Joe Touma v Bankstown City Council
[2012] NSWLEC 1157
•08 June 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Joe Touma v Bankstown City Council [2012] NSWLEC 1157 Hearing dates: 01 June 2012 Decision date: 08 June 2012 Jurisdiction: Class 1 Before: Smithson AC Decision: 1.The appeal is upheld.
2.Application DA 443/2011 for a boarding house development at 12 Weigand Avenue, Bankstown is approved.
3.The development conditions in Annexure A apply.
4.The exhibits are returned to the parties with the exception of Exhibits A, B, C, 1 and 3.
Catchwords: DEVELOPMENT APPLICATION - boarding house, Affordable Rental Housing SEPP, SEPP 65 applicability for boarding houses, car parking, cross ventilation, internal amenity for boarding house residents, and public objection to boarding house Legislation Cited: Bankstown Development Control Plan 2005
Bankstown Local Environmental Plan 2001
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No. 65 Australian Standard AS 1688.2 - 2002Cases Cited: Nil Category: Principal judgment Parties: Joe Touma (Applicant)
Bankstown Council (Respondent)Representation: Counsel
Dr Berveling (Applicant)
Solicitors
M Bonnano, Lyndsay Taylor Lawyers (Respondent)
File Number(s): 11206 of 2011
Judgment
This is an appeal against the refusal by Bankstown Council (the Council) of a boarding house at 12 Weigand Avenue, Bankstown (the site).
The proposed development is located on the western side of Weigand Avenue. The site is rectangular in shape with a fall of 1.9 m from the front to the rear boundaries. It has a 20.115 m street frontage with a total site area of 915.1 sqm. The rear boundary adjoins the Bankstown-Yagoona rail line. Three storey residential flat buildings adjoin both side boundaries and the locality is primarily a mixture of detached dwellings and three storey residential flat buildings.
The site contains an existing two storey dwelling, an associated swimming pool and no significant onsite vegetation. A 1.8 m high concrete wall extends along the rear and side boundaries surrounding the swimming pool and is proposed to be retained within the development.
Details of the Proposal
The proposed development involves the demolition of the existing dwelling and the construction of a 37 room boarding house, a caretaker's room, communal rooms and basement car parking for 13 cars and 8 bikes. The boarding rooms are self contained with private kitchens and bathroom facilities. A number have their own balconies and all are accessed off a single corridor on each level.
The building is part 3 storey, part 4 storey with a basement level and increases in height from the south to the north. The top level is recessed from the street.
Key Statutory Controls
The proposed development has been lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). Under the ARH SEPP, a boarding house is a permissible use in certain zones, including within the zone which applies to the site.
The site is zoned Residential B under the Bankstown Local Environmental Plan 2001 (BLEP) which is a medium density residential zoning. The application was assessed under the provisions of the ARH SEPP, the BLEP and the relevant provisions of the Bankstown Development Control Plan 2005 (BDCP). In determining the application, the Council also had regard to the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and the associated Residential Flat Design Code (RFDC).
The application was referred to Railcorp given the proximity to the railway. Railcorp provided concurrence subject to conditions.
Public Objections
The original application was advertised resulting in 17 individual submissions and a 6 signature petition. Advertising of a modified proposal raised similar levels of objection.
The submissions came from residents of Weigand Avenue and raised a variety of concerns which in summary were:
(a)Lack of onsite parking
(b)Increased traffic
(c)The height and density relative to the height and density in the locality
(dOverdevelopment of a small site
(e)Overshadowing and loss of privacy and views
(f)The likely calibre of the boarders and their impact on the neighbourhood in terms of anti-social behaviour and property values
During the hearing the Court heard from 2 objectors representing residents who live in the two adjoining apartment buildings. The objectors raised concerns in terms of lack of parking, solar impacts on neighbours, overlooking, height, and the number and nature of, and internal amenity for, boarding house residents. It was also queried whether or not the rooms would be let only to boarders who could be classified as requiring affordable housing.
Overview of Council Concerns with the Proposal
Concerns leading to the refusal by the Council in essence, relate to:
(a) Insufficient parking
(b) Incompatibility with the local character
(c) Inadequate cross ventilation for the boarding rooms
(d) Inadequate storage
(e) Inadequate floor to ceiling heights
(f) Overshadowing
(g) The intensity of the development
(h) Substandard living accommodation
(i) The public interest.
Modified plans addressed the majority of these issues however the Council, through their planning consultant Mr Goodyer, remained concerned with cross ventilation and internal amenity for boarders given the enclosing nature of the proposed balcony privacy screens. The Council limited their public interest concerns to the same issues in terms of the amenity of the development for future occupants.
Mr Goldsmith, the planning consultant for the Applicant, did not agree that these were reasonable concerns or warranted refusal of the application.
Both Mr Goodyer and Mr Goldsmith agreed that there was only limited guidance in the ARH SEPP on the amenity and design considerations that should pertain to boarding house developments. Further, that SEPP 65 and the RFDC had both been developed prior to the advent of the newer style boarding houses and to the ARH SEPP. Therefore, the extent to which the provisions of these documents should be applied to an assessment of newer style boarding house development in excess of two storeys was not clear.
Cross Ventilation
Mr Goodyer did not consider that the development provides adequate ventilation for the majority of the boarding rooms. His assessment was based on the provisions of the RFDC which contain a 'Rule of Thumb' that 60% of dwellings should be naturally cross ventilated. Only approximately one third of the boarding rooms are proposed to be cross ventilated. The solution proposed by the Applicant of louvres above the doors for the balance would, in the opinion of Mr Goodyer, compromise amenity for residents because achieving the cross ventilation would require the louvres to be open and thus allow the transmission of noise between the dwellings.
Mr Goodyer further argued that this concern was exacerbated by the fact that the majority of boarding rooms were accessed by a 'double loaded' single corridor (ie rooms either side of a single corridor) - beyond the maximum of 8 dwellings recommended as another 'Rule of Thumb' in the RFDC for such access.
Mr Goldsmith argued that:
(a)The RFDC allowed exceptions to the 'Rules of Thumb' where developments can demonstrate a high level of amenity for common lobbies, corridors, and units - the affected rooms in the proposed development all had balconies which would provide a higher level of amenity than could be expected in older style boarding houses. Communal rooms are also provided;
(b)The development met the RFDC 'Rule of Thumb' that developments which seek to vary from the standard must demonstrate how natural ventilation could be achieved, and the development does this;
(c)To redesign the development to reduce access from common corridors in order to improve ventilation would have adverse implications for other beneficial design features proposed,
including ease of access to and configuration of communal areas;
(d)The trade off required between improved ventilation and increased noise was no different to residents in a residential flat building having to make a choice to leave a window open to improve ventilation and thus increase their exposure to external noise;
(e)The proposed Management Plan would help to control the amount of noise within the corridors;
(f)The bonuses under the ARH SEPP to increase affordability, in particular increased floor space ratios, juxtaposed with the SEPP's limitations on maximum room size, limit viable design alternatives. It was therefore not appropriate to fully apply all of the provisions of SEPP 65 and the RFDC to the development; and
(g)All of the rooms in the development comply with the ventilation requirements of the relevant Australian Standard - AS 1668.2-220 - The Use of Ventilation and Airconditioning in Buildings, and the Applicant proposed a condition to ensure this compliance.
Internal Amenity
The Council was concerned about the internal amenity of the proposed dwellings given the sense of enclosure and lack of outlook associated with proposed frosted glass privacy screens around the balconies of the majority of the 37 dwellings. Further, the proposed access off single double loaded corridors for up to 14 dwellings was contrary to the RFDC 'Rule of Thumb' of a maximum of 8 dwellings, thus precluding dual aspect dwellings.
It was the Applicant's view, put by Mr Goldsmith, that boarding rooms are by their nature small and are not required or necessarily expected to have an outlook or, if they did, they were typically from windows only. In this instance the affected rooms would have balconies enabling occupants to go outside their rooms for fresh air and sunlight even if they had no horizontal outlook. Furthermore there were communal living areas provided which had outlooks and were accessible to all residents.
Community Concerns
In terms of parking, and the objectors' concerns that there was already a lack of parking in the street, the parties agreed that the development did not meet the 'deemed to comply' requirements of clause 29 (2) of the ARH SEPP in that only 13 parking space are provided against a 'deemed to comply' requirement of 16 spaces. However, this 'deemed to comply' requirement is only in terms of precluding Council using parking as a ground for refusal if the deemed to comply provisions are met rather than a mandatory requirement.
The parties agreed that, notwithstanding the 'deemed to comply' provision is not met, the proposed 13 car bays are sufficient parking for the development given that the site is 845 m to a railway station. This is only 45 m further than the 800 m distance which would make the area an 'accessible area' under the SEPP whereby only 8.4 bays would be required. Furthermore, the route to the station is generally along quiet flat streets. Only 13 bays are required for boarding houses under the Council's Car Parking Code, albeit Mr Goodyer did note this Code was drafted before the advent of the self contained boarding rooms that typify this proposal and which would likely generate more parking demand than older forms of boarding houses.
In terms of the development being occupied other than by residents requiring affordable housing, the Applicant argued that the Environmental Planning and Assessment Act 1979 (the Act) defines "affordable housing" and to be approved and legally operate under the ARH SEPP, the development would need to be used for this purpose.
Findings
I agree with the planners for both parties that, in the absence of many definitive design controls for boarding houses, it is somewhat of a subjective assessment as to the appropriate design of boarding house developments which are intended to provide the social benefit of more affordable housing yet need to have a minimum level of amenity for their future residents.
However, it is clearly not the intent that the provisions of SEPP 65 and the RFDC be fully applied or the ARH SEPP would require this and the resultant development would be indistinguishable from a residential flat building and thus not meet the intended affordability outcomes.
The proposed development, as modified, addresses all of the Council's concerns other that in two areas related to the amenity of future residents: namely cross ventilation and outlook, where no guidance is provided by the relevant environmental planning instruments. In the absence of relevant design guidance, and on the basis of Mr Goldsmith's evidence, I am satisfied that the adverse impacts would not be so severe as to refuse the development or result in an unreasonable amenity outcome for future residents.
I also find that the parking proposed is adequate for the development having regard to the fact that the intent of the ARH SEPP is not to provide significant amounts of parking which could encourage permanent occupancy, the provision meets the Council's DCP parking requirements for the proposed use, and the site is within 850 m of a railway station. I note also that the Council agrees that sufficient parking is provided.
In terms of the other issues raised by the objectors but not raised as a concern by the Council, these are not considered to warrant refusal of the development for the following reasons:
(a)The height of the development meets the wall height requirements of the Council's DCP and has been designed not to exceed the height of adjacent development. Furthermore, and notwithstanding it is in part four storeys, the design results in a development that is of a similar height to residential flat development in the locality.
(b)The solar access impacts associated with this proposal comply with the RFDC requirement for adequate access and would be similar to the impact associated with a complying residential flat development which is a permissible use of the site.
(c)There is a requirement under the ARH SEPP that the development meets the definition in the Act of 'affordable housing'. Furthermore, it is considered unlikely that those who had the choice to live in more affordable housing would, particularly for any length of time, reside in a development which, to qualify as 'affordable', is permitted to have a reduced level of amenity.
Accordingly, the appeal is upheld.
Orders
The orders of the Court are that:
1. The appeal is upheld.
2. Application DA 443/2011 for a boarding house development at 12 Weigand Avenue, Bankstown is approved.
3. The development conditions in Annexure A apply.
4. The exhibits are returned to the parties with the exception of Exhibits A, B, C, 1 and 3.
J L Smithson
Acting Commissioner of the Court
Decision last updated: 08 June 2012
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