Filippello v Burwood Council

[2015] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:	Filippello v Burwood Council [2015] NSWLEC 1342
Hearing dates:	12 August 2015
Date of orders:	14 August 2015
Decision date:	14 August 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: health consulting rooms, amended plans address contentions
Legislation Cited:	Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Burwood Local Environmental Plan 2012
Texts Cited:	Burwood Development Control Plan
Category:	Principal judgment
Parties:	Maree Filippello (Applicant) Burwood Council (Respondent)
Representation:	Solicitors: Mr V Conomos, Conomos Legal (Applicant) Ms J Hutton , Matthews Folbigg (Respondent))
File Number(s):	10412 of 2015

Judgment

1. Ms Filippello lodged Development Application No 2014.200 with Burwood Council on 16 December 2014 seeking consent to change the use of an existing dwelling house at No 2 Boronia Avenue, Burwood to health consulting rooms (orthodontist surgery).

2. The application was not determined within the 40 day prescribed period and Ms Filippello is appealing its deemed refusal.

The site and locality

3. The site is located on the south eastern corner of Boronia Avenue and Victoria Street and contains a single storey dwelling with detached garage to its south. The dwelling is accessed from Boronia Avenue which is its longest frontage.

4. Properties in the locality are predominantly single storey free standing dwelling houses with some two storey dwellings. A boarding house is located opposite the site and a town house development for aged persons is located to the rear of the properties on the western side of Boronia Avenue.

5. The eastern extent of the Burwood Town Centre is approximately 200m to the west of the site with Burwood Railway Station an approximate 10 minute walk.

Background and the proposal

6. The application as lodged proposed the use of the bathroom and five rooms within the existing dwelling house as the surgery, demolition of a rear enclosed verandah, conversion of the existing laundry to a bedroom and pantry to a bathroom and use of the rear portion of the site as a dwelling. The dwelling would comprise an eat-in kitchen/laundry, bedroom, bathroom and living area.

7. The existing garage would be retained and used for staff parking with two additional parking spaces and associated vehicle manoeuvring areas constructed within the rear yard. One of those spaces would be an accessible space. The area to the east of the proposed parking area is nominated as private open space for use of the occupants of the dwelling.

8. According to the Statement of Environmental Effects filed with the application the proposed hours of use of the surgery would be 8am to 7pm Monday to Friday and 9am to 1pm on Saturdays. The surgery would be operated by one orthodontist with one staff member.

9. The application had been considered by Burwood Council at a meeting held on 27 April 2015 when it deferred its determination and also passed a resolution that a policy or guidelines be prepared that addresses the change of use of dwelling houses in low density zones to health consulting rooms particularly in relation to the proportion of health consulting rooms to living area in the building.

10. The appeal was filed on 21 May 2015 and the application remains undetermined.

11. A conciliation conference was held on 30 July 2015 following a site view. The view included hearing evidence from an objector and adjoining property owner. The issues raised by the objector are summarised as follows:

• Proposal uses too much of the dwelling house and is more suited to a commercial rather than residential zone;

• The proposed hours of operation and excessive and will adversely affect the amenity of the area;

• The development provides inadequate parking and there is already a high use of on street parking in Boronia Avenue;

• The traffic generated by the development would cause safety concerns, particularly to the children who walk to school/public transport;

12. As a result of the issues raised in the council’s Statement of Facts and Contentions and discussions held during the conciliation conference, the applicant prepared amended plans and sought and was granted leave during the hearing to rely on those plans (Exhibit A). The council did not oppose leave being granted or seek costs under s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct), agreeing the changes were minor.

13. The amended plans provide for the demolition of the existing rear verandah and construction of a new area to be used as a living room in that place.

14. The plans also provide an additional parking space and reorganisation of those spaces within the rear yard so that a total of four parking spaces are accommodated. The area of private open space would be increased, separated from the carpark by internal fencing and its access is better related to the proposed residential portion of the building. A ramp would be constructed to facilitate access to the surgery from the carpark and landscaped areas were revised.

15. The surgery use is unaltered from that originally proposed in plan however the residential component is increased to provide a larger bedroom and living space and separate laundry area.

16. The applicant agreed to reduce the hours of operation and this is addressed through the draft conditions of consent, condition Planning (2). The hours would be 8am to 6pm Monday and Tuesday, 9am to 6pm Wednesday to Friday and 9am to 1pm on Saturday.

17. The council notified residents and owners of adjacent properties of the amended plans. No submissions were received in response to that advice.

18. The amended plans address the council’s contentions however the council staff did not have the necessary delegation to enter into an agreement pursuant to s34(3) of the Land and Environment Court Act 1979. The matter proceeded to a hearing in accordance with the provisions of s34(4)(b)(i). The parties agreed that the evidence heard during the conciliation could be evidence during the hearing.

The planning controls

19. The site is zoned R2 Low Density Residential under Burwood Local Environmental Plan 2012 (LEP). Clause 2.3 requires a consent authority to have regard to the objectives of a zone when determining a development application that applies to land within that zone. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

20. Health consulting rooms are defined in the Dictionary to the LEP as follows: “means premises comprising one or more rooms within (or within the curtilage of) a dwelling house used by not more than 3 health care professionals at any one time”.

21. Health care professional has the following definition: “means any person registered under an Act for the purpose of providing health care”.

22. Health consulting rooms are permitted with consent in the R2 zone.

23. It is now common ground that the proposed use would be health consulting rooms. The council originally contended, due to the small size of the proposed residential component that the use would not fall within that definition however is now satisfied, given the increase in floor space allocated to the dwelling component that the use would satisfy that definition.

24. Burwood Development Control Plan (DCP) applies to the site with Part 4 Development in Residential Areas relevant to the determination of the application.

The evidence

25. A Joint Town Planning Report (Exhibit 1) was prepared by Mr A Wilson for the applicant and Mr G Turrisi for the council. They agree that the amended plans satisfactorily address the council’s contentions in the case.

26. In relation to permissibility, they agree that the whole building has a total gross floor area (GFA) of 180sqm on a site area of 764sqm which equates to a floor space ratio (FSR) of 0.24:1 and complies with the maximum FSR development standard of p.55:1 under the LEP. The GFA of the dwelling component is 58sqm which equates to 32% of the total GFA with the dental practice component of 122sqm equating to 68%. They agree that the proposal would meet the definition of health consulting rooms with the dwelling of a size and layout that is functional and legitimate, the landscaped open space is useable, the solar access available to that area and the dwelling is reasonable and the entry to the dwelling is appropriate. I agree.

27. They also agree that the 4 car parking spaces provided complies with the parking provisions in the DCP with one health care professional as proposed and recommend that the fence height along Boronia Avenue be reduced to a maximum of 900mm to improve sight lines for vehicles leaving and entering the property.

28. They conclude that all contentions have been addressed through the amended plans providing conditions are imposed to address the hours of operation and the fencing details. They agree the development is in compliance with the relevant planning controls and has planning merit.

29. The council has formulated draft conditions of consent which address the issues raised by the objector through the limitation of hours of operation, the number of persons working at the site and requiring the health care practitioner to reside on site thereby limiting the demand for parking.

30. Having regard to this evidence and agreeing that the residential component provides a legitimate area for use as a dwelling, there are no reasons why consent should not be granted. The council did not oppose the grant of consent.

31. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application No 2014.200 for the change the use of an existing dwelling house at No 2 Boronia Avenue, Burwood to health consulting rooms (orthodontist surgery) is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibit A, are returned.

_____________________

Sue Morris

Commissioner of the Court

10412 of 2015 Morris (C) (304 KB, pdf)

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Decision last updated: 14 August 2015