Legowski v Snowy River Shire Council

[2016] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation:	Legowski & anor v Snowy River Shire Council [2016] NSWLEC 1110
Hearing dates:	22 March 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	Conditions of consent are to be formulated following the Courts determination of the matters in dispute.  The conditions are to be filed by 15 April 2016 following which final orders will  be made in Chambers
Catchwords:	DEVELOPMENT APPLICATION: appeal against decision for review of conditions of approval for “serviced apartment” – whether “serviced apartment” can accommodate 15 people
Legislation Cited:	Environmental Planning and Assessment Act 1979 Snowy River Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Sylvia Legowski and Ian Cameron (Applicants) Snowy River Shire Council (Respondent)
Representation:	Counsel: Mr C Drury, solicitor (Applicants) Mr S Simington, solicitor (Respondent)   Solicitors: Sparke Helmore (Applicants) Lindsay Taylor Lawyers (Respondent)
File Number(s):	11171 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of an application for review by the Snowy River Shire Council on 11 August 2015, under s 82A of the Environmental Planning and Assessment Act 1979. The application seeks a review of conditions 6, 7 and 8 of DA0036/2015 imposed by the council for the use of an existing 4 bedroom dwelling for a “serviced apartment” at 7 Twynam Street, Jindabyne (the site).

2. Conditions 6, 7 and 8 are:

6. The developer is to ensure that each bedroom in the holiday dwelling is to be occupied by the number of persons not exceeding the number listed in the following schedule:

Bedroom 1= 2persons

Bedroom 2 = 2persons

Bedroom 3 = 2 persons

Bedroom 4 = 2 persons

7. The developer shall ensure that the holiday dwelling is not used to accommodate more than eight (8) persons.

8. The development shall ensure that a sign be erected on the back of the main entrance door(s) into the premises or holiday dwelling stating the following:

"The maximum number of persons permitted to be accommodated in the holiday dwelling is eight (8)".

Note: the developer may obtain the abovementioned sign (i.e. sticker) from Council. Please contact Council's Department of Environmental Services on [phone].

3. The review by the applicant sought to increase the number of persons using the “serviced apartment” from 8 persons to 15 persons in conditions 6, 7 and 8. The development application sought 15 persons to occupy the “serviced apartment” however the number was reduced to 8 persons as a result of the council assessment of the application.

4. A contention relating to inadequate parking was not pressed by the council.

The site and surrounding area

5. The site is Lot 14 in D P 1156431. It is a battle-axe block with a total area of 956.3 sq m, including the access handle. The surrounding area is within the residential subdivision known as Highview Estate and is a mix of single dwelling houses, dual occupancy dwellings and serviced apartments. The existing residential development is made up of dwellings which are permanently occupied or used as private holiday homes or serviced apartments. Of the 65 residential lots in the subdivision 10 lots have been approved for use as serviced apartments (including the subject application with a maximum of 8 persons) with some having dual occupancies with both units being used for this purpose. Another application has yet to be determined by the council. There are 13 approved serviced apartment properties (based on each dwelling in a dual occupancy) in Highview Estate; 12 of which are in Twynam Street and the other in adjoining Jillamatong Street. The approvals provide for a maximum of 10 persons although the combined maximum number of persons for the dual occupancies at 15A and 15B Twynam Street and 43A and 43B Twynam Street are 18 and 20 persons, respectively.

Relevant planning controls

6. The site is within Zone R2 Low Density Residential in Snowy River Local Environmental Plan 2013 (LEP 2013). Serviced apartments are a use permissible with consent in this zone. The Dictionary to LEP 2013 defines a “serviced apartment” as:

serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner’s or manager’s agents.

Note. Serviced apartments are a type of tourist and visitor accommodation—see the definition of that term in this Dictionary.

7. Clause 2.3(2) provides that the Court must have regard to the zone objectives when determining a development application. The zone objectives 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.

• To ensure development maintains residential amenity and contributes to the small-scale residential character of the zone.

• To enable short-term, low impact tourist and visitor accommodation compatible with the surrounding residential character of the zone.

8. Clause 7.8 specifically addresses serviced apartments and states:

7.8 Serviced apartments

(1) The objective of this clause is to ensure that development for the purposes of serviced apartments, including for holiday letting, addresses health, safety and amenity issues.

(2) Development consent may be granted for development for the purposes of serviced apartments if the consent authority is satisfied that the development:

(a) will be designed and managed so that car parking, noise and traffic will not have a detrimental impact on the amenity of the surrounding area, and

(b) will be designed and managed to minimise the risk of hazards, such as emergency egress, building fire safety, bush fire or flooding, to occupants, and

(c) provides a high standard of amenity for occupants and adjoining neighbours, and

(d) will be managed so that each letting of each apartment will not be for a period of more than 3 months.

Note. Serviced apartments are a type of tourist and visitor accommodation (see Dictionary). The Land Use Table specifies the zones in which such development is permitted.

9. Snowy River Development Control Plan 2013 (DCP 2013) applies. Part E addresses Non Residential Development with Tourist Development at pt E1 and Serviced Apartments at pt 5. Relevantly, pt 5.1.4 states

5.1.4 Objective ACCOMMODATION USE

To provide a high standard of amenity to visitors of Snowy River Shire free from overcrowding within accommodation dwellings and inappropriate intensification of dwelling use affecting the area at large.

Controls

Serviced apartments will:

• Be permitted a total dwelling occupancy of no more than 10 persons for serviced apartment use.

• Adhere to the following table with respect to the number of people accommodated in a sleeping room in an area that is sewered:

• Number of persons  • Minimum floor area (m2)

2                                       7

3                                       11

4                                       15

5                                       19

6                                       23

10. As explained to the Court, DCP 2013 was amended around November 1015 to include requirements for serviced apartments. Prior to these amendments (and the time the development application was lodged, assessed and determined) DCP 2013 contained no guidelines or requirements for serviced apartments.

A negotiated outcome?

11. Prior to the hearing and following the site inspection and evidence from an objector adjoining the site, the parties discussed potential solutions to the contentions and those matters raised by the objectors; being loss of privacy and noise from the south facing deck and the likely general interference of the enjoyment of their property from the persons using the serviced apartment.

12. The applicant proposed:

• a translucent screen be placed on the existing balustrade on the south facing balcony edge to a height of 1.5 m,

• additional planting be located along the western facing edge of the balcony, and

• a trial be conducted over a 12 month period for a maximum of 15 residents in the building.

13. In response, the council proposed:

• a translucent screen be placed on the existing balustrade on the south facing balcony edge and the western facing edge to a height of 1.5 m, and

• a trial be conducted over a 12 month period for a maximum of 12 residents in the building.

14. Unfortunately, neither party accepted the proposal of the other party to settle the dispute but the hearing proceeded on the basis of each party’s proposed alternate solutions. The solution suggested by the applicant was also rejected by the objector.

The evidence

15. Expert town planning evidence was provided by Ms Sophie Ballinger for the council and Mr Ivan Pasalich for the applicant. Ms Ballinger and Mr Pasalich provided a further joint report based on their respective options to address the contentions and those matters raised by the adjoining objectors.

16. Ms Ballinger maintains that a trial for 15 persons would impose an undue impact on neighbouring properties even for a 12 month trial. While the proposed screen will reduce visual privacy impacts, acoustic privacy impacts will be unacceptable from potentially 15 persons on the deck whereas a maximum 12 persons is suitable for the trial period.

17. The continuation of the screen on the balustrade along the western edge of the balcony will provide better visual and acoustic privacy for the property to the west rather than additional landscaping even though no objection was received from this property when then the application and the s82A review were advertised.

18. Mr Pasalich states that a translucent screen on the existing balustrade on the south facing balcony edge to a height of 1.5 m, additional planting along the western facing edge of the balcony, and a trial be conducted over a 12 month period for a maximum of 15 residents in the building is an acceptable approach to address any potential visual privacy and acoustic privacy impacts on adjoining properties. The use of a lesser number of persons, as suggested by the council, will not allow a proper assessment of any impacts.

19. Mr Pasalich further states the provision of a Plan of Management and the large setbacks between the building on the site and adjoining buildings further protects the amenity of the adjoining properties.

Findings

20. With the benefit of the site inspection of the site and other serviced apartments in Twynam Street and an understanding of the relevant planning controls, I agree with the conclusions of Mr Pasalich for a number of reasons.

21. First, and while the appeal must be considered on the planning controls that apply at the time of the appeal, it is unreasonable, in my view, that controls that did not apply at any time during the life of the application with the council should now be used as a reason to support the refusal of the appeal. I note that Ms Ballinger maintained that the most recent amendments to the DCP were not the direct result of this application.

22. Ms Ballinger and Mr Pasalich addressed the controls that applied at the time of the council’s consideration of the development application. The document was titled “Information Requirements - Serviced Apartments – Up to Five (5) Bedrooms” (the Requirements). Ms Ballinger described the Requirements as an “information requirement document” that was created to address requests from people requiring information on applications for serviced apartments. As the Requirements were not adopted by council or not used in the assessment of any application, Ms Ballinger stated that the Requirements could not be regarded as a “guideline” or “policy”. Mr Pasalich, on the other hand, stated that the Requirements, were informed by the Snowy Rivers DCP 2008 which operated for six years. The Requirements were available to the public on the council web site and provided at pre-application meetings and as such should be regarded as a public policy.

23. As I understand, at the time of the lodging, assessing and determining the application, the sole means of controlling the number of people in a serviced apartment was through the Requirements and the size of the bedrooms; the larger the bedroom, the more people that could be accommodated in the serviced apartment. There was no dispute that the proposed development satisfied this means of assessing the number of people that can occupy a serviced apartment. I have little trouble in concluding that as the Requirements were produced by the council staff and publicly available then they must be given some weight. I note a copy of the Requirements was attached to the council officers report on 10 February 2015 when the application was originally considered by the council.

24. While the current DCP controls maintain the same requirement for bedroom size and consequent number of people that can be accommodated in a bedroom, a blanket limit of 10 people is now provided. It is not clear from the DCP whether the 10 person limit applies to the site or each building in a dual occupancy (as is the case for 15A and 15B Twynam Street and 43A and 43B Twynam Street where there is an approval for 18 and 20 persons, respectively for each site). Potentially, and if this approach of allowing each building of a dual occupancy to be considered separately in relation to the number of people that can be accommodated on the site, then the strict compliance with the maximum 10 people for a single dwelling is going to be less effective in controlling any impacts on adjoining properties.

25. Second, I accept that the proposed screen along on the existing balustrade on the south facing balcony edge to a height of 1.5 m will overcome any privacy issues to the objectors property. The 1.5 m overall height will limit the ability to look down into the adjoining property while still allowing a reasonable outlook from the balcony.

26. Third, the screen will also help reduce any noise generated from the balcony and the living area of the dwelling although the evidence suggested that the peak leasing time is during the ski season where the climate would not likely lead to large numbers of people for long periods of time using the balcony.

27. Fourth, there is no technical basis for the council’s assumption that 12 people may be acceptable but 15 people is not acceptable for a trial period. I am not convinced that any impacts on the amenity of adjoining properties is likely to be perceived as being any different, if the trial period was for 12 people or 15 people.

28. Fifth, the use of additional landscaping along the western facing edge of the balcony, rather than additional screening is appropriate in this instance given that this will provide some screening from people using the balcony. The west facing edge if the balcony is a less prominent aspect (compared to the south facing balcony) and the potential for overlooking is reduced from this location.

29. Taking into consideration the proposed trial period, the general context and the number of approved serviced apartments, the proposed additional vegetative screening and the privacy screen, I am satisfied that having had regard to the zone objectives, pursuant to cl 2.3(2) there are no matters that would support the council’s approach.

30. Similarly, I am satisfied that the proposed trial period is consistent with the objective in cl 7.8(1) and the relevant matters in cl 7.8(2) particularly sub sec (c) in that the development “provides a high standard of amenity for occupants and adjoining neighbours are properly addressed.

31. As suggested by the parties, conditions of consent are to be formulated following the Courts determination of the matters in dispute. The conditions are to be filed by 15 April 2016 following which final orders will be made in Chambers.

________________

G T Brown

Commissioner of the Court

Decision last updated: 01 April 2016