HBM Cronulla Pty Ltd v Sutherland Shire Council

[2009] NSWLEC 1011

Land and Environment Court

of New South Wales

CITATION:

HBM Cronulla Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1011

PARTIES:

APPLICANT
HBM Cronulla Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10874 of 2008

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- boarding house population density, neighbour amenity, car parking, internal amenity.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Sutherland Shire Development Control Plan 2006

DATES OF HEARING:

11/12/2008 and 12/12/2008

 
DATE OF JUDGMENT: 

15 January 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Fraser, barrister
Instructed by Dicksen Lawyers

RESPONDENT
Mr G. Green, solicitor
Of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

15 January 2009

10874 of 2008 HBM Cronulla Pty Ltd v Sutherland Shire Council

JUDGMENT

Introduction

1 This appeal relates to a development application for the demolition of an existing dwelling and the construction of a two-storey 15-bedroom boarding house at 75 Kurnell Road, Cronulla. Four off-street car parking spaces are to be provided Existing development generally surrounding the site comprises a variety of residential development forms including residential flat buildings, townhouses and detached dwellings. Adjoining the site are townhouses and detached dwellings.

Planning controls

2 Under the Sutherland Shire Local Environmental Plan 2006 the site is located within Zone 5 - Multiple Dwelling A Zone and in this zone boarding houses are permissible with development consent. Clauses 33, 35 and 36 of the LEP contain various development standards including building height, floor space ratio and landscaped area and the proposal complies with these standards.

3 Also applicable is Sutherland Shire Development Control Plan 2006.

4 The application was placed on public exhibition on two occasions and some 35 submissions were received. These submissions raise various concerns including:

• Inadequate on-site car parking resulting in demands for on-street parking that is in short supply that in turn will cause traffic congestion.
• Likely antisocial behaviour from transient residents of the boarding house.
• The likely noise generated by up to 21 individuals in 15 bedrooms will adversely affect the existing quiet residential amenity especially at night.
• A boarding house will have a commercial rather than residential character and would thus be out of character with the surrounding residential neighbourhood. It could in effect become a backpackers hostel.
• Neighbouring residents particularly those to the south in the townhouses are very concerned that the two-storey building would overshadow their windows and private open space. There would also be a loss of daylight entering their north facing windows.

5 Several residents explained these and other concerns in detail when the hearing began on-site.

Council's decision

6 Following consideration of a supportive recommendation from Council officers and the negative report of the council's Independent Hearing and Assessment Panel the council decided that the application should be refused because there would be unacceptable privacy, traffic, acoustic and overshadowing impacts as well as having unsatisfactory pedestrian access excessive population density and insufficient car parking. More generally the location is inappropriate and all things considered the proposed boarding house would not be in the public interest.

7 On behalf of the applicant expert evidence was provided by:

• Mr L. Fletcher - town planning
• Mr C. McLaren - traffic and parking

8 On behalf of the respondent expert evidence was provided by:

• Mr S. Layman - town planning
• Mr P. Anderson - traffic and parking

9 According to the Statement of Facts and Contentions the following matters are, in essence, in issue:

• The population density of the development would be far in excess of that which would otherwise be expected in the zone and the amenity of neighbouring residential properties will be adversely affected in terms of overlooking, overshadowing and noise.
• Insufficient on-site car parking to accommodate the needs of the residents of the boarding house.
• Unsatisfactory internal amenity for the residents of the boarding house

Population density and neighbour amenity

10 The particulars of the issue involving density and neighbour amenity indicate that the population density of the proposal will be considerably in excess of the density of close by development and this would not meet the density objective of Zone 5. In turn this will have an unacceptable impact on the character of the area. In the absence of an on-site manager, development at this density will have unacceptable amenity impacts on neighbours.

11 In relation to amenity impacts Mr Fletcher and Mr Layman agreed that the potential impacts on neighbours' amenity involving overlooking could be adequately addressed by the provision of privacy screens.

12 As for density, they acknowledged that the only direct density standard in the planning controls is floor space ratio and this is complied with. Similarly the proposal now complies with landscaped area, height and setback controls. Despite this Mr Layman said that the proposal's failure to provide car parking in accordance with the DCP is an indication of excessive density.

13 In relation to noise impacts Mr Layman did not accept that the provision of an acoustic screen for the communal area at the northern end of the front balcony would provide sufficient protection for the neighbour to the north. That same neighbour would also be affected by noise generated from the use of the car parking area. Similarly given the limited space in the kitchen and elsewhere for indoor dining the outdoor patio at the rear of the site is likely to be heavily and frequently used by residents for meals and entertainment as well as social gatherings and would thus generate adverse noise impacts on neighbours to the north and south. Any management plan would be unlikely to be successful in managing these impacts especially in the absence of an on-site manager.

14 Also to be taken into account in relation to noise impacts is the fact that the premises will be occupied by up to 21 residents in 15 rooms where those rooms are effectively the domicile of those residents. No doubt each of those rooms will have a television and/or other equipment that will generate noise. Whilst Mr Tonin did not regard noise escaping from the rooms via the bedroom windows to be a problem I nevertheless understand the residents' concern that, especially on summer nights when the windows are open, this could adversely affect their amenity.

15 In response Mr Fletcher acknowledged that with the higher population density there is a greater potential for elevated noise levels. However noise associated with outdoor activities could be adequately controlled through the proposed management plan and access to an off-site manager in the manner described by Mr Hackett (a director of HBM Cronulla Pty Ltd) who has experience in managing guesthouses.

16 I agree with Mr Layman that the activities that he has described that would occur on a day to day basis and given that there can be up to 21 people on the premises I accept that it is imperative that these be strictly and consistently managed to ensure that the neighbours amenity is not unreasonably affected. It is likely that the proposed management plan if complied with could ensure such an outcome.

17 However the neighbours were concerned that, given the likely relatively transient nature of the guesthouse residents, by comparison with permanent residents, they would be much less likely to be concerned about neighbour amenity and, especially in the absence of an on-site manager, would disregard or forget the requirements of the plan of management. Also, the management approach effectively places the onus upon the neighbours to police the amenity protection aspects of the management plan. This would involve having to communicate with the off-site manager who would then have to travel from elsewhere to resolve any problems. By comparison, by having an on-site manager most or all of the possible problems would not arise at all.

Car parking

18 Clause 53 of the LEP and Chapter 7 of the DCP deal with transport, traffic and parking. Clause 53 provides that consent must not be granted unless certain relevant matters have been considered including: the demand for car parking where there is good access to public transport; the provision of car parking; and the extent to which walking, cycling and the use of public transport is to be encouraged. The design of car parking areas and the access to them is also to be considered.

19 Clause 2 in Chapter 7 of the DCP deals with car parking and is concerned to ensure that there are sufficient numbers of on site parking spaces and that off-street parking does not dominate streetscapes. Concurrently excessive parking provision is discouraged so as to indirectly encourage greater use of alternative means of transport. The particular controls for boarding houses impose the following minimum requirements:

• One space for every three beds.
• One space for any residential manager.
• One space for every two employees working at any one time.

20 Taking into account that it is not proposed to have a residential manager and cleaners only attend once each week there is no need to provide parking for these. Hence assuming there to be one bed in each of the 15 bedrooms, five parking spaces would be required.

21 Mr Layman and Mr Anderson believed that seven spaces should be provided on the basis of there being six bedrooms that will have double beds. Mr McLaren disagreed with this approach suggesting that couples sharing such beds, if they have a car, are likely to share this car. I agree with Mr McLaren and accept that the DCP's requirement is for five spaces. If there is a concern that, for example the larger bedrooms could, instead of having double beds, have multiple single beds that could in turn lead to a higher parking demand, this could be controlled by a condition of consent.

22 Mr Anderson was also concerned that the stacked parking arrangement would be unworkable and Mr Layman was of the same opinion especially in the absence of a full-time on-site manager. These spaces will be used by the mostly unrelated residents and in effect will only operate as two spaces. As a result the majority of the residents’ cars would be parked in surrounding streets. In response Mr McLaren said that management arrangements could be put in place to ensure that all four of the spaces can be utilised.

23 Both Mr McLaren and Mr Anderson agreed that there was; based on accumulation surveys, spare on-street parking capacity despite neighbours' observations to the contrary. Mr Layman said that any on street parking should be limited to the single parking space available on the street frontage of the site. Despite this Mr Anderson was concerned that excessive utilisation of on-street parking would be inappropriate given that the vast majority of sites in the vicinity have not been developed for medium density development as is permissible in the zone.

24 Whilst other inner-city councils have lower parking rates for boarding houses I have not been persuaded that the parking requirements of council's DCP should not be applied, particularly as car ownership is likely to be higher in Sutherland notwithstanding the availability of public transport. As I have already indicated five parking spaces are required. This requirement could have been satisfied by the provision of four on-site spaces and one on street (on the basis suggested by Mr Layman) however I am not satisfied that, for the reasons given by Mr Layman and Mr Anderson that the stacked parking arrangement would operate satisfactorily.

Overshadowing

25 Clause 14 in Chapter 3 of the DCP deals with daylight access including diffuse light from the sky and sunlight. In particular overshadowing of neighbouring residential properties particularly north facing windows and garden areas adjacent to dwellings is to be avoided. The relevantly applicable control is that new development must not eliminate more than one third of the existing sunlight to private open space and windows of living areas measured at 9 a.m. and 3 p.m. on 21 June

26 In the absence of relevant shadow diagrams Mr Layman was nevertheless able to conclude that reasonable solar access to the two town houses to the south would not be achieved because more than one third of usable private open space and north facing windows would be eliminated. More particularly he said that the rear most townhouse including its courtyard would lose most of the little sunlight that it already gets.

27 Whilst attempts were made during the hearing to better understand the likely overshadowing impacts, it is difficult to reach a definite conclusion as to the extent of additional overshadowing on the town houses by comparison with the not inconsiderable overshadowing that presently exists. Despite this and even taking into account the fact that the proposed building meets relevantly applicable floor space ratio, setback and height controls I am inclined to the view that the additional overshadowing would be unreasonable. Plainly had overshadowing been taken into account at the design stage and the necessary shadow diagrams prepared the impacts would have been better understood and perhaps been able to be mitigated.

Internal amenity

28 In the interest of maintaining neighbour privacy the applicant has agreed to the installation of a number of privacy screens or the use of obscure glazing for bedroom windows at first-floor level. Mr Layman was concerned bearing in mind that each of the bedrooms becomes its occupant's domicile and taking into account the need to close windows at night to protect neighbour amenity the internal amenity of these rooms that have little or no outlook would be unsatisfactory.

29 Mr Fletcher agreed that the internal amenity of some of the bedrooms was unreasonably affected because some of the privacy devices were unnecessary. Similarly alternative designs of louvres could not only provide neighbour privacy but also some outlook for the occupants. He also makes the point that some compromise in amenity is reasonable bearing in mind the objective of providing for low-cost housing.

30 In my opinion the present arrangements whilst perhaps not fatal to the application are unsatisfactory and as suggested by Mr Fletcher require more careful attention. Perhaps a boarding house with less accommodation would provide the design flexibility for a better outcome not only in relation to internal amenity but also the other matters that are of concern.

Conclusions

31 In his submissions Mr Fraser directed my attention to BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 where McClelland CJ held that planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted and that conversely If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. In this context he concluded that in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

32 Broadly speaking a boarding house, being permissible with development consent and complying with the development standards in the LEP, would be consistent with the Multiple Dwelling A Zone. Moreover, notwithstanding that a boarding house does not comprise multiple dwellings, a boarding house would clearly meet objective (d) of the zone that seeks to provide a range of housing choices in accessible locations. In this context Mr Fletcher explained that the promotion of low-cost housing such that boarding house here proposed is in the public interest and that to achieve this some trade-offs are unnecessary.

33 However, taking into account the conclusions that I have reached in relation to car parking, daylight access and residential amenity and the relevantly applicable provisions of the DCP, I have not been persuaded that the likely environmental impacts of this particular boarding house are acceptable. Whilst I can accept that to an extent, a trade-off in terms of the amenity provided for occupants of a boarding house might be acceptable in achieving low-cost housing, this is not sufficient to set aside the other concerns. As a consequence the appeal must fail.

34 The orders of the Court are therefore:

1. The appeal is dismissed
2. Development application No 07/1346 for the demolition of an existing dwelling and the construction of a two-storey 15-bedroom boarding house at 75 Kurnell Road Cronulla is determined by refusal.
3. Exhibit A is retained

___________________

T A Bly
Commissioner of the Court
ljr