Emag Apartments Pty Ltd v Inner West Council

[2025] NSWLEC 1414

Land and Environment Court

New South Wales

Medium Neutral Citation:

Emag Apartments Pty Ltd v Inner West Council [2025] NSWLEC 1414

Hearing dates:

15, 16 April 2025

Date of orders:

12 June 2025

Decision date:

12 June 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

(1)   Consent is granted to Modification Application MOD2024/0330 and accordingly DA2020/0578 for demotion and construction of a mixed use development comprising a boarding house and ground floor commercial at 2-18 Station Street, Marrickville granted by the Land and Environment Court on 1 February 2022 (Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042) is modified in the terms set out in Annexure A,

(2)   Development consent DA2020/0578, as modified is set out in Annexure B.

(3)   The Exhibits are returned with the exception of Exhibit 1, 7, A, H and K

Catchwords:

MODIFICATION APPLICATION - s 4.55(8) application to the Court to modify a development consent granted by the Court – deletion of toe levels of basement parking – change to floor plans to reduce the number of managers rooms – changes to architectural presentation of the proposed building – amendment to design of proposed communal spaces – impacts of the proposed development.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.8

Land and Environment Court Act 1979, s 34

Marrickville Development Control Plan 2011, s 2.10.4

Marrickville Local Environmental Plan 2011, cll 4.4, 4.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29

State Environmental Planning Policy (Housing) 2021, sch 7A, cll 29, 69

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38

Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 Emag v Inner West’

Ku ring gai Council v Buyozo Pty Ltd [2021] NSWCA 177

Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

North Sydney Council v Michael Standley and Associates Pty Ltd (1998) NSWLR 468

SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65

Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186

Texts Cited:

UNSW City Futures Research Centre, Occupant Survey of Recent Boarding House Developments in Central and Southern Sydney, 2019

Transport for NSW, Trip Generation and Parking Demand of Boarding Houses Analysis Report, September 2022

Phillip Boyle and Associates, The Impact of Car-share services in Australia, 2016

SGS Economics and Planning, Benefit- cost Analysis of car share within the City of Sydney,

Category:

Principal judgment

Parties:

Emag Apartments Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Pickles (Applicant)
S Turner, solicitor (Respondent)

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/310881

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA2020/0578 (the consent) granted by the Land and Environment Court on 1 February 2022 (Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 (‘Emag v Inner West’). Emag v Inner West granted approval for demolition and construction of a mixed-use development comprising a boarding house and ground floor commercial at 2-18 Station Street, Marrickville.

2. Modification Application MOD2024/0330 (the modification application), the subject of the proceedings, proposes to make the following amendments to the consent:

1. Deletion of basement Levels 02 and 03 and associated parking spaces.

2. Modification of Basement Level 1 to accommodate 8 residential and 2 commercial parking spaces, a loading space, 2 car share spaces 3 motorbike and 34 bike parking spaces.

3. Increase in size of tenancy 1 and 2 on the ground floor, inclusion of accessible bathrooms and amendments to the foyer.

4. Deletion of the second managers room, replaced by a boarding room.

5. Addition of 2 further boarding rooms on level 2 through the partial removal of a void space.

6. Amendment to the building facades materials and design.

7. Provision of a roof top services enclosure and an increase in height of the lift overrun.

3. The appeal was subject to mandatory conciliation on 14 November 2024 (s 34 of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached, and conciliation was terminated. As no agreement was reached the matter was listed for hearing.

4. The Modification Application was amended by Notice of Motion at the commencement of the hearing with the consent of the Respondent to update the first floor and roof top architectural plans. The plans were consolidated into the architectural set marked Exhibit A.

Issues

5. The Respondent argues that the Modification Application should be refused on the following grounds:

1. That the Modification Application is not substantially the same as the development approved in the Consent, failing the statutory precondition at s 4.55(2) of the EPA Act.

2. That the Modification Application should be refused on merit on the following basis:

1. The deletion of two basement parking levels will mean that the development will no longer comply with the requirements of Marrickville Development Control Plan 2011 (DCP 2011), will result in insufficient parking to adequately service the development and will cause unreasonable impacts on street parking.

2. The amendments to the communal rooms will result in poor residential amenity for future residents.

3. The increase in gross floor area through the enclosure of corridors and changes to void spaces in inconsistent with the reasons for the grant of consent in Emag v Inner West.

4. The reduction of the number of manager boarding rooms from 2 to 1 will impact on the ability of any impacts arising from the development to be appropriately managed.

Outcome

6. Having considered the evidence and submissions in the proceedings I have concluded that the Modification Application should be determined by way of approval subject to conditions. I am not persuaded that the contentions of the Respondent’s are made out on the evidence. My reasons are detailed in the body of the judgment but are summarised below.

7. Firstly, I am satisfied that the Modification Application meets the test at s 4.55(2)(a) of the EPA Act, namely that the Court must form a positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development: Arrange v Inner West Council [2019] NSWLEC 85 at [31].

8. Secondly, the matters raised by the Respondent to support the refusal of the Modification Application on merit are not matters that warrant the refusal of the application for the following reasons:

1. Despite the deletion of 2 basement levels of parking in the parking provision is acceptable. I accept and prefer the evidence of Mr Corbett that the variation to the car parking controls in State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and DCP 2011 is warranted given the sites location adjacent to Marrickville Metro Station, the evidence tendered examining car use of boarding house uses and the provision of car share spaces on the ground floor.

2. The requirement in SEPP ARH for the provision of a communal room in the proposed boarding house is met by the Modification Application despite the amendments sought. I am not persuaded that the change in amenity proposed in the Modification Application, when considered on balance, is a detrimental change that warrants the refusal of the Modification Application.

3. Thirdly, I am not persuaded by the Respondent’s submission that the Modification Application is inconsistent with the reasons for the grant of consent in Emag v Inner West. I find that the enclosure of the breezeways, and the resultant increase in gross floor area (GFA) does not warrant refusal of the Modification Application. I note that the agreed position of the planning experts that the enclosure of the breezeways is an acceptable outcome. Finally, the exceedance of the floor space ratio (FSR) standard does not warrant the refusal of the Modification Application on merit. The precondition at cl 4.6(3) of Marrickville Local Environmental Plan 2011 (LEP 2011) does not apply to the Modification Application: SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [34]. When considered on merit, I accept and prefer the evidence of Mr Waghorn that the increased FSR does not create additional bulk to the proposed built form of the development, does not reduce the amenity of the building for future residential and provides additional boarding rooms in an accessible location.

4. Fourthly, I acknowledge the concerns expressed by members of the public that the Modification Application proposes to amend the development to have a single managers boarding room. Clause 30 of SEPP ARH details the standards for boarding house development. At sub cl (1)(e) of cl 30 SEPP ARH mandates that a development which has capacity to accommodate 20 or more lodgers is required to provide a managers room. The Modification Application meets this requirement. The current planning provisions in State Environmental Planning Policy (Housing) 2021 (SEPP Housing), while it does not directly apply is a relevant matter: s 4.15(1)(a)(ii) EPA Act. I have given weight to the fact that SEPP Housing no longer requires the provision of on site management: s 69(1)(d) of SEPP Housing. With the inclusion of CCTV monitoring at the ground level reception I am not persuaded by the evidence of Mr Swan that the second managers room is required to ensure surveillance of the communal and other spaces within the proposed development. However, having considered the evidence I am persuaded that it is appropriate to impose a condition on the Modification Application requiring the onsite manager to be in the boarding house during the hours that the outdoor spaces and communal rooms area are available for use by boarders to ensure any noise or other disturbance arising from the boarding house use is able to be promptly mitigated. The power to impose conditions is an implied power: North Sydney Council v Michael Standley and Associates Pty Ltd (1998) NSWLR 468 at [475]-[476]; Ku ring gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [42].

9. Accordingly, I find that the appeal should be upheld and consent granted to the Modification Application.

Site and its context

10. The site is located to the immediate south of Marrickville Railway station, currently being upgraded as a Metro station. The site is bounded by Station Street which forms a one-way loop road providing to the south entrance of the station from Schwebel Street.

11. The site has three frontages to Station Street and an area of 694.3m².

12. The site is located within the within the E1 Local Centre zone pursuant to LEP 2011. In objectives of the zone are:

- To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

- To encourage employment opportunities in accessible areas.

- To maximise public transport patronage and encourage walking and cycling.

- To provide housing attached to permissible non-residential uses which is of a type and scale commensurate with the accessibility and function of the centre or area.

- To provide for spaces, at street level, which are of a size and configuration suitable for land uses which generate active street fronts.

- To constrain parking and reduce car use.

Public submissions

13. The amended Modification Application was notified by the Respondent from 21 March to 7 April 2025. A total of 12 submissions were received. Further, at the commencement of the hearing a number of members of the public addressed the Court, expressing concerns about the Modification Application. Those concerns can be summarised as:

1. The Modification Application is fundamentally changing the nature and scale of the development.

2. Original approval for the redevelopment of the site already represented significant concessions which should be sufficient.

3. The floor space increase is beyond the capacity of the site.

4. The deletion of two levels of basement parking will result in increased demand for parking in local streets where there is no capacity.

5. The reduction of onsite management from two managers to a single manager will result in unmanaged noise and other impacts from the development on the neighbourhood.

Expert evidence

14. The Court was assisted by written joint reports and oral evidence from the following experts:

• Urban Design and Town planning: Alan Cadogan and David Waghorn (for the Applicant) and Jeremy Swan (for the Respondent)

• Traffic and parking: Paul Corbett (for the Applicant) and Joe Betacco (for the Respondent)

15. Each of the preceding pairs of experts prepared joint reports which were admitted into evidence.

Planning Instruments

16. The parties agree, and I accept, that the relevant planning instrument is the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Clause 2 – General Savings Provisions in schedule 7A of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) states:

‘(1) This policy does not apply to the following matters:

…

(da) an application to modify a development consent granted after the commencement date, if it relates to a development application made, but not determined, on or before the commencement date,

…’

17. This savings provision applies to the Modification Application as the development application the subject of the consent was made on 30 August 2020, prior to the commencement of SEPP Housing on 26 November 2021.

Whether the development is substantially the same.

18. As noted above, s 4.55(2)(a) of the EPA Act imposes an express statutory limitation on the consent authority’s power to modify the original consent in that it can only be modified if the consent authority is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. The provision states:

4.55 Modification of consents—generally(cf previous s 96)

…

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

19. Accordingly, s 4.55(2) of the EPA Act imposes 4 separate jurisdictional prerequisites which must be satisfied before the power to modify a development consent can be exercised. These are:

1. The Court must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (s 4.55(2)(a)). This prerequisite is discussed below commencing at [23].

2. The Consent authority must consult with the relevant Minister, public authority or approval body (within the meaning of s 4.8 of the EPA Act) in respect of any condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body (s 4.55(2)(b)). This prerequisite is not relevant in this appeal as no such condition was imposed on the original consent.

3. The modification application must be publicly notified in accordance with the regulations, if the regulations so require, or a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent. This prerequisite has been satisfied as noted at [6].

4. Lastly, the consent authority must consider any submissions made concerning the proposed modification following its public notification. In determining the modification application, I have considered each of the submissions received by the Council following the public notifications of the modification application in determining the application.

20. The determination required under s 4.55(2) of the EPA Act is a determination of fact that is assisted by a comparative assessment, qualitative as well as quantitative of the development as originally approved, and the proposal to modify the development(Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [55], [56] and [58]). The test is that stated in the statutory provision: that the modified development “is substantially the same development” as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 at [18]-[19]). The onus is on the Applicant to demonstrate that the modified development is substantially the same development as the consent (Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [47]).

21. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act, for the following reasons:

1. The proposal maintains the fundamental built form of the original development for which consent was granted. The changes to that form proposed by the Modification Application are discrete and not transformative.

2. The deletion of two levels of basement car parking is a change which must be considered along with the modifications to the development listed at [2]. The development remains a mixed-use development comprising a boarding house use over 7 floors with ground floor commercial. I am satisfied that when the modifications are considered wholistically, the deletion of basement parking is not a change which results in the development as modified not being substantially the same development as that which was approved.

3. The modification application maintains the approved commercial and boarding house uses. The nature and intensity of the uses remain the same.

4. The relationship between the proposed development the public domain and the adjoining properties remains the same.

5. In my view, comparing the development that would result from the approval of the Modification Application to the original consent, supports a conclusion that the development is quantitatively or qualitatively substantially the same development.

22. As required by s 4.55(2) of the EPA Act I have formed the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted.

The merit of the Modification Application

23. The Respondent argues that the Modification Application should be refused on merit for three key reasons:

1. Adequacy of parking: the Modification Application, and the deletion of two levels of basement parking, will mean that insufficient parking will be provided for the development resulting in unreasonable impacts on street parking. Further, the variations proposed to the parking provisions of SEPP ARH and DCP 2011 are not warranted.

2. Amenity of communal room: that the amenity of the indoor communal room on Level 1 is reduced as a result of the proposed modifications.

3. Increased FSR: the proposed FSR is excessive and there are insufficient planning grounds to justify the exceedance.

4. Reduction of onsite managers rooms: the Modification Application proposes the deletion of the second managers room on the upper floor which will result in insufficient on-site management of the boarding house. The managers room is proposed to be replaced by a boarding room.

Adequacy of parking

24. The traffic and parking experts prepared two joint reports addressing the Respondents contentions. These reports were tendered in the proceedings as Exhibits 3 and 4. The experts were also called for cross examination and oral evidence.

25. The key differences between the experts in relation to the adequacy of the parking provision to meet the demand of the proposed were:

1. The weight to be given to the two studies which have analysed the parking demand of boarding houses in determining likely parking demand on this site. Those reports being:

1. The UNSW City Futures Research Centre publication titled “Occupant Survey of Recent Boarding House Developments in Central and Southern Sydney” published in 2019 (the City Futures Report); and

2. The Transport for NSW publication titled “Trip Generation and Parking Demand of Boarding Houses Analysis Report” published in September 2022 (the TfNSW Report).

2. The effect of the provision of a shared vehicle space (GoGet) in reducing private parking demand; and

3. Whether the parking provision proposed by the modified development is sufficient to meet the demand the development will generate.

26. On the basis of the expert evidence the Modification Application, if approved, would result in the provision of 13 parking spaces on site as follows:

• 9 resident spaces,

• 2 commercial spaces,

• 2 car share parking spaces (GoGet),

The controls

27. The experts agree that the relevant provisions under SEPP ARH at cl 29(2)(e)(ia) and (iii) state that the consent authority must not refuse consent on the grounds of parking provision if the following standards are met:

“(ia) in the case of development not carried out by or on behalf of a social housing provider – at least 0.5 spaces are provided per 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 who is resident on site”.

28. The consent authority can grant consent to a development if the parking provision is less than that stipulated under cl 29(2)(e)(iia) and (iii) of SEPP ARH as they operate as a ‘do not refuse’ standard.

29. Applying these rates in SEPP ARH to the modified development the experts agree that the consent authority would be unable refuse the application on the grounds of parking if a total of 42 spaces are provided.

30. Under SEPP Housing the relevant parking standard at cl 29 mandates the provision of 0.2 parking spaces per boarding room in an accessible area. The subject site meets the definition of an accessible location: cl 29(i)(i) of SEPP Housing. This control would require the provision of 16.8 or 17 spaces on the site.

31. DCP 2011 provides a tiered approach to parking rates with lower rates applied to areas where car parking is most constrained. The subject site falls within an area nominated as “Parking Area 1” where parking is most constrained. However, a tiered approach is not applied to the parking rates for boarding houses which instead mirror the provisions of SEPP ARH across the three categories, staying at 0.5 spaces per boarding room.

32. At s 2.10.4 of DCP 2011 provides the following considerations were parking rates are proposed to be varied:

Justification for providing car parking at a rate lower 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 the DCP.

Expert evidence:

33. The experts agree that for the purposes of (3) in s 2.10.4 of DCP 2011 above the site has excellent access to public transport services being located immediately adjacent to Marrickville Railway/Metro station and within 100m of bus services.

34. Further, the experts agree that the two proposed car share spaces would be an additional to the existing network of seven other car share vehicles within 400m of the site, and a further eight vehicles within 800m of the site.

35. Mr Corbett argues that the parking provision proposed in the Modification Application will meet the parking demand of the development. His reasoning relies on two conclusions:

1. That boarding house users have documented lower car use and ownership; and

2. The provision of space for two car share vehicles conservatively replaces the parking demand for ten private vehicles.

36. In relation to the first conclusion Mr Corbett relies on the findings of the TfNSW Report which analysed actual demand of boarding house users. That report detailed that for a boarding house in Camperdown had an actual peak parking demand of 0.12 spaces per boarding room. Further, Mr Corbett notes that the UNSW Report found that two thirds of boarding house residents do not own a car. He submits that this form of benchmarking analysis is relevant to traffic impact assessments and to inform likely demand. In addition to the boarding house located in Camperdown surveyed in the TfNSW, Mr Corbett identified and surveyed the actual parking demand at a comparable boarding house at Ashfield. That development contained 24 boarding rooms with nine onsite parking spaces (no carshare spaces). Mr Corbett’s survey data indicated the actual parking demand was five spaces. He concludes that applying the rates of actual usage from these bench making sites (Camperdown and Ashfield) gives a likely parking demand for the subject site of 14 parking spaces at a rate of 1 space/ 4.8 rooms.

37. In relation to the second conclusion Mr Corbett relies, in part, a report prepared in 2016 by Phillip Boyle and Associates titled “The impact of car-share services in Australia” (the Boyle Report) which concludes that each car share vehicle replaces some 10-13 private vehicles. He argues this conclusion is supported by the publication “Benefit- cost Analysis of car share within the City of Sydney” prepared by SGS Economics and Planning which concluded that each car share space can replace up to 13 cars. Further, he argues that the Court has accepted that car share vehicles replace some 10-12 private cars, citing: Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186.

38. On the above reasoning Mr Corbett concludes that the two car share spaces proposed are equivalent to some 20 private parking spaces. When this is calculated with the nine parking spaces allocated to the boarding house the effective parking provision is some 29 spaces, which is in excess of the likely actual demand of 14 spaces.

39. Mr Corbett concludes that the parking provision as proposed under the Modification Application will be sufficient based on the excellent accessibility of the site, the benchmarked actual demand of similar boarding house developments in accessible locations and the provision of car share spaces.

40. In the alternative Mr Betacco argues that the parking provision proposed under the Modification Application is insufficient and will result in unmet parking demand being displaced into local streets surrounding the site. In contrast to Mr Corbett, he argues:

1. Very little weight should be given to the parking rates in SEPP Housing as they are not the applicable controls.

2. That whilst it is accepted that boarding houses attract a demographic of people who have lower car ownership rates, it is incorrect for Mr Corbett to rely on only one boarding house in the TfNSW Report. Instead, Mr Betacco argues that it appropriate to look at all of the surveyed sites collectively and apply the average of the documented actual demand. Applying this approach Mr Betacco argues that the report finds that in the Sydney metropolitan areas, 43 per cent of boarding house residents own a car.

3. When the TfNSW Report is read as a whole the majority of boarding house residents across all sites parked their private vehicles off site in neighbouring streets. When this offside parking demand is ‘added in’ the parking demand is closer to 0.37 spaces per room (or 31 spaces required for the modified development).

4. That again in looking at the UNSW Report, the totality of sites that are surveyed should be used to determine an estimate of actual parking demand. Doing so the rate of car ownership for boarding house residents in some 33%.

41. On the question of the quantum replacement of private parking demand displaced by car share vehicles, Mr Betacco disagrees with Mr Corbett that 10 is the appropriate rate. He argues that:

1. The Boyle Report and the SGS Report are inadequate in that they do not conclusively determine if membership or use of GoGet actually results in a choice not to purchase a private vehicle.

2. The reports utilise self reported surveys of car share users which is an unreliable source.

3. Despite the introduction of car share, and the development of public carshare infrastructure, the Census data for 2021 does not show a reduction in private car ownership.

42. Mr Betacco concludes that for the proposed 84 room boarding house the appropriate balance between constraining demand (consistent with the intent of DCP 2011) and meeting demand onsite to reduce offsite impacts would be to provide 27 spaces in the development. He concludes the proposed provision of 9 spaces does not strike this balance and is unacceptable.

Findings on parking

43. Despite the deletion of 2 basement levels of parking in the Modification Application, I find that the parking provision is acceptable.

44. I accept and prefer the evidence of Mr Corbett that the variation to the car parking controls in SEPP ARH and DCP 2011 is warranted. My reasoning is that based on three elements. Firstly, the site’s location immediately adjacent to Marrickville Railway/ Metro Station. Plainly the location of the site will promote public transport use, and the provision of onsite parking is contrary to the optimal utilisation of this opportunity. Secondly the TfNSW Report and the UNSW report both demonstrate lower rates of car use by boarding house users, reinforcing that the use proposed on the site will as a form of residential development generate lower parking demand. And thirdly, a quantum of private parking demand will be further displaced by the provision of car share spaces on the ground floor.

45. I accept and prefer the evidence of Mr Corbett that the parking provision as proposed under the Modification Application will be sufficient on the following basis:

1. The site is proximate to frequent and high-quality public transport. This proximity and its relationship to a reduction of parking demand and provision is codified at s 2.10 in DCP 2011. The Modification is consistent with the provisions of DCP 2011 by seeking a variation to the parking provisions on the basis of, at least, the following criteria listed at s 2.10.4 of DCP 2011:

…

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;

…

6. Development targeted to demographic sector with low car use/ownership;

…

9. Parking for the development is consistent with the aims and objectives of this section of the DCP.

2. It is not appropriate to average the actual car parking demand results from surveying disparate boarding house developments across metropolitan Sydney. In my view this is an error in Mr Betacco’s approach as it neutralises the location specific particularities of access, location and public transport provision. I accept and prefer the approach of Mr Corbett of seeking to compare boarding house developments with characteristics similar to the subject site. Taking this approach the TfNSW Report and the UNSW report demonstrate lower rates of car use by boarding house users on sites of similar characteristics and the subject site.

3. I am satisfied that the devoted car share spaces will go some way to mitigating the onsite parking shortfall. In addition, I have given some weight to the new provisions of SEPP Housing which require materially less onsite parking.

46. On the preceding basis I find that the Respondents contention that the Modification Application should be refused as it will result in insufficient parking to adequately service the development and will cause unreasonable impacts on street parking is not made out on the evidence.

Communal rooms

47. The Modification Application proposed to reduce the portion of the communal room proposed in the development that is has a ‘double height’ ceiling.

48. Mr Swan, the planning expert for the Respondent argues that this amendment proposed in the Modification Application results in a poor outcome and reduced amenity for the boarding residents. He supports this conclusion on the following grounds:

• The changes result in unnecessary additional floor area, increasing the proposals floor space ratio (FSR).

• The increase in FSR results in a negative environmental impact with lower floor to ceiling heights to the street and the cinema room resulting in a reduction of natural light.

• The lack of natural light to much of the communal room reduces the flexibility of the space.

• The Modification Application proposes two additional boarding rooms at the expense of the amenity of the communal room.

49. In the alternative Mr Waghorn, planning expert for the Applicant, is supportive of the changes to the communal room proposed by the Modification Application. He argues that approval of the Modification Application will result in an improved design outcome. His reasoning is:

• The separation of the communal room into two zones, the first the kitchen dining area and the second the cinema space, allows for greater choice for future residents.

• The approved development also includes a rooftop communal space which has exceptional amenity with both indoor and outdoor spaces.

• The proposed communal kitchen space in the communal room on level 1 will provide an alternative socializing space indoor with good access to daylight.

• The cinema space is a purpose designed, light controlled and acoustically separate space for residents to watch TV and other media based entertainment.

• Separating out the cinema space will reduce the potential for conflicts about the use of the communal space (noise, glare from windows etc).

• The lower ceiling proposed in still a minimum of 2.7m, which is an appropriate ceiling height.

Increased FSR

50. The planning experts agree that the Modification Application, by the internalisation of the breezeways and other changes, will increase the gross floor area (GFA) of the development by 494sqm. This will result in the development having an FSR of 4.78:1.

51. The experts agree that the changes proposed to the breezeways are acceptable.

52. Mr Swan’s evidence in relation to the acceptability of the increased GFA and concordant FSR centres on the ‘trade-off’, as he sees it, between the provision of two additional boarding rooms on level 1 and the redesign of the communal room.

53. In the alternative Mr Waghorn argues that the additional GFA does not result in an additional building bulk or a reduction in the setback of the building from any property boundary. He argues that the changes do not create any new or exacerbation of impacts arising from the development. In his assessment the increased FSR in consistent with the objectives of the FSR control at cl 4.4 of LEP 2011.

54. In submissions Mr Pickles for the Applicant submits that in assessing the merits of the Modification Application the Court should give weight to the positive environmental impact providing additional affordable housing in a location will excellent public transport access.

Managers Room

55. The Respondent argues that the Modification Application, to the extent it proposes to delete the second Managers Room, should be refused. The controls in DCP 2011 would require the provision of three managers rooms for the proposed maximum of 150 residents: Condition 81 in Annexure A.

56. Mr Swan argues that the second managers room is required to appropriately address the impacts of the proposed development on the amenity of the adjacent residents. His reasoning is:

1. Given the expected population of the development, it is good planning to have a Managers Room located on the upper floor, proximate to the roof top communal space, and a second Managers Room located on level 1 near that communal space.

2. The Modification Application, through the deletion of the upper level Managers Room, leaves the roof top in effect unsupervised.

3. That one Manager would have difficulty addressing noisy or rowdy residents over both spaces and it is therefore likely that neighbours will be impacted by noise from the boarding house.

57. In the alternative Mr Waghorn argues that the combination of an onsite manager, the Plan of Management, House Rules and the CCTV act together to provide appropriate and sufficient oversight.

58. Further, Mr Waghorn argues that the Court should give weight to the fact that SEPP Housing no longer requires a boarding house of this size to have an onsite manager, instead only requiring provision for a desk space: s 69(1)(d) of SEPP Housing.

Findings on remaining issues

59. The requirement in SEPP ARH for the provision of a communal room in the proposed boarding house is met by the Modification Application despite the amendments sought. I am not persuaded that the change in amenity proposed in the Modification Application, when considered on balance, is a detrimental change that warrants the refusal of the Modification Application. I accept and prefer the evidence of Mr Waghorn that the development, when considered as a whole, provides a range of acceptable communal spaces for the future residents.

60. I am not persuaded by the Respondent’s submission that the Modification Application is inconsistent with the reasons for the grant of consent in Emag v Inner West. Further, I find that the enclosure of the breezeways, and the resultant increase in gross floor area (GFA) does not warrant refusal of the Modification Application. I note that the agreed position of the planning experts that the enclosure of the breezeways is an acceptable outcome.

61. I find that the exceedance of the floor space ratio (FSR) standard does not warrant the refusal of the Modification Application on merit. Firstly, the precondition at cl 4.6(3) of LEP 2011 does not apply to the Modification Application: SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [34]. Secondly, when considered on merit, I accept and prefer the evidence of Mr Waghorn that the increased FSR does not create additional bulk to the proposed built form of the development and does not reduce the amenity of the building for future residents. I accept and give weight to the submission of Mr Pickles that a positive impact of the Modification Application is the provision of additional boarding rooms in an accessible location.

59. However, I acknowledge the concerns expressed by members of the public that the Modification Application proposes to amend the development to have a single managers boarding room. Clause 30 of SEPP ARH details the standards for boarding house development. At sub cl (1)(e) of cl 30 SEPP ARH mandates that a development which has capacity to accommodate 20 or more lodgers is required to provide a managers room. The Modification Application meets this requirement.

60. The current planning provisions in SEPP Housing 2021, while it does not directly apply is a relevant matter: s 4.15(1)(a)(ii) EPA Act. In determining the Modification Application I have given weight to the fact that SEPP Housing no longer requires the provision of on site management: s 69(1)(d) of SEPP Housing. With the inclusion of CCTV monitoring at the ground level reception I am not persuaded by the evidence of Mr Swan that the second managers room is required to ensure surveillance of the communal and other spaces within the proposed development.

61. However, I am persuaded that it is appropriate to impose a condition on the Modification Application requiring the onsite manager to be in the boarding house during the hours that the outdoor spaces and communal rooms area are available for use by boarders to ensure any noise or other disturbance arising from the boarding house use are able to be promptly mitigated. The power to impose conditions is an implied power: North Sydney Council v Michael Standley and Associates Pty Ltd (1998) NSWLR 468 a [475]-[476]; Ku ring gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [42]. That condition is:

’86. The manager of the boarding house is to be onsite and at work during the hours that the outdoor spaces and communal rooms area are available for use by boarders. They are to ensure any noise or other disturbance arising from the boarding house is promptly mitigated.

65. Accordingly, I find that the appeal should be upheld, and consent granted to the Modification Application.

Orders:

66. The Court orders that:

1. Consent is granted to Modification Application MOD2024/0330 and accordingly DA2020/0578 for demotion and construction of a mixed use development comprising a boarding house and ground floor commercial at 2-18 Station Street, Marrickville granted by the Land and Environment Court on 1 February 2022 (Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042) is modified in the terms set out in Annexure A.

2. Development consent DA2020/0578, as modified is set out in Annexure B.

3. The Exhibits are returned with the exception of Exhibit 1, 7, A, H and K.

D Dickson

Commissioner of the Court

Annexure A (294 KB, pdf)

Annexure B (450 KB, pdf)

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Decision last updated: 12 June 2025