan 2014 was adopted it was identified those occupants of new generation boarding houses place a demand on Council's infrastructure to the same extent as residents of other forms of residential accommodation.
  • The development does not provide sufficient on-site car parking in accordance with the provisions of the ARH SEPP. The shortfall in car parking within the development would increase the need and demand for infrastructure i.e. public transport utilised by the occupants of the development.
  • The site is located within a catchment which contains well established infrastructure. However, the residents within development will place an additional demand on the existing infrastructure similar to the residents of the surrounding dwelling houses. Any forgone contributions under Contributions Plan 2014 need to be funded from other sources and in this context the existing community and other developments would be subsidising this development,
  • The site is currently occupied by a dwelling house with approximately four occupants and the proposed boarding house would be an intensification with nineteen lodgers. This places a larger demand on the public infrastructure then the existing dwelling house.

  1. Accordingly it is Mr Chapman's opinion that the imposition of the s 94 contribution of $146,283.03 may jeopardise the implementation of the Deed of Agreement with Housing NSW. If the contribution is imposed rooms may be let at market rate, being less affordable potentially impacting on the availability of accommodation for a range of people.

  1. Mr Chapman's conclusion is that boarding houses were excluded from the s 94 Contrbutions Plan (2004) and s 94A contributions cannot be imposed pursuant to the s 94E Direction on development for the sole purpose of 'affordable housing'. This based on the following provisions of the SEPP - ARH:

affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.
(1) In this Policy, a household is taken to be a very low income household, low income household or moderate income household if the household:
(a) has a gross income that is less than 120 per cent of the median household income for the time being for the Sydney Statistical Division (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or
(b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme.
(2) In this Policy, residential development is taken to be for the purposes of affordable housing if the development is on land owned by the Land and Housing Corporation.

  1. In support of this conclusion that the development represents affordable housing, Mr Chapman says that:

the 2011 Census Statistics state that the median weekly household income for Greater Sydney is $1447. 120% of the median is $1736.40 per week. The Deed of Agreement with Housing NSW will rent rooms at $230 per week being 15% of the median household income and 13% of the median income at 120%.

Conclusion

  1. Having considered the evidence, the submissions and undertaken a view, it is apparent that a boarding house is a permissible development on the subject site within the existing R2 Low Density Residential zone. It is also apparent that the initial design contentions have been substantially addressed and the threshold issue then concerns whether this proposal for a boarding house reasonably satisfies the criterion for affordable housing, notwithstanding the deficiency of two on site car parking spaces. If it does, then conditional consent could be granted with exemption from any s 94 levy.

  1. An interesting aspect of the associated evidence is the planner's reference to the categorisation of "traditional" and "new generation" boarding houses, which apparently cater for a different demographic who have higher expectations in terms of provision and access to public infrastructure. Accordingly, the council considers that these categories of boarding house development should pay the designated s 94 levy. The exception is that there is a lower rate of traffic generation when compared with other forms of residential development and therefore no contribution towards traffic facilities is required.

  1. However, this differentiation of boarding houses is not incorporated within the council controls, especially the s 94 CP and therefore I give it diminished weight. Notwithstanding this, I have considered Ms Atwal's evidence that the proposal is of a similar design to other "new generation" boarding house developments in the LGA, which provide upgraded facilities compared to the older "traditional" boarding houses.

  1. Insofar as the applicant relies in part on the provisions of SEPP ARH and associated s 94E Ministerial Directions that s 94 contributions should not be imposed on this type of "affordable housing" development, cl 29 of SEPP - ARH designates the standards that cannot be used to refuse consent. The designated standard for car parking is four on site spaces and as the proposal is deficient by two spaces, it does not satisfy the deemed to comply car parking requirement and is unacceptable in planning terms according to Ms Atwal.

  1. Nevertheless the merits of the proposal have to be considered because the two car space deficiency does not necessarily result in the refusal of the application under the SEPP ARH or the council development controls in the DCP. In fact the s 2.10.4 of the DCP provides justification criteria for lower rates of parking.

  1. Considering Mr Chapman's aforementioned calculation that the forecast rent is to be $230/week, then it would satisfy the criterion of "no more than 30% of the gross income in rent". Consequently, under the s94E Direction it would not be appropriate to impose a s 94 contribution and the applicant would avoid the $146,238.03 levy under the s 94 CP (2014).

  1. However, in this scenario it seems to me that the future maintenance of the "affordable housing" should be secured for a reasonable period. In this regard I note the following correspondence from the Centre for Affordable Housing, Housing NSW:

To whom it may concern,
We have been in negotiations with the owner of 18 Gannon St Tempe v/ho has received pre-approval to enter into a Deed of Agreement with Housing NSW. This will ensure the boarding house is used for affordable housing for at least five years As part of this agreement, rooms must be rented in accordance with the tariff thresholds determined by the Office of State Revenue in order for boarding houses to be eligible for land tax exemption.
The proposed boarding house is located in a "High Need" area for affordable housing, being located in the Marrickville LGA. Given the significant shortage of affordable housing across Sydney and within Marrickville LGA this affordable housing development will provide much needed affordable accommodation and a social benefit to the community.

  1. This correspondence indicates to me that there is no guarantee in place for the "affordable" boarding house. If this Deed of Agreement is not executed then another rental scenario could occur as stated by Mr Chapman at para 42, whereby the rooms could be let at "market rent", the amount of which is not specified. Under these circumstances there may be expectations from these higher paying renters to have access to the wider range of facilities identified for "new generation " boarding houses and therefore it would be appropriate to impose reasonable s 94 levies.

  1. Accordingly, any consent under this scenario should be conditional on satisfactory execution of the Deed of Agreement, which limits the rent as per the SEPP - ARH control. However, I also consider that the Deed should provide for a reasonable time period. It seems to me that the suggested 5 year time period is relatively short when compared to cl 17 SEPP - ARH, which requires a minimum period of ten years use as affordable housing for "infill development" and also cl 38 also requiring a ten year period for residential flat buildings used for social housing. My concern is that if the use reverts to the more expensive market rent type accommodation after the five year period, then some existing very low income, low and moderate renters may have to be displaced and some form of s 94 levy could be reasonable to help fund the facilities identified in the s 94 CP.

  1. However, the evidence from the council experts is that this scenario should not be allowed because the two car deficiency in on site car spaces is unacceptable in planning terms and not in accordance with SEPP - ARH. Furthermore, this deficiency in car spaces is not in accordance with council's recent adopted DCP (2013), which also requires four - five on site car spaces.

  1. It seems to me that the DCP should be given appropriate weight because it is a relatively recent (updated) policy document that comprehensively addresses the link between private and public parking together with access to public transport. Its primary objective is:

to balance the need to meet car parking demand on site to avoid excessive spillover onto streets, with the need to constrain parking to maintain Marrickville LGA's compact urban form and promote sustainable transport.

  1. The application of the DCP allows for a lower rate of parking if justified in accordance with the designated criterion. Insofar as the applicant arranged for some parking surveys, I note that they show that for comparative development two on site car spaces is consistent with the two properties surveyed. Also, that any spillover from the subject development would have minimal implications for on street parking according to the traffic consultants agreement.

  1. However, whilst Mr Bertacco agrees with the aforementioned results of the survey, he considers the surveys too restricted and in the circumstances prefers that the five car spaces be provided in accordance with the DCP, or at least four on site car spaces as required under the SEPP ARH, if the proposal is too be approved. Likewise Ms Atwal also does not support the proposal because she says that the shortfall in off street parking would increase the need and demand for infrastructure i.e. public transport utilised by the occupants of the development.

  1. Insofar as both Mr Trethewey and Mr Chapman support the proposal based on the justification criterion in cl 2.10.4 of the DCP, it seems to me that the parking survey has limited applicability because it is of a very small sample (two other boarding houses) and the questions most probably don't reflect the level of private vehicle usage. The questions were apparently framed by the applicant's architect/staff and not involving the traffic consultant and asked about the boarder's vehicle ownership rather than usage. I accept the submissions from Council that the usage/reliance on private vehicles may be significantly different to the survey results.

  1. Another limitation on the parking survey is that whilst it indicates there will be adequate on street car parking capacity throughout the day, I do not consider this adequately responds to the contention requiring an adequate assessment of peak parking and traffic demand. It may well be that on street parking demand has its peak period after working hours and on the weekends. This outcome should be fully assessed to properly establish any "overspill" impacts, especially as the adjacent lots are quite narrow. Accordingly, I accept Mr Strati's submission that the survey is unrepresentative and should not be relied upon.

  1. With regard to the access to public transport, I accept that this is only one of the justification points for reduced on site car spaces. Accordingly, whilst I accept the experts' opinion that the site has relatively good access to public transport and complies with the traffic consultants' reference to standard transport guidelines for walking distance to train stations and bus stops, nevertheless this is not consistent with the DCP provisions.

  1. As the DCP is a relatively recent document, which contains a comprehensive set of parking controls for this LGA, I think that it should be given considerable weight. Applying the DCP provisions, I note that the subject site is within "Parking Area 2", which is regarded as a 'moderately accessible area', where on site parking in the order of five spaces would be required. I understand from the evidence that the first objective for parking is to "balance the need for car parking demand on site to avoid excessive spillover onto streets" and in the circumstances consider the proposal is considerably deficient.

  1. This concern was expressed by a number of the neighbours who said there was always competition for on street parking spaces particularly when workers from the adjacent bus depot regularly park in the street. They thought that sufficient on site spaces should be provided. In the subject circumstances, I think that this aspect of the public interest should also be given some weight.

  1. Therefore in undertaking the balancing exercise required by the DCP, I do not consider there was any compelling evidence presented to set aside the on site parking requirements, notwithstanding that the site has good access to public transport. If the residents of the boarding house still prefer to rely to some extent on private vehicles then there is likely to be a spill over effect in the adjacent to the adjoining narrow fronted lots.

  1. In this regard, I note that that whilst the traffic experts agreed the site was constrained, nevertheless they also agreed that it is still possible to satisfactorily provide four car spaces in a basement even though it would not be strictly compliant with the provisions of AS 2890.1. I think that the 320mm shortage in the length of any basement car park is relatively minor and detailed consideration of this aspect should be given before the DCP provisions are set aside.

  1. In summary then, I think that determining weight should be given to the provisions of the DCP that four on site car spaces be provided, on the basis previously stated. I am reassured in this conclusion because this the amount of car parking indicated as sufficient to satisfy the SEPP ARH deemed to comply provision. Based on the traffic expert's assessment it seems possible this could be reasonably achieved and I therefore rely on Mr Bertacco's opinion that the parking arrangements are inadequate.

  1. Whilst this parking requirement may have implications for the "affordable rental housing" (boarding house) design, I do not consider that the documentation before the Court adequately secures the proposal for this purpose because it is only for a notional period for five years. In these circumstances I am satisfied to rely on Ms Atwal's opinion that the proposal does not provide adequate parking and that it is not acceptable in terms of compliance with the planning controls. As I consider the proposal should be refused, the question of any s 94 contribution does not need to be determined.

Court orders

  1. The Court orders that:

(1)   The appeal is dismissed.

(2)   Development consent to DA201300309 for the demolition of the existing dwelling and construction of a nineteen-room boarding house at 18 Gannon Street, Tempe is refused.

(3)   The exhibits may be returned except for 2, A, B and C.

R Hussey

Commissioner of the Court

Decision last updated: 13 May 2014

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