Luo v City of Parramatta Council

[2023] NSWLEC 1009

Land and Environment Court

New South Wales

Medium Neutral Citation:

Luo v City of Parramatta Council [2023] NSWLEC 1009

Hearing dates:

23-24 June 2022; 26 October 2022

Date of orders:

11 January 2023

Decision date:

11 January 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

See directions at [49].

Catchwords:

APPEAL – development application – boarding house development – sufficiency of onsite parking – exercise of discretion to approve a fewer number of car spaces

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 3, Sch 1, cl 2A(1)

Parramatta Local Environmental Plan 2011, cll 6.12, 8.1

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A

State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97

Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Fei Luo (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2021/360939

Judgment

Introduction

1. The applicant, Mr Fei Luo has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of his development application (DA/255/2021) (DA). The DA seeks consent for the demolition of the existing structures and the construction of a four-storey boarding house comprising 25 rooms, one manger’s room and basement parking on land at 35 Simpson Street, Dundas Valley (site).

2. The DA was made under the now repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and seeks to rely upon the provisions of Div 3 which relates to boarding houses. The Environmental Impact Statement filed with the DA states that the development is specifically aimed at providing accommodation for nearby university and hospital campuses.

3. The Council’s Amended Statement of Facts and Contentions (ASOFAC) acknowledges the original contentions between the parties have been largely resolved by the incorporation of the design changes recommended by the parties’ urban design experts and the provision of supplementary reports and missing information.

4. The applicant has also now filed a Satisfactory Arrangements Certificate from the Secretary of the Department of Planning, Industry and Environment (DPIE) which provides me with the power to determine this DA.

The single issue in the appeal

5. The single remaining issue is the acceptability of the development in circumstances where the parking arrangement does not comply with the parking provisions in cl 29(2)(e)(iia) and(iii) of the ARH SEPP or the provisions of the Council’s Telopea Precinct Development Control Plan which are in Part 4 of the Parramatta Development Control Plan 2011 (DCP).

Parking

6. The issue of parking as particularised in Contention 10 of the ASOFAC was addressed in a joint traffic report prepared by Paul Corbett (applicant) and Sandy Leung (Council) (Ex 7).

“10. Traffic Impact

The Amended Development Application should be refused because the Proposed Development fails to provide sufficient parking.

Particulars

(a) Under clause 30(h) of SEPP ARH, a consent authority must not grant consent to a Development Application unless there is one parking space for a bicycle and one space for a motorcycle for every five boarding rooms.

(b) Under clause 29(2)(e)(iia) and (iii) of SEPP ARH, a consent authority cannot refuse to grant consent to the Development Application on the basis of insufficient parking if at least 0.5 parking spaces are provided for each boarding room and not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site.

(c) The Proposed Development contains 25 boarding rooms and one room for a manager, and requires:

(i) At least six bicycle parking spaces are required under clause 30(h);

(ii) At least six motorcycle parking spaces are required under clause 30(h);

(iii) The development cannot be refused on the grounds of parking if at least fourteen parking spaces are provided under clause 29(2)(e)(iia), and no more than one space is provided for the manager under clause 29(2)(e)(iii)

(d) The Proposed Development provides four parking spaces of which one is accessible for all occupants of the boarding house including the Manager, five bicycle spaces, five motorcycle spaces.

(e) As a result, there is insufficient bicycle parking (by one space) and motorcycle parking (by one space) to meet the standard in clause 30(h) of the SEPP ARH.

(f) There are also significantly less car parking spaces than the number identified in clause 29(2)(e)(iia) of the SEPP ARH, meaning the consent authority may refuse to grant consent on the basis of insufficient car parking.

(g) Table 4.3.9.2 of PDCP 2011 provides that affordable housing development should provide minimum car parking as per the relevant state environmental planning policy, which in the circumstances is the figure identified in clause 29(2)(e)(iii).

(h) The non-compliance with the car parking numbers will result in an increased demand on on-street parking in Simpson Street and adversely impact on parking availability in the surrounding area. In addition, Simpson Street is narrow and the on-street parking will impact on traffic flow along Simpson Street.

(i) The traffic report which forms part of the Amended Development Application does not provide a rational basis for a claim that the Proposed Development will provide sufficient parking as:

(i) The reliance upon car ownership summarised in the Survey of Recent Boarding House Developments in Central and Southern Sydney (June 2019) does not provide sufficient information regarding the boarding houses surveyed to support an argument by analogy to the Site and the Proposed Development;

(ii) The location of the Site, including the distance to the future Telopea light rail stop and the steep grades on Sturt and Shortland Street, the distance to the nearest shopping centre, and the unrestricted on-street parking on Simpson Street and surrounding local streets, mean car sharing is unlikely to reduce parking car ownership and dependence.

(iii) 81 Boundary Street, Granville, is not comparable to the Site.

(iv) The parking survey was not undertaken using a valid data collection method for parking studies, as set out in the Austroads Guide to Traffic Management Part 3 - Transport Study and Analysis Methods.”

7. The traffic report considered the amended design (amended plans) against the provisions of the ARH SEPP and the provisions of the Council’s DCP having regard to the Australian/New Zealand Standard AS/NZS 2890.1:2004 Parking facilities – Off-street car parking (AS 2890.1) and the other information listed in par 7.

8. At pars 8-10, the report records the experts’ agreement that under cl 30(h) of the ARH SEPP a consent authority must not grant consent to this application for a boarding house unless there is one parking space for a bicycle and one space for a motorcycle for every five boarding rooms. Furthermore, that under cl 29(2)(e)(iia) and (iii) of the SEPP that a consent authority cannot refuse to grant consent to an application on the basis of insufficient parking if at least 0.5 parking spaces are provided for each boarding room and not more than one parking space is provided for each person employed in connection with the development and who is resident on site.

9. In this instance, the experts are agreed that under the ARH SEPP, a 25-boarding room boarding house development needs to provide:

• Five bicycle parking spaces,

• Five motorcycle parking spaces, and

• 13 car parking spaces (12.5 spaces rounded up) for residents and either nil or one car parking pace for the onsite manager under the SEPP.

10. Therefore, a minimum of 13 car spaces needs to be provided to satisfy the “cannot refuse” provision of the ARH SEPP.

11. The application as originally filed provided four onsite car parking spaces for occupants of the boarding house including the manager, of which one is an accessible parking space, and five bicycle and five motorcycle spaces. The provision of five bicycle and five motorcycle spaces, as reflected on the amended plans, clearly complies with the ARH SEPP. Whereas, the identified four onsite car spaces within the basement as shown on the amended plans, being less than the number identified in cl 29(2)(e)(iia) and (iii) of the ARH SEPP enlivens the Court’s discretion to refuse the development application on the basis of insufficient car parking.

12. It is accepted given site constraints that the proposed boarding house cannot achieve any more than four car spaces onsite. Additional basement parking levels with a conventional vehicle ramp system, which would otherwise allow for additional car parking to be provided, cannot be accommodated due to the narrow width of the site and the location of the sewer and the requirement to provide deep soil zones along the side boundaries. And, while the use of a car lift instead of a conventional ramp system would theoretically allow for multiple basement parking levels, the site does not have a sufficient setback to accommodate a 6m passing bay and car lifts are not supported by the Council.

Mr Corbett

13. At the hearing, Mr Corbett suggested the provision of one GoGet share car space along the site frontage (albeit he accepted that this space had not been illustrated on the architectural drawings). Whilst this revised parking arrangement of five car spaces, including four onsite car spaces and one on-street car share space, still leaves a shortfall of car spaces for the “do not refuse level”, he argued on that basis of other Court decisions that a car share space can compensate for between 3-6 vehicles. When that arrangement was criticised by Ms Leung on many levels - including the removal of a public car space, Mr Corbett suggested that the GoGet space could be relocated in the basement of the development and replace one of the four onsite spaces. This alternative was also rejected by Ms Leung for being entirely impractical because any member of GoGet is entitled to use a GoGet vehicle, therefore such a vehicle could not be restricted to the use of the residents. Finally, Mr Corbett suggested a share vehicle owned and maintained by the owner of the development and managed for the use of the lodgers through a booking system as outlined in the plan of management (POM). This final option was reflected in a condition drafted by the applicant which I will deal with shortly but later.

14. In supporting the limited onsite parking, Mr Corbett focused on the provisions in the Telopea Precinct DCP for sustainable parking and the Council’s strategic goal of increasing sustainable transport in the local area by car sharing, cycling and the use of public transport. In particular, he referred the Court to the DCP’s acknowledgment that new developments could provide opportunities to support and encourage the use of car sharing to support the reduction of car trips and encourage the use of sustainable transport. By providing reduced levels of car parking onsite and thereby encouraging a shift to sustainable transport modes through a car sharing scheme, bicycles and motorcycles, Mr Corbett described the proposal as consistent with the Council’s strategic plan and the objectives of the DCP.

15. Referring to his sketch at Annexure B of the joint report, Mr Corbett identified that the development had opportunity to provide additional bicycle and motorcycle spaces onsite over and above the ARH SEPP requirements namely: 12 bicycle spaces instead of five and seven motorcycle spaces instead of five. Moreover, he is of the view that the provision of additional onsite bicycle and motorcycle spaces will further encourage the use of the alternative transport modes at the development – modes that could be outlined in a Green Travel Plan document as a condition of consent. Accepting that the site has good existing access to active travel paths, such as the existing walking and cycling ways on the road paths provided along both Evans Road and Shortland Street – which provide access to the existing shops and the future mixed use “Core development and Future Telopea Light Rail Stop”, Mr Corbett believed that many of the residents would walk and use bicycles in place of cars of access employment and the local shops. In giving that evidence Mr Corbett acknowledged that some of the existing active pathways had a “moderate” level of difficulty in terms of gradient, but said that they were “not steep” grades as per TfNSW Cycleway Finder classification and in his assessment easily manageable.

16. In respect to public transport, Mr Corbett pointed out that the site is 200m walking distance to two bus stops on Evans Road, which are serviced by the 545 bus every hour between 6am and 9pm Monday to Friday and 8am to 6pm Saturday and Sundays. In that context the site can be defined as being within an accessible area as per the ARH SEPP. He also pointed out the future light rail will be 950m walking distance from the site. He noted that Stage 1 of this light rail is to provide a new light rail service from Carlingford to Westmead via Camellia, Paramatta CBD and North Parramatta; and that while he said it had not been finally determined, the Stage 1 connection is expected to be through Rydalmere and provide connections to nearby Carter Street.

17. More locally, he described the site as a convenient 450m walk to the Waratah local shops which accommodate a choice of services including a supermarket, pharmacy, medical centre, and takeaway food and beverage outlet. On that basis Mr Corbett gave evidence that the site had excellent access to a range of employment opportunities and services without the need for a car.

18. Whilst not strictly applicable to the development, Mr Corbett suggested that the Court should give weight to the car parking provisions in Part 3 of the DCP which relate to boarding house parking for sites in the Paramatta LGA. A parking rate that applies to boarding houses located throughout Paramatta LGA (apart from Telopea Precinct) and that requires no consideration of access to public, sustainable or active transport services. That rate is significantly less than the ARH SEPP - being one space per 10 boarding rooms; plus one space per resident manager/caretaker and one space for any vehicle operated by the facility, and - if it were applied - the proposal would be compliant at four car parking spaces.

19. Mr Corbett also pointed out that the parking rate under State Environmental Planning Policy (Housing) 2021 (2021 SEPP), whilst not directly applicable to this DA is still a relevant consideration because the site is within a defined “accessible area” under both the ARH SEPP and 2021 SEPP. Under the reduced rate of the 2021 SEPP, the proposed 25-room boarding house would only require five car spaces under the “cannot refuse” provision. Again, the development would be close to compliant at four spaces and compliant with a car share space. In discussing the survey of car dependency across the SSROC region and the Court’s finding in the case of Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186 that a car share vehicle can replace 10-12 private cars, Mr Corbett endorsed the use of a GoGet car share being available for the lodgers either parked on the street or onsite.

20. Based on his parking survey results Mr Corbett said that the on-street parking demand in the vicinity of the site was currently low (albeit he conceded that the demand for on-street parking may increase with the higher density controls in the Telopea Precinct). Further, he suggested that on-street parking could be protected for the residents by denying the lodgers of development access to any future resident parking scheme should the Council impose one on Simpson Street and surrounding streets.

21. Despite giving evidence about the opportunity for the development to incorporate a car share scheme, and more bicycle and motorcycle spaces than required by the ARH SEPP, ultimately Mr Corbett’s evidence was that the provision of four onsite car paces was adequate for this development given its accessible location having regard to the relevant planning framework.

Ms Leung

22. Ms Leung gave evidence that the only relevant SEPP for assessment purposes in this case is the ARH SEPP because the DA was lodged under that Policy. She considers the 2021 SEPP totally irrelevant. Ms Leung also expressed the view that the use of the car parking controls for boarding houses under Part 3 of the DCP was inappropriate because the DA was lodged after the adoption of Section 4.3.9 Telopea Precinct of the DCP and that is the applicable DCP.

23. Ms Leung also considers unhelpful the Benefit-Cost Analysis of the Car Share Scheme within the City of Sydney prepared by SGS Economics and relied upon by Mr Corbett because it focuses on an LGA which is considerably different to Paramatta. She also said that any reliance on the recently approved boarding house in Boundary Street, Granville (proximate to major public transport and the Parramatta CBD and within 500m to Harris Park Station) is in an entirely different context and not a relevant comparison to support a reduced car parking rate for this proposal. Furthermore, Ms Leung does not consider the site to be proximate to an employment hub or within walkable distance to a major supermarket. She believes the steep grades of Evans Road, Shortland and Sturt Streets will not be a comfortable walking or cycling distance to the proposed Telopea Light Rail; and that it is unlikely that the local shops some 450m walking distance from the site will cater for the needs of the proposed boarding house residents.

24. For all those reasons Ms Leung has assessed that the development is likely to increase private car ownership and dependency rather than reduce it. And, while she accepts that car share schemes work well in locations where there is high on-street parking demand and limited on-street parking, she distinguished Simpson Street and the surrounding streets because they have unrestricted parking and low demand (based on the PDC Consultants email dated 8 June 2022). Accepting the level of existing available on-street parking and the other factors (as summarised), Ms Leung was firm in her expert assessment that the residents of this boarding house will own cars and park on the street and, thereby, adversely impact the existing parking amenity of the area. Moreover, Ms Leung believes it is highly unlikely that the provision of a car share space onsite (as one of the four spaces) or on the street at this location will reduce private car ownership and dependency; nor that the provision of additional bicycle and motorcycle spaces will reduce private car ownership and dependency.

25. In support of her position, Ms Leung referred me to the latest ABS census statistics (released on 30 June 2021) which record that on 31 January 2021 motorcycle licences made up only 4.6% of all vehicle licences in NSW in comparison to passenger vehicles at 74.8%. In her evidence, she suggests such data points to not all residents of this boarding house will be comfortable using motorcycles as a form of transport particularly when a “moderate” grade road requires a confident rider, and there is no evidence to suggest that the residents of the boarding house will have the requisite confidence.

26. Finally, Ms Leung pointed out that Simpson Street is narrow – (only 7.24m wide at the frontage of the site); and, if vehicles were to be parked on both sides of the road only one vehicle would be able to pass at any time. With insufficient parking onsite and an increase in vehicle movements from this development (together with other developments in the street), Ms Leung gave evidence that an approval of this DA will generate adverse impacts on traffic flow and cause queuing into other streets. She emphasised that there is presently no restricted parking along Simpson Street and the Council has no plan to impose this nor any way of enforcing a prohibition on boarding house occupants from obtaining a resident parking permit if such a plan were in place.

22. For all those reasons Ms Leung believes the development should be refused on the basis of a shortfall of onsite parking.

Consideration and finding on parking

28. As stated at the outset of my judgment the adequacy of the proposed car parking provision is the real issue in this case.

29. The starting point for the assessment of the parking for this development, as Ms Leung points out, is the ARH SEPP. This is the relevant State policy for this application because the DA was lodged under that Policy, and as the DA has not been determined by reason of s 2(1)(a) of Sch 7A of the 2021 SEPP, the application is saved by the general savings provision and the repealed ARH SEPP applies: CK Design Pty Ltd v Penrith City Council(No 2) [2022] NSWLEC 97.

30. That said, in applying the provisions of the applicable ARH SEPP in this case a discretion remains to approve a fewer number of car spaces and grant consent to the application.

31. The parties submit that in the exercise of my discretion the current 2021 SEPP is not a relevant consideration. However, I do not agree. Naturally, any directly applicable commands of the ARH SEPP must be complied with. Notwithstanding this does not require the Court to have no regard to matters external to it if otherwise applicable according to s 4.15 of the EPA Act. In informing my discretion as part of the public interest I am entitled to have regard to the fact that on a “do not refuse basis” the car parking requirement under the current 2021 SEPP would be five car spaces - a substantially smaller number of car spaces than the 13 car spaces under the applicable Policy (Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289). Whilst in the exercise of my discretion the standard in the 2021 SEPP cannot be given determinative weight, after a consideration of all the evidence it nevertheless lends support to the conclusion that this DA should be approved with fewer onsite spaces than the ARH SEPP provides for on a “do not refuse basis”.

32. At the end of the case the applicant elected to pursue the option of providing four car spaces onsite with one being a privately owned share car space. The detail of the parking arrangement for the share space is set out in Annexure A to the POM. It deals with induction, car booking, cost, insurance of the vehicle, location and tracking - matters of management. To facilitate this the application proposes the inclusion of a condition of consent in respect of the arrangement.

33. The Council rejects the applicant’s proposed private share car arrangement and condition, and, for the reason outlined by Ms Leung as summarised above, so do I. While the DCP encourages car sharing in developments of 50 people or more either onsite or on the street, the evidence does not support a share car scheme in this proposal. Ultimately, I am persuaded by Mr Corbett’s evidence that the four onsite car spaces are adequate for the development. In forming that view I accept his assessment that the site has excellent access to an array of employment opportunities and services without the need for a car. In that regard I note the existing public transport proximate to the site and existing walkways and cycleways to the local shops, bus stops and rail. The site is, in my opinion, within an area that could be described as accessible.

The objectors’ evidence

34. This DA is the first application within the Telopea Precinct seeking to benefit from new controls, which came into effect when an amendment to the Parramatta Local Environmental Plan 2011 (LEP) was gazetted in December 2018, which allowed increased density and heights on the site. And because the land opposite the site on the eastern side of Simpson Street is outside the Telopea Precinct and generally zoned R3 Medium Density Residential the development site marks a zone interface.

35. As I observed at the site view at the commencement of the hearing, the opposite side of Simpson Street has been developed in part with medium density residential development. It is fair to say that the whole area is in a state of transition. Understandably, many of the objectors who raised concerns with the proposal expressed strong objection to the inclusion of the site in an intensive urban development precinct. Every DA must be assessed in the context of the current planning controls. In this instance the controls reflect the Council’s strategic planning for inclusion of this site and this side of Simpson Steet in a precinct earmarked for intensive urban development. Also relevant is the endorsement of the Secretary of DPIE that there are satisfactory arrangements for the provision of designated State public infrastructure to accommodate the proposed development (cl 8.1 of the LEP).

36. The agreed expert evidence is that the development is compliant with all relevant standards except onsite parking, which I have dealt with. The following jurisdictional matters are satisfied.

Jurisdictional preconditions to the grant of consent

BASIX certificate

37. Clause 2A(1) of Sch 1 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application for any BASIX-affected development to be accompanied by a BAISX certificate for the development.

38. The proposed development is a BASIX-affected development as defined in cl 3(1) of the EPA Regulation and a BASIX certificate (BASIX Certificate No.1117765M_04) has been provided for the amended DA.

Character of the local area

39. Before granting consent to the proposed development, as mandated by cl 30A of the ARH SEPP the Court must take into consideration whether the design of the development is compatible with the character of the local area.

40. During the site view I had opportunity to observe the character of the local area. It includes a range of low-density building types and heights of varying ages and is comprised of a mixture of two storeys and dual occupancy development. A large public open space area is located to the east of the site. The character is best described as being in a state of transition from a R2 low density residential environment to a R4 higher density residential environment.

41. This DA is the first under the new higher density Telopea Precinct controls. Therefore, the compatibility of the development with the character of the area under the existing higher density controls development allowed for in the R3 and R4 zones is a relevant factor. That said, when I consider the design of the development with the existing character of the local area, I am satisfied that it is compatible. The most recent amendments to the design, as recommended by the urban design experts in their joint report, have reduced the bulk and scale of the original development by recessing the top floor and providing for a brick rather than a render base to present as a two-storey element on the street. The proposed setback and articulation of the building through the use of different finishes and the incorporation of detailed landscaping particularly deep soil landscaping at the rear of the site and eastern boundary reflects the character of the surrounding properties.

42. The amended design now complies with all relevant standards in respect of building height and floor space noting that the urban design experts in their report address the provisions of cl 6.12 in respect of design excellence which arises because the site is mapped in subcl (2) in the Telopea Precinct. I have considered their assessment and accept their expert evidence.

43. Clause 29 of the ARH SEPP prescribes standards that cannot be used to refuse consent where they are met. In this instance, the building height at 12.295m, the landscape area, solar access and private open space are met.

44. Under the LEP, the site is subject to a maximum floor space ratio (FSR) of 1.1:1. However, cl 29(1)(c) of the ARH SEPP stipulates that the maximum FSR applicable to the site is 1.6:1. In this instance, the provisions of the SEPP prevail over the provisions of the LEP. Therefore, the maximum FSR control relevant to this case is 1.6:1. The development provides for a total floor area of 889m² or 1.36:1 and as such complies with the requirements of cl 29(1)(c) of ARH SEPP.

45. Clause 30 of the ARH SEPP also contains standards, and the planning and urban design evidence is that the development complies with those standards.

46. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 applies to the site and contamination has been considered and dealt within the conditions.

Acoustic impacts

47. A supplementary acoustic report and the amended plans have addressed acoustic treatment of walls on the boundaries to protect adjoining properties’ amenity and coupled with the imposition of the Council’s conditions there is no longer any issue in respect of this matter.

Conclusion

48. For all those reasons I have decided to grant a development consent to the application on a conditional basis. Before those orders can be made the agreed draft conditions forwarded to the Court on 26 October 2022 and POM need to be amended to reflect my reasons for judgment. To that end I make the following directions.

Directions

49. The parties are to confer within 14 days and amend the Plan of Management and the draft conditions of consent to reflect my reasons for judgment. Following settlement of those documents, they are to be filed with the Court. After review if I am content that they reflect my reasons for judgment I will make final orders approving the development on a conditional basis.

……………………………

S Dixon

Senior Commissioner of the Court

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Decision last updated: 11 January 2023