LKF Investments Pty Ltd v Inner West Council

[2019] NSWLEC 1458

Land and Environment Court

New South Wales

Medium Neutral Citation:	LKF Investments Pty Ltd v Inner West Council [2019] NSWLEC 1458
Hearing dates:	6 September 2019; 11 September 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on amended plans contained in Exhibit O. (2)   The appeal is dismissed. (3)   Development consent for Development Application D/2018/190 for the demolition of existing structures and erection of a three storey boarding house building comprising 20 rooms with basement car park and associated works is refused. (4)   The Exhibits are returned, except for Exhibits A, E and O.
Catchwords:	DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) – boarding house – provision of car parking – car share – stormwater drainage
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Affordable Rental Housing)
Cases Cited:	Pomering v Hawkesbury City Council [2018] NSWLEC 1146 Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	LKF Investments Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T To (Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2018/185808
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by the Inner West Council (the Respondent) of Development Application D/2018/190 for the demolition of existing structures and erection of a three storey boarding house building comprising 22 rooms with basement car park and associated works.

2. The site is legally described as Lot A in DP322448 within the R1 General Residential zone with a frontage to the western side of Henry Street measured at 10.365m and a depth of 50.29m measured to the northern boundary, resulting in a site area of 523.4m2.

3. In accordance with its usual practice, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 January 2019, and at which I was the presiding commissioner. The conference commenced with an onsite view, and heard resident submissions. The parties reconvened at the Court later that same day and reached in-principle agreement. I adjourned the conciliation conference to allow the preparation of amended plans and the agreement. However at a later date, the parties advised that the final terms of the agreement could not be resolved and the conference was terminated on 18 February 2019. The parties subsequently consented to me hearing the matter.

4. Prior to the hearing, the Applicant was granted leave to amend its application and rely on documents and amended plans that were entered as Exhibit B. The parties agree that the amended plans resolved a number of the contentions. Remaining contentions may be summarised as follows:

1. Adverse solar access and amenity impacts on a neighbouring property

2. Provision for stormwater drainage

3. Inadequate provision of on-site car parking and traffic engineering.

Case management and procedure

5. Also relevantly to the proceedings, I presided at a case management conference prior to the hearing and made directions to the effect that:

1. The Applicant was directed to file an amended Statement of Facts and Contentions in reply on 30 August 2019.

2. The Respondent was to file the bundle of documents and draft conditions of consent on 2 September 2019.

3. The parties were to ensure that the relevant joint expert reports were to be filed a week prior to the hearing, on 30 August 2019.

6. To the extent that not all of the case management directions were followed by the parties, I address the matters in more detail below.

7. While the hearing was initially listed for one day, on 6 September 2019, with the parties consent, I directed that the hearing commence at an earlier time on 6 September 2019. I later proposed an adjournment to allow for closing submissions on 11 September 2019.

8. Having presided at the conciliation conference onsite in January 2019, I had been given the opportunity to inspect the site and hear resident submissions made at the time. Consequently, the parties agreed that the hearing should commence at Court, with a number of residents providing submissions that are contained in Exhibit 8, and were also provided orally by:

1. Ms Maria Petrozzzi, the owner of No.22 Henry Street

2. Ms Vicki Gibson, the owner of No.26 Henry Street

3. Mr Warren Underwood, a resident of 34-36 Henry Street

4. Ms Grace Prestipino, on behalf of the Immanuel Family Pty Ltd, the owners of No.40 Henry Street and other properties in the vicinity.

9. The resident submissions may be summarised as follows:

1. Traffic congestion and limited car parking in Henry Street adversely impacts resident amenity and, in one case mentioned, restricts emergency vehicle access in the street.

2. Ceremonies and events held at the St Gerasimos Church in Henry Street means on-street car parking is in demand at all times of the day.

3. The proposed development is excessive, and imposes adverse impacts on neighbouring properties by limiting solar access and compromising the privacy enjoyed currently.

4. Inadequate oversight and supervision of boarding house residents may result in anti-social behaviour.

Expert evidence

10. The Court was assisted by the following experts:

Area of Expertise	Applicant	Respondent
Town planning	Jennie Askin	Greg Goodyer
Stormwater	Pavel Kozarovski	Sean Howie
Traffic engineering	Oleg Sannikov	Sean Howie
Aboriculture	Melanie Howden	Leon Limberiou

11. The Arboriculture experts conferred at the commencement of the proceedings and resolved contentions related to trees on the site, and on adjoining properties. Their joint expert report was entered as Exhibit 5.

Planning and amenity

12. At the outset, the Respondent objected to the late filing of a supplementary statement by the Applicant’s town planning expert, Ms Askin (Ex E) following the filing of a joint expert report that resulted from conferencing with the Respondent’s town planning expert, Mr Goodyer. In essence, the Respondent contends that a further statement by a single expert that conflicts or resiles from a position held in joint conference is not in accordance with the Court’s practice note on expert witnesses.

13. Mr To, counsel for the Applicant, argues that while the experts initially agreed that the contention relating to solar access impacts to adjoining properties could be resolved by deleting Room 14, the Applicant’s architect later developed a plan that retained Room 14, by a more general re-design, and it was Ms Askin’s obligation to the Court to confirm a change in her opinion.

14. However, the Respondent submits that the amended plans appended to Exhibit E had the effect of amending the contentions. For example, Mr Goodyer considers Rooms 11-15 to now be smaller than the minimum area prescribed in cl 29(2)(f) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). He explained to me that his concerns resulted from excluding a reasonable area adjacent to the kitchen, which he states to be a clearance of 1200mm for a person using the kitchen.

15. Ms Askin considers Mr Goodyer’s allowance to be excessive, and she expressed satisfaction with the size and layout of the rooms. In any event, the Applicant submits that cl 29(2)(f) to be a standard that cannot be used to refuse consent and proposes that, should the Court be otherwise minded to grant consent, a condition can be imposed to further amend plans to require replanning Rooms 11-15. Should this be pursued, I also noted to the parties that furniture listed in the Plan of Management to be provided as built-in to the rooms, would also require replanning or revising on the plans as, in the case of Rooms 17, 19 and 20, the robe appears too narrow for storage, and appears to conflict with the layout of the kitchen.

16. The parties agreed that further plans would be prepared to show the deletion of Room 14. These plans were later entered as Exhibit O at the commencement of the second day of the hearing, held three days later. Furthermore, it was agreed that the deletion of the floor space in the vicinity of Room 14 substantially resolved the solar impact on the neighbouring property.

Stormwater drainage

17. It is agreed between the parties that an easement through the property at No.265 Norton Street, which is located to the rear of the subject site, provides a path for the gravitational flow of stormwater, and a means of connecting to the main trunk drainage line, consistent with the provisions of Part E1.2.2 and E1.2.5 of the Leichhardt Development Control Plan 2013 (LDCP) as follows:

“Part E1.2.2 Objective

O1 To integrate site layout and the drainage system to avoid nuisance flows and flooding within the development and onto neighbouring properties.”

18. The chapeau to Part E1.2.5 is, relevantly, as follows:

“…

The discharge should always be in the same direction and within the same catchment as the site naturally drains. The discharge of subsurface waters from basement structures to the public drainage system should be avoided as it can cause nuisance or public health risks. There possible subsurface water should be retained on site or otherwise connected to the piped trunk drainage system.”

19. The objective and relevant controls of Part E1.2.5 are in the following terms:

“Objective

O1 To maintain existing natural drainage patterns and avoid nuisance and flooding to the drainage system and downstream properties.

Controls

C1  Where the site drains naturally towards any street frontage, stormwater runoff from all roof and impermeable areas must be drained by gravity to the public drainage system of that street frontage.

C2  Where the site naturally drains away from all street frontages and cannot discharge stormwater directly to Parramatta River or Sydney Harbour, stormwater runoff should be drained to a piped trunk drainage system, if it passes through the site, or an existing registered drainage easement benefiting the site.

Where neither of these options is available but the roof areas of the development may be drained to the street:

a. for minor developments that result in additional roof area of less than 20sqm of roof area (including a garage or carport), the existing site drainage system may be utilised;

b. for minor developments that result in the addition or alteration of more than 20sqm but less than 40sqm of roof area, as much roof and surface areas as practicable should be drained by gravity to the street frontage above;

c. for development to a single dwelling that results in the addition or alteration of more than 40sqm of roof areas, the entire roof areas of the existing dwelling should be drained by gravity to the street frontage above; and

d. for new single dwellings, at least 80% of all paved/impermeable surfaces should be drained by gravity to the street frontage above.

The drainage of any roof and surface areas that cannot drain to the street must be designed to cause no concentration of flows or nuisance to downstream properties.

C3  Where the controls in E1.2.5 C2 cannot be met, a drainage easement over a downstream property to the street below should be sought. Council will not consider alternative solutions unless detailed evidence of the efforts to obtain an easement is provided and the development is for a single dwelling or minor works to a residential, commercial or industrial building.

C4  Connection to the public stormwater drainage system should be undertaken as follows:

a. Where the development is for up to two dwellings or minor works to residential, commercial or industrial buildings, new connections should be made to the kerb and gutter of the street frontage.

The peak discharge to the kerb and gutter is 15 Litres/second for the 100 year Average Recurrence Interval storm event. Where the site discharge exceeds 15 Litres/ second, the outlet pipeline must be connected directly to the public piped drainage system. Alternatively, for developments that require on site detention facilities, the storage volume may be increased such that the peak discharge is limited to 15 Litres/ second;

b. For all other developments, the site must be drained to the downhill extent of the site, generally in the direction that the site naturally drains. The outlet pipeline must be connected directly to the public piped drainage system. Where the piped drainage system is not available at the street frontage, the existing public system must be extended to the frontage of the site as specified by Council.

Council will only consider permitting the site to be drained contrary to the direction that the site naturally drains where it is demonstrated that there is no adverse impacts on the receiving drainage system. At a minimum, additional on-site detention and on site retention storage must be provided to ensure that peak flow rates and flow volumes are not increased in the receiving drainage system.

…”

20. In her oral submission to the Court, Ms Prestipino confirmed that the Immanuel Family Pty Ltd had declined to grant the Applicant an easement over No.265 Norton Street as the Immanuel Family wished to preserve their rights to develop the properties in their ownership at a future date without being burdened by an easement.

21. The Applicant relies on written correspondence to the Immanuel Family Pty Ltd, contained in submissions, to evidence the efforts to obtain an easement. That easement being declined, Mr Kozarovski explained the design of an alternative stormwater drainage system that, according to calculations provided, would result in the same flow rate to Henry Street as the current outflow, and would eliminate any flow towards neighbouring properties and so fully comply with the objective of E1.25 of the LDCP.

22. The Applicant’s proposed stormwater drainage system is shown in Exhibit F. As I understand it, the drainage plan relies on the flow of stormwater within the site to a rainwater tank and on site detention tanks, using both gravitational flow and, from the basement, via the operation of two submersible pumps. Two onsite detention (OSD) tanks are proposed. OSD 1 is shown under the northern passage with the purpose of controlling surface run-off. OSD 2 is shown under the driveway at the entry to the site, with the purpose of collecting overflow from the rainwater tank. When OSD 2 is filled, a flow of around 7 L/sec will result to the public system in Henry Street, and then connect to the trunk drainage system located at the north of Henry Street.

23. In order to achieve a gravitational flow of water from the rear of the site, the Applicant advises me that it is proposed to build up the level of the communal open space to RL 25.70, as shown on Exhibit F, even though the architectural plans, at Exhibit O, show the level of the communal open space at RL 25.55.

24. According to the Applicant, the proposed stormwater system will be an improvement as the proposed development will result in the cessation of uncontrolled flow of stormwater from the subject site to No.265 Norton Street. The parties are agreed that stormwater does not otherwise flow in an uncontrolled manner from the subject site to No.44 Henry Street which is identified as a flood control lot. Instead, and while it is agreed between the experts that flooding to No.44 Henry Street results from stormwater flow in Henry Street itself, the cause of flooding in Henry Street is not agreed.

25. Mr Kozarovski believes that flooding in Henry Street is a result of the limited capacity of the stormwater pits in the Street, as they are constrained by the aperture of the heelguard grate. It is for this reason that the Applicant proposes to install an additional pit in Henry Street, which he states will improve flooding to No.44 Henry Street.

26. However, Mr Howie is of the view that the Applicant has incorrectly identified the reasons for localised flooding in Henry Street, and so the proposed stormwater system would likely fail to avoid nuisance and public risk. To Mr Howie, localised flooding is more likely to be a consequence of inadequately sized subsurface pipes in the street which fail to cope with overland flow from the wider catchment higher up Henry Street.

27. Whatever the reason for the flooding, the Respondent submits that the proposed alternative stormwater drainage plan should not satisfy the Court in relation to cl 6.4 of the Leichhardt Local Environmental Plan 2013 (LLEP) which requires:

6.4 Stormwater management

…

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

…

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving water, or if that impact cannot be reasonably voided, minimises and mitigates the impact.

28. Consequently, the Respondent considers a deferred commencement condition is required for the Applicant to secure an easement and to ensure the provisions of the LDCP are achieved.

29. However, the Applicant submits that the Council has already approved alternative stormwater systems which return stormwater to Henry Street similar to that proposed, evident in the Council approval of No.28 Henry Street in September 2017 for the demolition of existing dwelling and structures and construction of two dwellings in a Torrens title subdivision (Ex K). Mr Kozarovski states that, if the proposed development was for a dual occupancy or single dwelling, the stormwater system as proposed by the Applicant would fully comply with the LDCP.

30. The Respondent considers the approval in Exhibit K to be entirely consistent with Part E1.2.5 C4 (a) as follows:

“Where the development is for up to two dwellings or minor works to residential, commercial or industrial buildings, new connections should be made the kerb and gutter of the street frontage.”

31. Mr Howie is similarly minded, stating that as the development the subject of the development application is not for either a single dwelling or a dual occupancy, but for a 20-room boarding house, the stormwater drainage plan is not supported by the controls in the LDCP.

32. In relation to stormwater, and notwithstanding a number of inconsistencies on, and between the architectural drawings and stormwater drainage plans, I am satisfied that the system designed by Mr Kozarovski achieves the objectives and controls of the LDCP, and would avoid any significant adverse impacts of stormwater runoff on adjoining properties as required by cl 6.4 of the LLEP.

33. I consider the stormwater drainage plan to rely on proven systems and technologies and with sufficient onsite water detention to satisfy me that the outward flow of water from the site can be moderated so as to avoid causing nuisance to neighbouring properties, and I accept that the system as designed, including a proposed new pit to Henry Street would likely avoid adverse impacts on the receiving drainage system.

Car parking and traffic evidence

34. The Respondent contends that the proposed development should be refused as it fails to provide adequate onsite parking. In particular, the basement car park fails to accommodate the required number of vehicles, and the car park design does not allow vehicle circulation and manoeuvrability that is adequate and safe, as not all car spaces permit forward entry and exit from the site.

35. Notwithstanding the Court’s directions at [5(3)], the joint expert traffic report (Ex 4) was filed with the Court after 5pm on the eve of the hearing and contained a number of plans that varied from the amended architectural plans in Exhibit B. As explained by the traffic experts, in order to provide adequate vehicle circulation and manoeuvrability, it was necessary to remove the communal laundry from the basement. Additionally, the experts showed a car park exit ramp of different dimensions and gradient to those on the plans and sections, as well as identifying amendments that would be required to a portion of the structure over the car park ramp in order to achieve appropriate clearance for a larger vehicle.

34. The traffic experts prepared their report on the agreed assumptions that the proposed car park basement is unable to be lengthened due to the structural root zone of adjacent trees and that a turntable would assist a larger vehicle to manoeuvre with appropriate ease. The experts had conferred to produce 3 options for the basement car parking arrangement based on their assumptions, and which varied from the layout in Exhibit B. The options developed by the experts relied on mechanical car parking devices, including a turntable, and car stackers. Option 1 provides 5 car spaces. Option 2 provides 7 car spaces. Option 3 provides 9 car spaces.

35. Mr Bonanno, for the Respondent, initially objected to the late notice of these options as he considers that, had the options been known prior to the hearing, experts in mechanical car park devices could have advised on any implications such as possible acoustic impacts on adjoining properties. Furthermore, Option 2 and 3 rely on a car stacker and slider mechanism whose function was described to me as ‘rotating’ cars in an automated arrangement that may, according to Mr Bonanno, be incompatible with the car share scheme proposed by the Applicant, as car share users may not be familiar with how to access a shared vehicle which may be secured in the car slider.

36. The parties agreed that only Option 1 would be pressed, comprising a turntable and 5 car spaces in the basement. In proceeding on this basis, it was also later submitted by Mr To for the Applicant, that although the architectural plans at Exhibit O did not show a turntable, the Court could direct that a turntable be added should the Court be otherwise minded to grant consent.

37. In relation to the number of car spaces to be provided, the Applicant accepts that the proposal does not achieve the number of car spaces required in the non-refusal provisions of the ARH SEPP and submits that there were no numerical car parking requirements in Table C4, referenced in Control C14 of the LDCP at the time the application was lodged.

38. Control C14 reads as follows:

“C14  Developments and land uses, which are not specifically listed in Table C4: General Vehicle Parking Rates, will be assessed on their merit in accordance with the following criteria to determine the required parking provision:

a. parking requirements established by survey of comparable establishments;

b. the person capacity of the premises;

c. the proportion of visitors, staff or patrons likely to arrive by car;

d. the characteristics of the use and whether persons are likely to arrive in concentrated groups and the consistency of such arrivals/departures;

e. the availability and level of service of public transport;

f. details provided in a Site Specific “Travel Plan”. Refer to ‘Travel Plans’ within Section C1.11 (refer to Control 26); and

g. the proportion of trips induced by the development that could be taken by bicycle”

41. While the Council did subsequently endorse amendments to the LDCP which effectively apply the provisions of the ARH SEPP in relation to car parking for boarding houses from 1 August 2019, the Applicant asserts that the appeal must be determined as if the amendments had not commenced, and my assessment must be based on the merits of the application.

42. In this regard, the Applicant initially submits that I should find that a combination of two resident spaces, including one being accessible, and one for the on-site manager, and two car share spaces satisfies the numerical control C13, by relying on control C25 (c) of the LDCP which provides that a car share vehicle may be considered equivalent to five (5) privately owned vehicles. The Applicant relies on GoGet as a recognised car share provider, and submits correspondence to this effect (Ex 2, Appendix 3). In the alternative, I should be satisfied that the underlying objectives of the control are achieved and so should apply the provisions of the LDCP flexibly, pursuant to s 4.15(3A) of the EPA Act.

43. Additionally, the Applicant then adopts Option 1 as proposed by the traffic experts to provide 5 spaces in the basement, noting that two carshare spaces are, according to Control C25(c) of the LDCP, equivalent to ten (10) spaces.

44. In further support of the number of car spaces provided, the Applicant relies on a Traffic and Parking Impacts Report (Ex A, Tab 8) that indicates on-street parking is available on weekends and weekdays, and on research conducted by the UNSW City Futures Research Centre titled ‘Occupant Survey of Recent Boarding House Developments in Central and Southern Sydney’ (Ex J) that suggests around two-thirds of boarding house residents do not own a car. When considered alongside the public transport available in close proximity to the site (Ex G), the Applicant submits that sufficient studies have been undertaken to satisfy the Court that the proposed development will avoid adverse environmental impacts on the local area.

45. According to the Respondent, any failure to provide a reasonable number of car parking spaces will also fail to cater for the reality of residents who have a car and need to park it somewhere, even in those instances where the owner of the car chooses to use public transport for commuting, shopping and the like. The consequence of this, according to the Respondent, is that boarding house residents with cars will seek parking on the street, thereby adding further to the congestion referred to in the submissions from Henry Street residents.

46. The Applicant relies on Control C25 of the LDCP which permits the use of car share arrangements, however the provisions underlying Control C25 work together, according to Mr Goodyer, and apply to multi-dwelling housing, which the dictionary of the LLEP defines to include boarding houses. Furthermore, car share facilities are additional to any numerical requirements, and are not a substitute. Read in the alternative, the Respondent submits that an applicant required to provide 50 spaces in a large residential development could satisfy the requirement with just 10 carshare vehicles. Control C25(c) does not, in the words of the Respondent’s written submissions, establish a general one to five ratio.

47. To the Applicant, utilising car share in the development achieves an effective equivalent to the car parking requirements of the ARH SEPP. Furthermore, car share is expressly encouraged by the LDCP and has been accepted as an appropriate means of providing for the transport needs of people in residential development by the Court in decisions such as Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186 (Turner Architects) by Commissioner O’Neill.

48. In further support of the proposal, the Applicant would accept a condition of consent imposed on the development requiring the owner to pay for membership of the car share scheme for boarding house residents, removing any cost barrier to membership, and the Applicant would also accept a condition requiring car share spaces to be maintained for the life of the development.

49. As stated previously, the car share vehicles are proposed to be located in the basement car park. The amended plans at Exhibit O indicate a garage door at the base of the car park ramp which, the Applicant submits, could be used to regulate access to the car park basement with the intention of directing residents and GoGet users to the basement via the gate at the Henry Street frontage of the property, and along the northern passage to the lift and stairs connecting the ground floor to the basement.

50. Ms Askin advises that it is not uncommon for GoGet vehicles to be located in secure basement car parks, where security may be provided via the GoGet user swipe card. Furthermore, the GoGet App provides users with detailed instructions on how to access the vehicles, including the path to be taken.

51. However, to Mr Goodyer that path is either dangerous, in the event GoGet users seek to access the basement by the car park ramp, or it is convoluted and likely to bring boarding house residents and GoGet users in to conflict in the event GoGet users follow the northern passage. In particular, GoGet users must walk past what Mr Goodyer describes as the ‘first building entrance’, being the stair access to Room 9 & 10, and separately, the stairs to Rooms 11-13, and past the doors to Rooms 1-6 in order to access the stairs and lift to the basement.

52. According to the Respondent, this access arrangement is inconsistent with Control C26 of the LDCP which requires the location of car share vehicles to be conveniently located and appropriately sign posted.

53. The traffic experts agree that the replanning of the basement carpark as shown in Option 1 can work with or without a turntable, with the practical impact of turntable failure being on the number of turns required by a vehicle to achieve exit in a forward direction. As a result of their evidence, I was satisfied that a user unfamiliar with a turntable, or with a disability may be able to operate the turntable, which can be operated manually in event of power failure. Furthermore, it is reasonable to expect that the onsite manager could assist in operation and repair of the turntable.

54. The experts also identified insufficient headroom for a larger vehicle at the base of a revised car park ramp, which the experts initially agreed could be made shorter, and steeper, as an alternative to the basement being extended in length to the west which would encroach in the structural root zone of a tree, which I understand is Tree 3 in Exhibit 5.

55. As stated in para 12 of the joint report:

“[The experts] agree that the above improvement rely on shortening the basement ramp. This can be achieved by reducing the length of the top section at 5% gradient from 4.5 to 4.0m in length. [The experts] agree that such a reduction is acceptable for this development, given that the users of the car park will be the building residents, familiar with access conditions. Also the B99 vehicle, from its bumper to the rear wheels, fits within the 4.0m 5% section of the ramp, thus fulfilling the intent of the requirement of AS/NZS 2890.1:2004 for 6.0m long section at 5% gradient and the alternative to lengthening the basement is assumed not to be possible due to the encroachment into the structural root zone (SRZ) of a tree”

56. During their evidence on the first day of the hearing, I noted to the experts that as the Applicant proposed car share vehicles in the basement that would be available to both residents and non-residents, users of the car park ramp would not be limited to building residents. In response, Mr Howie acknowledged he had overlooked that fact and no longer supported the change in the car ramp design.

57. On the second day of the hearing, some days later, the Applicant confirmed to me that the Exhibit O plans had adopted the shorter car park ramp referred to in para 12 of the joint expert report, but had a solution to resolve the head room clearance at the base of the ramp which, if I was otherwise minded to grant consent, could be a matter to document in further amended plans, as could a possible conflict in the slab downturn to accommodate the planter bed to Room 3 which appears to foul the garage door and compromise the head clearance at the base of the ramp.

58. The Applicant submits that in the event the Court is not satisfied by Option 1, I could direct that Option 2 or 3, which rely on mechanical car stackers, be adopted. While some evidence was adduced from the experts on the operation of car stackers, I note that the parties disagreed on the application of Control C36 of the LDCP which provides, in effect, that mechanical parking devices such as turntable and stackers are permitted only where there is no viable alternative to off-street parking.

59. To Mr Howie, the traffic survey completed by the Applicant demonstrates that on-street parking in Henry Street is fully utilised, while Mr Sannikov regards the periods of high demand to be limited, and notes that parking in adjacent streets is within a convenient walking distance. I note public submissions from residents of Henry Street support Mr Howie’s position.

The effect of car share on the development

60. The Respondent submits that the draft agreement (Ex 2, Appendix 2) with GoGet will result in a fundamental conflict between the rights of access for boarding house residents, and those of a GoGet user. Condition 1.1(v) of the draft agreement requires that the owner of the property on which a GoGet vehicle is located will:

“Provide access to common property 24 hours per day, 7 days per week for GoGet members, staff and agents for the purpose of access to the GoGet Bay and the maintenance of the GoGet Bay.”

61. By contrast, the provisions at Section 7.0 of the Plan of Management (Ex 2, Appendix 5) are as follows:

“7. Hours of User of Communal Areas

Indoor Communal Areas: the use of the indoor communal area is permitted between 6.00am and 10.00pm, 7 days a week.

Outdoor Communal Areas: the use of the outdoor communal areas is restricted to between 8.00am and 9.00pm, 7 days a week.”

62. In the words of the Respondent, the conflict in terms of access could result in GoGet users having “run of the place” while boarding house residents are “confined to barracks” at an earlier hour in the evening, whereas the Applicant relies on the presence of a resident, onsite manager to moderate behaviour, who I note may have influence over residents, but not GoGet users.

63. Furthermore, the Respondent contends that a privately owned car share business operating from the basement on the site fundamentally changes the nature of the land use in the application, and may represent a use prohibited in the zone.

64. Mr To objected to the Respondent’s questions of Ms Askin on this point, but as the car share proposal formed an essential element of the application, I considered the question to be relevant and foreseeable to the Applicant. In reply, Ms Askin considers the GoGet vehicles to be an ancillary use to the boarding house development.

65. Nevertheless, the Respondent maintains that the presence of a car share scheme on the site raises questions as to the long term viability of car share as a means of achieving the number of vehicles required on site, and liability of the owner in the event of future failure of the business.

66. The Respondent also submits that for the proposed development to achieve the aims of affordable rental housing, it is necessary to ensure that the accommodation is affordable, and this is best done by way of a covenant that binds the owner for a period, in a manner similar to cl 17 of the ARH SEPP in relation to in-fill affordable housing, and cl 38 of the ARH SEPP in relation to residential flat buildings.

67. In the alternative, Mr To holds that Council is essentially advocating for a change in the ARH SEPP, wishes to impose a form of rent control and the authorities on which the Respondent relies offers no evidence to impose such a condition.

68. The Applicant cites Commissioner O’Neill in Pomering v Hawkesbury City Council [2018] NSWLEC 1146 who held, in essence at [39], and with whom I agree, that the absence of a provision to limit eligibility on the basis of income in boarding house development was not unintentional and instead affordability is achieved through the size and form of development.

Findings

69. The parties submit that if I am minded to grant consent, I should deliver preliminary findings with directions so as to resolve matters in contention that may be documented in further amended plans and be reflected in agreed conditions of consent. In particular, the parties agree those directions relate to whether:

1. it is required to replan Rooms 11-15, and/or the delete Room 14;

2. the turntable shown in Option 1 of the joint expert traffic report should be added, or Option 2 or 3 should be considered further;

3. the Respondent’s preferred position of a deferred commencement condition to allow the Applicant to obtain a stormwater drainage easement for gravitational flow, or the Applicant’s alternative solution contained in Exhibit F is preferred by the Court;

4. security arrangements for both residents and car share users are required, and in what manner.

70. For the reasons that follow, I do not consider that further amended plans are likely to resolve issues that are fundamental and fatal to this application.

71. Of particular relevance to this matter, the parties ask the Court to consider the merits of the car parking provided on the site. The parties are agreed, as I am, that the number of car parking spaces required by cl 29(2)(e)(iia)and (iii) of the ARH SEPP is 11, comprising 10 in total based on a 20-room boarding house, and 1 for each person employed in connection with the development and who is resident on site.

72. The Applicant relies on car share as a means of achieving the car parking required by the ARH SEPP. Council evidently acknowledges the role that car share can play in reducing car dependency, having considered reports on car sharing (Ex 2, Appendix 4), and stipulates at Control C25(c) a numerical equivalent of 5 car spaces for one car share space, and guidance on locating such spaces at Control C26.

73. As in Turner Architects, I am satisfied that car share can provide a reasonable alternative to car ownership, especially in an affordable housing development where costs related to a subscription-based service are met by the owner of the site. However, this case has its own circumstances that are unique and, unlike Turner Architects, the Applicant here proposes that half of all spaces, or two out of four spaces for residents be car share vehicles, when one excludes the dedicated space for the onsite manager, increasing the likelihood that residents who own vehicles may seek parking on Henry Street.

74. I accept the Respondent’s submission that the wording of Control C25 (c) permits one (1) car share space can be provided in lieu of 5 car spaces, but the provision does not state that one car share space can be provided for every 5 car spaces (my emphasis) that would otherwise be required.

75. In the event that 1 of 5 car spaces was a car share vehicle, it would result in a total of nine spaces being provided on the site, and while I accept that the site is well located for light rail and other public transport, for the reasons set out below, I consider the proposed development fails an assessment of the merits of the car parking provided, and the means by which car share users gain access to the site, and safely achieve egress from it.

76. I accept the Applicant’s evidence that GoGet can provide detailed directions on the location and access of a vehicle on its App which may be considered a form of sign posting. However, in my view, a consistent characteristic of the various plans, is a failure to conveniently locate the car share vehicles as required by Control C26 of the LDCP.

77. In particular, access to the GoGet cars in the basement cannot be said to be convenient as it requires a user, who may be a first-time traveller visiting from outside Sydney, to pass through the front gate of the property, which may or may not be secured, then traverse a distance of some 30m down a narrow passage, past two sets of stairs that lead only to resident areas, and not to the car park basement, and passing 7 doorways that provide access directly in to the private space of boarding house residents.

78. No provision has been made for a GoGet user, who may be carrying groceries, furniture or other things, to pass a resident in this narrow passage who may be wheeling a bicycle in the opposite direction, intending to use the lift to return the bicycle to its storage space in the basement.

79. Furthermore, as there is no barrier between the side passage and the communal open space, there appears to be nothing to prevent a GoGet user from imposing themselves, by design or accident, on a space that the residents of the boarding house might reasonably consider to be ‘theirs’, and for this to occur at any time of the day or night given the access provisions in the draft agreement with GoGet which requires the owner of the site to provide access to GoGet members on a 24 hours basis, whereas the Plan of Management requires that residents vacate outdoor communal areas by 9pm, and ensure visitors are no longer on site after 10pm. This permits a scenario where GoGet users have ‘free run’ of the place, unconstrained by the complaints procedures and other provisions of the Plan of Management intended to safeguard the amenity of other residents and neighbours, while a resident, who may or may not elect not to be a GoGet member for whatever reason, and their friends and family who may be visiting, have limits imposed.

70. I do not accept the Applicant’s submission that concerns held by the Respondent, and Mr Goodyer in relation to privacy are misplaced. The Applicant holds that as the doors and windows to Rooms 1-6, when closed presumably, do not permit a sightline in to rooms from the passage, and the number of users accessing the car share vehicles may be low, adverse impacts are unlikely to arise. However, these doors and windows face north, and provide cross ventilation to the room only when open. In my view, given the doors open directly on to the passage, without an airlock, screen or other device that could mediate ‘private’ and ‘public’ space, the Applicant has failed to adequately cater for the amenity of either the resident, or the GoGet user, or neighbours for that matter. In this respect, I do not consider the location of the vehicles, and the means of accessing them achieves objective O12 of the LDCP which seeks, in its first element, a high level of residential amenity for the site and to protect existing residential amenity of adjoining sites.

71. Finally, the design of the car park ramp as proposed by the traffic experts, and adopted in Exhibit O plans, appears to be in conflict with the Applicant’s own submission that the GoGet car share scheme will succeed precisely because members who are not resident on the site will use the scheme (Ex 2, para 58).

72. As I understand the GoGet scheme, GoGet members who could be staying in the area temporarily and perhaps for the first time are able to access the vehicles in the basement.

73. However, the traffic experts redesigned the ramp to be shorter and steeper “given that the users of the car park will be building residents, familiar with access conditions” (Ex 5, para 12). In response to my query on the conflict inherent in this assumption, Mr Howie accepted in his oral evidence that he had not considered GoGet users may be unfamiliar with the site and withdrew his support for the shorter, steeper ramp on that basis.

74. As I understand their evidence, the car park ramp as amended by the traffic experts reduces the effective length of that portion of the ramp at the top where the ramp meets the public footpath to Henry Street, where cars and pedestrians may come in to contact. Where a driver is familiar with the shortened ramp, additional caution may be exercised at the top to avoid conflict with a pedestrian. Where a driver is not familiar, there is a greater chance of conflict occurring, which is in my view, inconsistent with objective O12 of the LDCP which seeks, in its second element, to enable the safe, convenient and efficient movement of vehicles, pedestrians and cyclists.

75. Furthermore, the car park ramp rises over the bicycle store which appears of insufficient height to be usable for that purpose, being between 1200mm – 1650mm high, so cannot be said to satisfy Objective O2 of the LDCP which states, in effect that the needs of cyclists should be prioritised over those of the car. The same ramp also fails to provide acceptable head height in a path of travel to and from the bin store.

76. The parties invite me to deliver preliminary findings, and to make certain directions to allow the application to be further amended. In the event I find that the number of car parking spaces is deficient, the Applicant relies on Options 2 and 3 of the joint expert traffic report on which the Court was not addressed, but which provides additional car parking spaces. However, I note that all of the options developed by the traffic experts falls short of the non-refusal standard in cl 29 of the ARH SEPP, and all rely on the access arrangements described above and adopt the shorter, steeper car park ramp which no longer has the unanimous support of the experts who designed it in the first place.

77. As the current proposal, and the alternatives found in Options 2 and 3 of the joint traffic expert report, do not engage the non-refusal provisions of the SEPP and appear inconsistent with certain provisions of the LDCP relating to Parking, I do not consider that reasonable alternative solutions are evident in the application, or likely to arise in an amended application that is likely to achieve the objects of those standards with which the application is at odds. For this reason, I do not consider the grounds on which s 4.15 of the EPA Act permits the Court to apply the provisions of the LDCP in a flexible manner to be satisfied.

78. The orders of the Court are as follows:

1. The Applicant is granted leave to rely on amended plans contained in Exhibit O.

2. The appeal is dismissed.

3. Development consent for Development Application D/2018/190 for the demolition of existing structures and erection of a three storey boarding house building comprising 20 rooms with basement car park and associated works is refused.

4. The Exhibits are returned, except for Exhibits A, E and O.

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T Horton

Commissioner of the Court

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Decision last updated: 27 September 2019