Instyle Developments v Marrickville Council

[2008] NSWLEC 1468

Land and Environment Court

of New South Wales

CITATION:

Instyle Developments v Marrickville Council [2008] NSWLEC 1468

PARTIES:

APPLICANT
Instyle Developments

RESPONDENT
Marrickville Council

FILE NUMBER(S):

10494 of 2008

CORAM:

Murrell C

KEY ISSUES:

Appeal :- the adaptive re-use of an existing warehouse building for boarding houses

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan of 2001
Marrickville Development Control Plan No. 35

DATES OF HEARING:

23/09/2008 and 09/10/2008

EX TEMPORE JUDGMENT DATE:

9 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Jackson, solicitor
of Pikes Lawyers

RESPONDENT
Mr G. Christmas, solicitor
of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Murrell C

9 October 2008

This determination was given extemporaneously

and it has been edited prior to publication

1 COMMISSIONER: The applicant in these proceedings is seeking the adaptive re-use of the existing warehouse building on the property known as 6-8 Bridge Street, Tempe for a boarding house.

2 The Court met on site the first morning of the proceedings. This matter commenced as a s 34 conciliation conference and following the conference it was clear and the parties requested the Court adjudicate the matter because no agreement could be reached during the conciliation phase. As such this judgment is in respect of s 34(5) of the Land and Environment Court Act.

3 The current use of the building is an industrial operating under a consent issued in 1972, for clothing manufacturing and is also currently used for the warehousing of clothing.

4 The surrounding area is generally residential, single storey dwellings of a fine grain, within a cul­de­sac.

1. The subject site is proposed to be subdivided into two lots of approximately 10.2 m wide and some 47 m in length yielding about 435 sq m per lot. The current lot is some 870 sq m.

6 The purpose of the subdivision is to provide for two occupancies to allow that the proposal for the adaptive re-use of the warehouse for boarding houses. Council has a control whereby boarding houses cannot contain more than ten residents. For the Residential A Zone a study entitled the council undertook a “Housing Affordability and Appropriateness in Marrickville”, April 1998. The findings of this together with other matters result in the The purpose of the subdivision is to provide for two occupancies to allow that the proposal for the adaptive re-use of the warehouse for boarding houses. Council has a control whereby boarding houses cannot contain more than ten residents. For the Residential A Zone a study entitled the council undertook a “Housing Affordability and Appropriateness in Marrickville”, April 1998. The findings of this together with other matters result in the Local Environmental Plan of 2001 wherein the council made the decision that boarding houses would be permissible in the residential zones including the residential A zone. The aims of the LEP include:

• To enhance the quality of life and promote the well being of the local community.
• To encourage housing affordability, diversity and choice.
• To promote an accessible and safe living environment”.

7 The Residential ‘A’ Zone, as I said, permits boarding houses with no more than ten residents and the objectives of the 2A zone are:

“(A) To identify areas suitable for predominantly single dwelling residential development.
(B) To provide opportunities for non-residential development, compatible with surrounding area and
(C) To enable sites with an area greater than 1500 sq m for multi-unit housing”.

8 The definition of boarding house is at the rear of the LEP as follows:

Includes a house let in lodgings, hostel or Class 3 boarding house under the Building Code of Australia which provides a permanent place of residence but does not include a backpackers hostel, a guest house, a private hotel, a motel or other tourist accommodation.

9 The other guideline that the Court has been referred to is the council’s Development Control Plan No. 35. It is noted that there is no DCP for boarding houses per se, however DCP 35 is for multi-unit dwellings and residential flat buildings. (that is volume 2). It is noted in the DCP that there is a provision for the residential conversion of former industrial warehouse buildings and there are no specified requirements for conversions, as in most cases this form of development entails working within an existing building envelope.

10 The table sets out for residential flat buildings and multi-unit housings in the various zones the minimum site area requirements, the maximum floor space ratio and the maximum site coverage, not applicable in this instance. C2 of the DCP states that

Notwithstanding compliance with the above numerics applicants must demonstrate that new development is acceptable in terms of the following impacts upon the street and adjoining development, that is overshadowing and privacy, streetscape presentation, building setbacks, parking and landscape requirements, visual impact, the existence of significant trees on site, the size and shape of the allotment site topography, impact on existing views.

11 The DCP for warehouse and industrial conversions states:

In most instances the conversion of such buildings involves working within an existing building envelope. No minimum open space and landscape area requirements are specified. Council will however require a certain amount of open space to be provided for future residents. The provision of open space within an existing envelope will require an innovative design response. Some options include the provision of internal Courtyards or atria.

12 It is agreed between the experts SEPP 65 does not apply to the subject development application.

13 The Court had the benefit of hearing from planning experts, Mr McNamara a consultant town planner, on behalf of the applicant and Ms Osman a senior development assessment planner with Marrickville Council.

14 The contentions were narrowed during the proceedings as follows:

• The development will result in a prohibited purpose of development in that a boarding house containing more than ten residents is likely given the size of the rooms.
• The intensity of the proposed development is inconsistent with the existing character of the neighbourhood.
• he design of the proposed buildings provides poor amenity for occupants and has no regards to the principle of ESD and
• issues raised by objectors.

15 The Court heard, stated, from a number of resident objectors on site and their concerns relate to the impact of the proposed boarding house on the residential amenity of this tightly-knit community and street and also the increase in traffic, the increase in number of persons, and the parking within the street which is currently at a premium.

16 The Court also heard in Court from Mr Gow and Mrs Gow, the owners of No. 1 Bridge Street, Tempe. Their concerns relate to the scale of the development and that it will interfere with the amenity of the neighbourhood, with the impact of the possible number of tenants. Concern was also expressed about the scale and the increase in traffic 24 hrs per day: proximity to schools and playgrounds; waste management; downgrading of the neighbourhood; and the fact that there are currently 117 boarding houses in the Marrickville Local Government Area and council, it would appear has difficulty in overseeing the operations or management and that the street would be better served by two residential dwellings on the subject site rather than the conversion of the warehouse.

17 I understand that the subject site is approximately five minutes from Sydenham Railway Station. The Court must assess the development application in the context of the planning controls. Council has made a conscious decision that boarding houses be permissible throughout the residential zones. Council also encourages the adaptation or reuse, recycling of warehouse industrial buildings which is reflected in its instruments.

18 The Court understands and appreciates the concerns of local residents where change is proposed and it is understood that existing residents do not always embrace change. The role of the Court, however, is to assess the development application against the statutory planning framework of the council, that is the local planning regime. I must also have regard to the impacts that any change would bring on a neighbourhood and I must assess whether the impacts would be reasonable or unreasonable in that context.

19 There is no objection to the building in terms of its built form existing or continuing to exist in the street as it has co-existed in this residential area for many, many years. As such the building form has the issue of direct impacts of overshadowing on residents. The issue of bulk and scale is also not an issue. The presentation of the built form in the has not been raised by council as an issue in the proceedings.

20 The current use of the building would appear to be a relatively low intensity of a warehouse use for some manufacturing but predominantly warehousing of clothing that is distributed. It is agreed between the parties, the existing use rights provisions of the Environmental Planning and Assessment Act prevail in terms of standards, although it is also clear from council’s controls that where there is adaptation or recycling of industrial buildings, conversions of warehouses, that the FSR and other controls do not apply. There was concern expressed that the proposed development is an overintensification or an overdevelopment of the subject site. It is also clear from council’s controls that the council envisages boarding houses be in residential areas.

21 This is a rather exceptional circumstance in that it is proposed to subdivide the subject land such that it provides for a boarding house on each site with a common party wall to accommodate no more than ten persons each. The floor area of the boarding house is such that the individual lodgings are relatively large being made up of a ground floor and an upper mezzanine level. It is proposed the there be common or communal facilities within each of the boarding houses of laundry, meal preparation, kitchen areas and an outdoor rear courtyard.

22 The proposed alterations and additions include the addition of a second storey within the existing roof void and an increase of the height of the roof at the front of the site to accommodate a second storey. Each of the proposed boarding houses has two adaptable rooms located on the ground floor and there is a total of 18 rooms, that is nine rooms per boarding house with one having the ability to accommodate two persons, totalling ten occupants for each boarding house. A total of 20 persons or 20 future occupants of the attached two boarding houses. The proposed alterations and additions also include for each building there would be a parking space at the front accessed from the street, landscaped area, laundry, private Courtyards, balconies, communal kitchen, living area and nine lettings with bedroom and living areas and a bathroom.

23 The council contends that the amenity for the future occupants is not satisfactory. In this regard I had the benefit of extensive consideration by the experts and at the end of the day it is agreed that SEPP 65 does not apply nonetheless the Court must be assured that there is reasonable amenity provided for the future occupants of the boarding houses. The council contends that the internal amenity is not adequate. However, in terms of the evidence presented to the Court, I am persuaded by the applicant’s expert that the amenity for each occupancy is satisfactory. It is noted it will not be exceptional and this is balanced against also the adaptive reuse of the building. The council contends that the amenity for the future occupants is not satisfactory. In this regard I had the benefit of extensive consideration by the experts and at the end of the day it is agreed that SEPP 65 does not apply nonetheless the Court must be assured that there is reasonable amenity provided for the future occupants of the boarding houses. The council contends that the internal amenity is not adequate. However, in terms of the evidence presented to the Court, I am persuaded by the applicant’s expert that the amenity for each occupancy is satisfactory. It is noted it will not be exceptional and this is balanced against also the adaptive reuse of the building.

24 I am satisfied that there will be light and ventilation provided to each of the occupancies. I note in terms of solar access that the boarding house located on the property known as No. 6, two out of the nine do not receive the two hours minimum solar access provided for in council’s DCP for dwelling houses. However for No. 8 all of the occupancies are in excess of three hours. This site has its side boundary to the north and I am satisfied that the amenity of all the occupancies will be adequate and appropriate for the purpose proposed and for the adaptive reuse of this warehouse.

25 A judgment was referred to the Court of the Senior Commissioner, that is Michael Hesse & Associates Pty Ltd v Parramatta City Council 2003 NSWLEC 387. I distinguish these proceedings as in Hesse it was a different scenario as the adaptive reuse was for a residential flat building but in terms of the principles it provides guidance and I quote at paragraph 13.

In essence the applicant argued that normal standards of performance should be applied less stringently to this proposal because it involved the adaptive reuse of an existing building. This raises an important question of planning principle namely is adaptive reuse per se in the public interest. I accept that in most cases of adaptive reuse there is a saving of resources because building materials and energy used in producing and erecting them are used for the second time, saving resources is one element of ecologically sustainable development the promotion of which is one of the aims of the EP&A Act.

26 At paragraph 15 the Senior Commissioner goes on to say

In my opinion to be in the public interest an adaptive reuse project must have an element of public benefit apart from resource conservation and one of the following circumstances must be present. The building is of historical heritage value, the building is attractive and fits into the urban design context, the building is much loved by the community, the new use serves the public interest better than the existing use.

27 In my assessment, the adaptive re-use of this warehouse for a boarding house is in the public interest, and consistent with the articulated council’s policies, in terms of affordable housing and in the Local Environmental Plan, where boarding houses are a permissible use and affordable housing is encouraged to be located within residential areas. In my assessment, the adaptive re-use of this warehouse for a boarding house is in the public interest, and consistent with the articulated council’s policies, in terms of affordable housing and in the Local Environmental Plan, where boarding houses are a permissible use and affordable housing is encouraged to be located within residential areas.

28 I have given serious consideration to what the amenity impacts of a boarding house in this Residential ‘A’ Zone and, as stated, I understand that people enjoy a level of amenity and it is important that residential amenity is maintained for existing residents. At the same time boarding houses are contemplated in the zone and the existing use is one that is a non­conforming use within the Residential ‘A’ Zone.

29 I am satisfied that the proposed use for a boarding house will not create unreasonable impacts on the amenity of the residents in the street. In this regard it is important that the management of the boarding house comply with the Plan of Management and there are to be additional areas of concerns addressed in the Plan of Management to ensure that residents have a contact point for any concerns that may arise from time to time including the presentation or the tidiness or orderliness and the management of the subject premises. It is important that there be recourse to a manager who should respond to complaints in a timely manner. It is clear that the responsibility to ensure that boarding houses and such facilities do not impact on the residential amenity is provided by the management of such premises should be proactive to ensure that it does not require council to expend its precious or I should say scarce resources to ensure the proper management of such facilities. At the end of the day residents do have recourse to complain to the council but in the first instance it is more appropriate that management of such premises be proactive. In this regard it is not only the internal cleanliness and orderliness of the premises but it is important that boarding houses do not externally impact on the surrounding residential area.

30 The parties to these proceedings provided a set of conditions. There is some disagreement in terms of the conditions including condition 2:

The premises on each allotment is to be used exclusively as a boarding house as defined under the Marrickville LEP 2001. Each boarding house is limited to a maximum of ten residents. The buildings are no to be adopted for use as a back packers accommodation, serviced apartments on a RFB. The purpose being to ensure that each premises are used in a consistent way with the permissibility of a boarding house of ten residents.

31 I see no reason as to why this should not be a condition of consent in that it will also alert any future persons as to the appropriateness of the site for a boarding house of a maximum of 20 persons.

32 With respect to condition 3:

“All tenancy occupation agreements for rooms in the boarding house shall be for a minimum period of three months and shall stipulate that the room is to be occupied by only one person with the exception of one room in each boarding house”.

33 This is not the definition as defined in council’s LEP nonetheless in terms of the spirit and the orderliness and management of the property I consider this is an appropriate condition. This will also allay fears that it and ensure boarding houses are managed in accordance with the conditions. I am not saying that this would occur but for example, a backpackers hostel may have other impacts and as would more occupants and while this is certainly not the applicant’s intention in these proceedings but nonetheless if the development or the building was on-sold any buyer would be aware of such a condition. Clearly I will need to include an additional sentence at the end of this condition which would be to the effect except for in exceptional circumstances.

34 The other conditions that are in dispute relate to the tenancy occupation agreement of 24 hours notice for council to inspect. I consider this is an onerous condition and is not appropriate for conditions of consent and as such it will be deleted. I heard evidence today that there has been concern expressed previously and this is a matter for the legislators and not a matter for the Court in imposing a condition to this effect.

35 In terms of condition 7 the Management Plan is to be updated/amended to be consistent with the additional provisions provided to the Court this morning and to ensure that the ongoing management of the premises, the mechanism for complaints is addressed and the Management Plan is to be amended prior to the issue of the construction certificate.

36 Condition 8 relates to the rent levels for rooms and a tax exemption. I am not persuaded that this is an appropriate condition to attach. Apparently it arises from provisions relating to SEPP 10. These are boarding houses and as such they will provide for more affordable housing. Clearly also the size and amenity of these occupancies will be greater than what currently occurs in many boarding houses and therefore there will be a market for boarding houses of this particular standard and the rent levels should be left to market forces. Nonetheless, it still does provide for more affordable housing within the municipality consistent with council’s policies. This condition is therefore deleted. The other conditions are as generally agreed to between the parties.

37 In my overall merits assessment of this development application, having regard to the expert evidence to the Court, having regard to the site inspection and considering the concerns of the residents I have decided that conditional approval should be granted to the development application. I am satisfied that the development is contemplated by council’s controls in the conversion of an industrial warehouse for residential purposes, and boarding houses are permissible in the zone. It may not have been contemplated that there would be two boarding houses side by side but nonetheless there is no provision which prohibits same.

38 I am satisfied that the likely impacts of the development including the environmental impacts on the built environment are such that the proposed development is satisfactory. I am also satisfied that the site is suitable for the proposed development. I recognise that it is an existing building that is to be recycled and has co-existed harmoniously within this residential area and there is no reason as to why the built form will not continue to present in a similar way with its use as boarding houses.

39 I am not persuaded by the council’s evidence that the intensity of the development is an overdevelopment. I am satisfied that the number of residents can be managed and accommodated within the facility. It is a fact that there will be pedestrians and traffic and I must have regard to the fact that council’s controls require one parking space for each boarding house and this is provided in the development. On the use of the building in terms of a 24 hrs, use clearly all residential premises are used 24 hrs. There are comings and goings from all residences from time to time at different hours of the evening and morning but this can not warrant refusal of the application.

40 On the question of the public interest, I am satisfied that the adaptive reuse of this building is in the public interest and for a purpose that is required. The public interest is diverse and I am satisfied that the proposed development subject to the conditions requiring management to co-exist harmoniously in this residential area is important. I am satisfied the public interest(s) is served by the conditions of consent and the proposal is also in the public interest by providing more affordable accommodation.

41 Accordingly on the basis of my assessment above the formal orders of the Court are:

1. The appeal in respect of the properties known as 6-8 Bridge Street, Tempe, is upheld.

2. The development application submitted to Marrickville Council and as amended and shown in Exhibit K for the subdivision of the land into 2 lots with a boarding house on each and with a maximum occupancy of ten persons each is approved subject to the conditions of consent contained in Annexure ‘A’.

3. The Exhibits are returned to the parties with the exception of K and 9.

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