Eminent Constructions v Hurstville City Council

[2011] NSWLEC 1358

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eminent Constructions v Hurstville City Council [2011] NSWLEC 1358

Hearing dates:

14 December 2011

Decision date:

14 December 2011

Jurisdiction:

Class 1

Before:

Smithson AC

Decision:

1.The appeal is upheld.

2.The application under the Environmental Planning and Assessment Act for a mixed use development incorporating a boarding house is approved.

3.The development conditions in Exhibit 4 apply. These include the modifications agreed to by the parties including the modifications to plans DA-02 and DA06 marked as revisions E and F respectively.

4.The exhibits are returned to the parties with the exception of Exhibits 2, 3, 4 and A.

Catchwords:

DEVELOPMENT APPLICATION - boarding house, affordable housing, solar access, communal living areas

Legislation Cited:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Hurstville Development Control Plan No. 1
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Buildings

Category:

Principal judgment

Parties:

Eminent Constructions Pty Ltd (Applicant)

Hurstville Council (Respondent)

Representation:

Counsel
Dr Berveling (Applicant)
Solicitors
Mr P Rigg, Norton Rose (Respondent)

File Number(s):

10551 of 2011

JUDGMENT

1. Eminent Constructions sought approval for a mixed use development comprising shops and a boarding house at 43A Penshurst Street, Penshurst. The proposal was refused by Hurstville Council under section 79 (C) (1) of the Environmental Planning and Assessment Ac t 1979 on the basis of:

(a)   insufficient information to determine the social impact,

(b)   the development being out of character with the area,

(c)   the space being insufficient to house 100 people, and

(d)   the development not being in the community interest.

The Issues

1. The parties agreed that the following issues lead to the Council's refusal:

(i)   The potential amount of solar access available to the boarding house rooms and communal areas;

(ii)   The possible overshadowing of the adjacent approved development to the south east;

(iii)   The amenity of the external communal open space (in terms of size and solar access);

(iv)   The amenity of the internal communal areas (in terms of size and interference as a path of travel);

(v)   Lift access, in that there was only one lift, its size and configuration and its disabled access compliance; and

(vi)   Public Interest concerns primarily resulting from community objections.

1. It was agreed by both parties, that the over-riding controls for determination of the boarding house component are those contained in State Environmental Planning Policy (Affordable Rental Housing) 2009 , and particularly clauses 29 and 30 of the SEPP .

Details of the Proposal

1. The proposal is to undertake alterations and additions to a former part 2 part 3 storey squash court and recreation complex to create a part 3 part 4 storey development containing 3 existing shops at street level and a 48 room boarding house (including a Manager's room) over the upper three levels.

1. Due to the slope of the site, the ground floor fronting Penshurst Street comprises the 3 shops with associated amenities, storage and garbage facilities and a partial basement containing a car park accessed via a crossover to Penshurst Street. The car park contains 18 car bays for the shops and 10 motor cycles and 10 bicycle bays for the use of boarding house residents. The basement level is accessed from the crossover as well as via a lift and internal stairs serving the upper levels.

1. The ground floor also has a door from Penshurst Street to a foyer for pedestrian access to the boarding house above.

1. All of the boarding house rooms are self contained and have galley kitchens and internal bathrooms. There are 16 rooms on Level 1, of which 10 have small private balconies. There are 18 rooms on Level 2 and 14 rooms on Level 3, all of which have small balconies facing either an internal courtyard on Level 1 below or Penshurst Street.

1. Proposed boarding house facilities include a communal living room and a communal courtyard on Level 1, a small storeroom on Level 2, and a shared laundry and clothes drying area and a second communal living room on Level 3.

1. The application was lodged in December 2010 and was notified with 5 objections being lodged, raising the following issues:

• The number of rooms proposed
• Traffic
• Inadequate parking and loading area
• Pedestrian Safety
• Overdevelopment/excessive bulk and scale
• Contrary to the character of the area
• Engineering and Building Code of Australia (BCA) design issues.

Site Description, Zoning and Location Context

1. The appeal site is legally described as Lot 1 DP 956554 with a total area of 1,045 sqm. It is situated within the Penshurst commercial centre adjoining Penshurst Street and is zoned Business Central Zone 3 (c) under the Hurstville Local Environmental Plan 1994 . The development is prohibited under the LEP but is permitted under the SEPP which over-rides the LEP in this regard.

1. Adjoining development to the north, south and east comprises shops of 1-2 storeys some with residential uses above. The Penshurst Girls High School is located some 30 metres to the north west on the same side of Penshurst Street.

1. To the rear (west) the zoning under the LEP changes to Residential with development typified by 3 storey residential flat buildings.

Solar access and amenity of boarding house rooms and communal areas

1. In determining the application, the Council had concerns that there was insufficient detail in the solar access diagrams provided to determine the degree of sunlight entering the boarding house rooms or whether there would be sufficient sunlight in the communal living rooms and open space areas.

1. In particular, the Council considered the amount of communal living space provided for 48 boarding house rooms to be inadequate given up to 96 people could reside at the site at full occupancy. The amenity of the boarding rooms was also of concern.

1. Eminent Constructions believed these concerns were unfounded given the proposal complies with all requirements of the SEPP including, in terms of private open space,

(a)   There is at least one area of 20 sq m with a minimum dimension of 3 metres for the use of lodgers, and

(b)   There is an area of at least 8 sq m with a minimum of 2.5 metres adjacent to the accommodation provided on site for the Manager.

1. Notwithstanding these contentions and to address the Council's concerns, Eminent Constructions proposed modifications to the plans which increase the floor to ceiling heights to 2.7m and provide raked ceilings and skylights to a number of rooms, and which see the vast majority of the rooms receive adequate sunlight. Information was also provided by Mr Goldsmith, consultant planner for Eminent Constructions, which indicated solar access provision for all of the rooms.

1. It was agreed by the Council that there were no controls requiring solar access be provided to boarding rooms and that the modifications proposed by Eminent Constructions addressed the Council's concerns with regard to solar access and the amenity of the boarding rooms.

1. At the suggestion of the Council's consultant planner, Mr Betros, Eminent Constructions also agreed to relocate the Manager's room within the boarding house to improve the amount of solar access the Manager would receive.

1. In terms of the communal living areas, the parties agreed that the proposal meets the requirements of the SEPP at clause 29 (2) (c) in that at least one of the communal living rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. It was however, also agreed by the parties that the amenity and solar access available to the communal living area on Level 3 could be improved to the satisfaction of the Council by extending the living area some 3.5m into an area previously proposed for external drying, and reducing the drying area accordingly. Modifications to the plans were undertaken to reflect these changes.

1. Furthermore Eminent Constructions proposed shade structures and shade tolerant landscaping to improve the overall amenity of the communal open space/courtyard area.

1. The parties agreed that other items listed initially as concerns of the Council or raised during the hearing could be dealt with by agreed minor modifications to the plans and to the proposed approval conditions. This included the ventilation mechanism to boarding rooms and the configuration of the Level 3 communal living area.

Potential overshadowing of approved adjacent development

1. Initially the Council queried the overshadowing diagrams provided with the application. The concern related to the extent of overshadowing of the commercial/residential development approved for this adjacent site. In response, Eminent Constructions provided plans which indicated that the adjoining development would be overshadowed under any scenario and the Council agreed this was the case and that this issue was not a ground for refusal.

Inadequate Lift Arrangements and Disabled Parking Arrangements

1. A lift is proposed to serve the boarding house floors. The Council initially considered this to be inadequate for the number of rooms and potential occupants and was concerned it did not meet regulatory access provisions.

1. Eminent Constructions argued that there is no minimum requirement in the SEPP in terms of the number or nature of lifts or how many rooms they should serve. Mr Goldsmith also provided evidence that the lift supplier, Kone, considered that one lift was sufficient and that it would comply with regulatory provisions.

1. Mr Betros accepted that, whilst only one lift was not desirable, it was adequate.

Public Interest Issues

1. The public interest issues were considered by Mr Betros to be two fold:

(i)   The internal amenity of the development for residents

(ii)   The issues raised by objectors.

1. In terms of the internal amenity for residents the Council accepted that, with the modifications proposed, additional information provided and updated conditions of approval, the proposal could now be supported as it provided adequate amenity for boarding house residents and adequately addressed the Council's remaining concerns.

1. Issues raised by objectors considered to be of public interest, were overdevelopment, traffic/parking impacts, insufficient private open space and anti social behaviour from boarding house residents.

1. The headmistress of the nearby Girls High School raised the following particular issues in submissions and on site:

(a)   Safety for students generally and in particular in having to cross the accessway to the parking area serving the development; and

(b)   The concentration of residents in one location and the potential for increased crime and anti-social behaviour.

1. A nearby business owner also raised concerns onsite with the likelihood of increased vandalism and anti social behaviour given this was already on the rise in the area.

1. In response to these issues, both parties agree that the area is appropriate to accommodate affordable housing as is proposed. I note that the site is in the Penshurst commercial strip in close proximity to Penshurst railway station and that the development meets the objectives of the zone in terms of comprising mixed use development including residential components. Such an area is typified by high volumes of traffic and pedestrians and the SEPP precludes the provision of additional parking for boarding house residents. Therefore the traffic volumes associated with the development are likely to be substantially less than for residential apartments or other forms of development.

1. In terms of safety for students walking to and from the station, a condition is agreed by the parties requiring the installation of an alert mechanism at the vehicular entry/exit point for exiting vehicles.

1. There is also no evidence to suggest increased criminal or anti-social behaviour associated with what is described as a "new generation" boarding house. Furthermore, a Management Plan is a proposed condition of approval and deals with matters such as security, resident amenity and resident conduct matters.

1. In my view the modifications proposed by way of amendments to the plans and approval conditions address the valid objectors concerns with regard to the proposal and note that they also now make the proposal acceptable to the Council.

Orders

1. The orders of the Court are therefore that:

1.   The appeal is upheld.

2. The application under the Environmental Planning and Assessment Act for a mixed use development incorporating a boarding house is approved.

3.   The development conditions in Exhibit 4 apply. These include the modifications agreed to by the parties including the modifications to plans DA-02 and DA-06 marked as revisions E and F respectively.

4.   The exhibits are returned to the parties with the exception of Exhibits 2, 3, 4 and A.

J L Smithson

Acting Commissioner of the Court

Decision last updated: 15 December 2011