Madss Properties No 2 Pty Ltd ATF Newtown Property Trust v Blacktown City Council

[2019] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:	Madss Properties No 2 Pty Ltd ATF Newtown Property Trust v Blacktown City Council [2019] NSWLEC 1108
Hearing dates:	19 February 2019
Date of orders:	19 March 2019
Decision date:	19 March 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The orders of the Court are: (1) The Applicant is granted leave to amend the development application and rely on the amended plans in Exhibit A. (2) The appeal is dismissed; (3) Development application DA 16-05368, as amended, for the demolition of existing dwellings and structures on the subject land; construction of a 2-storey residential building; 15 boarding rooms; on-site managers room; common room and associated car parking and landscaping is refused (4) The exhibits are returned, except Exhibits A, C and 1.
Catchwords:	APPEAL: boarding house; character of local area; design excellence;
Legislation Cited:	Blacktown Local Environmental Plan 2015 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	‘Supporting new generation boarding houses’, NSW Department of Planning and Environment ‘Explanation of Intended Effect: proposed amendment to the State Environmental Planning Policy (Affordable Rental Housing) 2009’, Department of Planning and Environment The Blacktown Development Control Plan 2015
Category:	Principal judgment
Parties:	Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: P Clay SC (Applicant) A Pearman (Respondent)   Solicitors: Macquarie Lawyers (Applicant) Bartier Perry (Respondent)
File Number(s):	2018/74087
Publication restriction:	No

Judgment

Introduction

1. Madss Properties No 2 Pty Ltd has appealed the Council’s refusal of its application for consent to construct a “new generation” boarding house at 72 Newtown Road, Blacktown (the site). The application, which is made pursuant to Div 3 ‘Boarding houses’ of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP), comprises; demolition of existing dwellings and structures on the subject land; construction of a 2-storey residential building; 16 boarding rooms; on-site managers room; common room and associated car parking and landscaping.

2. Amended plans were filed with the Court on 11 September 2018 that reduced the number of boarding rooms to 15, deleted provision for an on-site manager, and provided a total of eight car parking spaces.

3. The Amended Statement of Facts and Contentions (Ex 1) filed by the Council on 19 October 2018 records the background to the application and the relevant statutory controls. The essential facts are as follows:

The site and its context

4. The site is 739.9 square metres (as stated on DP 16272) and is located on the southern side of Newton Road, at a roundabout intersection with Allawah Street; making this a corner site. As a result, the site addresses two frontages. The primary frontage is to Newtown Road to the north, and there is a secondary frontage to Allawah Street.

5. The site is currently occupied by a modest single-storey dwelling clad in fibre cement, with a pergola and garage. A secondary dwelling has been constructed at the rear of the site with a frontage to Allawah Street. Vehicular access to the site is presently via two, single car-width laybacks and crossovers to Allawah Street.

6. While the existing building may be typical of the historical free standing cottage development built along Newton Road, it is apparent that the existing character of the local area has been undergoing transition for some time. During the site view, the Court was shown a number of existing two-storey, face brick multi-unit developments, and noted that the neighbouring property to the south, and two properties opposite the site on Allawah Street were two-storey face brick homes.

7. St Patrick’s Church and Primary School are in close proximity to the site – being separated from the site by No. 47 and No. 49 Allawah Street, and with separate access points from both Allawah Street, and from Newton Road.

8. The appropriate integration of the proposal with the local character, and of its future residents with the local community, has been a major focus of the evidence and the objections raised by the local residents. As the proposal forms part of both the Newton Road and Allawah Street streetscapes, it is accepted that any new development needs to be compatible with the local character and streetscape.

The contentions

9. The Council’s contentions may be summarised as follows:

1. The design of the development is incompatible with the character of the local area, which fails to satisfy cl 30A of the SEPP.

2. There is insufficient private open space provided, and that the location of the private open space is shown within the front setback, which fails to satisfy cl 29(2)(d)(i) of the SEPP.

3. The location of car parking spaces adjacent to the neighbouring property at No. 47 Allawah Street is unsatisfactory with regard to noise impacts.

4. The proposed development is inconsistent with the objectives of the R2 Low Density Residential Zone contained in the Blacktown Local Environmental Plan 2015 (BLEP).

5. The proposed development fails to satisfy the provisions of cl 7.7 Design Excellence contained in the BLEP.

6. The proposed development is not in the public interest given the number and nature of public submissions resulting from notification.

Planning Framework

10. The site is within the R2 Low Density Residential zone under the BLEP, which permits boarding houses with consent. As the zone objectives are a contention in this matter, they are as follows:

• 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 enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

11. The primary control for this development is the SEPP and there are a number of planning requirements that the application must address.

12. Clause 29(2) of the SEPP provides the grounds on which a consent authority must not refuse consent. The grounds most relevant to this proposal include;

...

(d) private open space

if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

…

(e) parking

if:

…

(iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and ...

13. Clause 30A of the SEPP stipulates that a consent authority must take into consideration whether the design of the development is compatible with the character of the local area. The parties agree this does not mean that the development should appear the same, but rather that the development should be harmonious.

14. The parties also drew the Court’s attention to the proposed amendment to the SEPP, titled ‘Explanation of Intended Effect’ (EIE) and published by the Department of Planning and Environment, dated November 2018. The amendments foreshadowed in the EIE would be directly relevant to the proposal should the amendments be enacted - in that they would have the effect of limiting the number of boarding rooms in the proposed development to a maximum of 12 in an R2 zone.

15. Subsequent to the hearing, the SEPP was amended to incorporate the amendments foreshadowed in the EIE. Relevantly, the savings provisions contained therein provides that an application made before the commencement of the amending SEPP and which was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement must be determined by applying all provisions of the SEPP as if the amending SEPP had not commenced. For this reason, I do not propose to give the EIE any weight in my consideration of this appeal, including in the evaluation of the applicant’s development application.

16. The site is also located within the zone identified as ‘Design Excellence’ on the ‘Design Excellence Map’ within the BLEP. The objectives of the ‘Design Excellence’ provision are found at cl 7.7(1) as follows;

The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Blacktown.

17. Clause 7.7(3) requires that development consent must not be granted to development unless the consent authority considers that the development exhibits design excellence.

18. Clause 7.7(4) provides guidance on the consideration of design excellence by listing matters to which the consent authority must have regard. The parties’ experts addressed these matters initially in a Joint Export Report (Ex 3). Prior to the hearing, the Court invited the parties to more directly address the matters prescribed within cl 7.7(4), resulting in a supplementary Joint Expert Report (Ex 4).

19. The Blacktown Development Control Plan 2015 (BDCP) Pt A - General Guidelines, and Pt C – Development in the Residential Zones are most relevant.

Public submissions

20. A large number of public submissions are found in Exhibit 2, including three petitions containing 146 signatures from nearby residents, parents of children at the St Patrick’s Primary School, and parishioners of St Patrick’s Church. Six objectors gave evidence at the commencement of the hearing onsite, including four residents, a Councillor with Blacktown City Council, and a representative of the Catholic Diocese.

21. A number of the objectors stated that they were concerned about the demographic of the future occupants of the boarding house; particularly in relation to the nearby St Patrick’s Church and Primary School. Objector’s referred to an incident in a boarding house located on Bungarribee Road, requiring the assistance of police.

22. Objector’s submissions can be summarised as follows:

• The proposed development is inappropriate to a private, quiet family-oriented residential area.

• The number of rooms proposed in the development is excessive, resulting in an inappropriate concentration of residents in a low density area.

• The proposed development will have an adverse impact on property values in the area.

23. The Court, in the company of the parties and their experts, viewed the site and an area identified by the experts as constituting the visual catchment and local area. Properties identified for special note during the view included:

• No. 81 Newton Road – a two-storey dual occupancy, corner site development that also presented to Meroo Street.

• No. 82 Newton Road – a two storey multi-unit development with a central driveway servicing vehicular and pedestrian entry into multiple homes.

• No. 42 Balmoral Street – a two storey dual occupancy development presenting as two separate dwellings.

Consideration

24. At the commencement of the hearing, the applicant was granted leave to rely on further amended plans, which were referred to as ‘Revision K plans’ and which are found in Exhibit A. The changes can be summarised as follows:

• Additional landscaping to Allawah Street entry;

• Setback of the central portion of the two-storey form increased by 330mm from the Allawah Street boundary;

• Roof pitch lowered to the central portion of the two-storey form;

• Consequential changes to rooms layout, stairs and the like arising from the above.

25. There is no dispute that the proposed development complies with the provisions of the SEPP cl 29(2) in relation to landscape area, solar access, the number of car parking spaces provided, and accommodation size. Furthermore, the parties also agree that the proposed development complies with the standards for boarding houses set out in cl 30(1) of the SEPP, which are preconditions in relation to which I must be satisfied before consent could be granted to the proposed development.

26. The parties also agree that the proposed development is within the height permitted by the BLEP, and that two-storey development is a common characteristic in the local area.

27. To assist the Court, the parties have relied upon expert evidence from Mr Jonathon Wood, for the applicant (Town Planning and Waste), Mr Glenn Apps, for the respondent (Town Planning), and Ms Peta Golla for the respondent (Waste). Evidence was required from the Town Planning experts whose single joint report is marked Exhibit 3.

Compatibility with the character of the local area

28. The experts identified a zone which they agree should define the visual catchment and local area. The zone, which is found in Exhibit 3, includes both sides of Newton Road, spanning from Meroo Street to the west, to Carinya Street and Kirkman Street to the east. The zone encompasses numerous properties in Allawah Street on either side of Newton Road, and includes the St Patrick’s Church and Primary School.

29. The parties do not agree on whether the form and massing of the proposed development is appropriate or compatible with the character of the local area. The planning experts disagree as to whether the bulk and scale as it presents to the east and west elevation is satisfactory, and whether the proposal is in keeping with the streetscape character of the local area.

30. The respondent submits that the proposal seeks to impose upon the character of the local area a “wall of development” to Allawah Street that is two-storey throughout; is 30m in length and is not seen anywhere else in the agreed visual catchment area. Where two-storey dual occupancy development has been permitted in the past, these developments are characterised by clear space between the built forms that acts to reduce the bulk and scale.

31. The applicant is of the view that the local character must be derived from a wider view of the local area which, to the applicant, is eclectic - comprising dwellings that are both large and small; dual occupancy and multi-unit development; churches and the like. Furthermore, the applicant submits that the area is undergoing transformation – particularly along the northern side of Newton Road which is zoned R4 and where a number of six- and seven–storey apartment buildings are currently under construction.

32. Mr Wood notes that larger contemporary dwellings such as those at No. 56 and No. 64 Allawah Street have been constructed in the last 15 years and adopt a much larger footprint, height and bulk and scale compared to the existing single storey housing stock. By comparison, the site coverage of the proposed development is not significantly increased beyond the existing footprint of the primary and secondary dwelling already erected on the site.

33. According to Mr Wood’s assessment, the physical impacts of the development are acceptable. The building height complies with the maximum height limit; setbacks conform to that which would be required of a similarly sized dual occupancy under the BDCP, and landscaping includes a large pocket in the south-eastern corner of the site which provides a suitable transition to the landscaped front setbacks further to the south along Allawah Street.

34. Mr Wood considers the transformation that is underway in the local area to be relevant to establishing the character of the local area, and is of the view that the desired future character should be given significant weight given the observed change in building forms in the locality. Mr Wood also notes that while no longer a permitted form of development in the R2 zone, the townhouse development at No. 80-82 Newton Road contributes to the existing streetscape character in the vicinity of the site – being only 50m to the west along Newton Road.

35. Mr Apps agrees that the visual catchment will include residential apartment development in the near future, but is of the view that a development of the scale proposed in the application is better suited to an R3 Medium Density Residential zone or as an alternative, a development of a lesser bulk and scale could be proposed.

36. Mr Apps considers the presentation of the proposed development to Allawah Street to be unlike any development that exists, or would likely be proposed in the R2 zone. Furthermore, Mr Apps is of the view that while new single dwellings or dual occupancies may replace existing housing stock in the local area, it is highly unlikely that they would be of such a bulk and scale as that proposed on this site.

Findings

37. I accept that the character of the local area has been in transition for some time. Two-storey dual occupancy development on Newton Road – whether now permissible or not in the R2 zone – is not excised from the local area by virtue of it no longer being permissible. It is there. Put another way, it cannot be unseen. It informs the bulk, height and scale of the character of the local area within the visual catchment agreed by the experts.

38. There is an evident cluster of two-storey developments within close proximity of the site, including No. 80-82 Newton Road, No. 80-81a Newton Road and No. 70 Newton Road. I accept that they contribute to the character within the visual catchment, and all appear to approximate the bulk and scale of the proposed development.

39. Existing two-storey homes to the east of the site on Allawah Street, at No. 70 and No. 52A present large frontages in face brick, with little modulation and minimal landscaping. Large areas of unshaded paving provide for multiple cars to be parked within the Allawah Street setback; directly opposite the paved car parking area in the proposed development.

40. I accept that the design of the proposed development acknowledges the length it presents to Allawah Street by setting back the central portion of the two-storey form, and employing a change in materials and finishes. It is further articulated by a change in roof form which Mr Wood considers will reinforce the visual dominance of the taller volumes to the north and south.

41. I accept and agree with the applicant’s submission that a significant part of the character of the local area lies in the residential nature of development across a range of styles, materials, scales and eras. The proposed development does not depart from the palette found in the local area, of painted finishes and face brick, and it faithfully repeats the pitched hip roof form that is almost universal to the local area.

Private open space

42. The applicant submits that the proposed development provides for two areas of private open space, located within the setback created by the central portion of the plan, which contains at the ground floor, spaces for communal use including the living, dining, kitchen and laundry.

43. The applicant acknowledges that the communal open space to the east, facing Allawah Street, fails the definition of private open space found in cl 29(2)(d)(i) of the SEPP as it is located within what may be regarded as a front setback area. However, the applicant submits that considering the corner nature of the site, sensible practice on activating the street through passive surveillance and the north-easterly aspect, the location is suited to such a use.

44. The experts did not agree on the calculation of the area of open space to the east shown on the amended plans (Ex A). Mr Apps was of the view that the area of open space should include the deck only, and which measures 17.2 square metres. Mr Wood’s calculation included the landscaping to the perimeter of the deck and measures 25.26 square metres.

45. The experts also did not initially agree on the calculation of area for the open space to the west, and shown adjacent to the communal kitchen. However, during the hearing, the applicant agreed to delete the deck shown to the west. As a result of this amendment, the experts agreed that the area complied with the minimum of 20 square metres. However, the respondent submits that, while compliant in area, the private open space for residents would adversely impact the amenity of the neighbour at No. 74 Newton Road whose outdoor barbeque area was adjoining. The applicant proposed that any impact on the neighbouring property be ameliorated by a provision in the Plan of Management requiring the door accessing this area to be locked to prevent use after 6pm.

42. The applicant also agreed that, for the area to the west to function as private open space for the amenity of the residents, would require the removal or modification of windows in Boarding Rooms 04 and 05 which provide outlook from those rooms.

43. During the expert’s evidence, the applicant was granted leave to rely on amended plans showing additional private open space for an on-site boarding house manager, consistent with cl 29(2)(d)(ii) of the SEPP (Ex C). The applicant stated that, while the decision to designate Boarding Room 02 for the use of an on-site manager was not a requirement of cl 30(1)(e) of the SEPP for a boarding house of fewer than 20 residents, it was responsive to public submissions, and it was the right thing to do.

44. Associated with the on-site manager’s room, Exhibit C also provides for private open space within the Newton Road setback. The front boundary fence is shown setback 3500mm to provide additional landscape to the street, and a fence enclosure surrounding an area that contains hard and soft landscaping.

Findings

49. I agree with the applicant that it is acceptable and desirable for the calculation of the area of private open space to include a reasonable allowance for soft landscaping that complements, and does not limit, its intended use. The area to the east, in my view, complies with the numerical requirement in cl 29(2)(d)(i) of the SEPP.

50. Clause 29(2)(d) expressly states that private open space should be provided “(other than the front setback area)”. I accept and agree with the applicant that the front setback area can be considered to be Newton Road, and that Allawah Street may be considered a side setback. While I accept that it may require a broad view of the term ‘private’ for private open space to be located adjacent to a public footpath, I am satisfied that the location of the private open space to the east – and in the vicinity of the street tree which contributes to a sense of enclosure in this location, and with the benefit of associated landscape - is not inconsistent with the SEPP.

51. However in accepting that the Newton Road frontage is a ‘front setback area’ for the purposes of cl 29(2)(d), it follows then that the private open space for the on-site manager is not permitted by the SEPP where it is shown in Exhibit C.

Car parking

52. Car parking for 8 cars and 3 motorbikes is located to the south of the site, which is to the rear setback when viewed from Newton Road. The experts agree that it is the most logical location for car parking, and that vehicular access to Allawah Street is preferable to the busy Newton Road.

53. However the respondent submits that, given the concentration of residents on the site, and the number of cars that must be accommodated as a result, there are likely to be adverse acoustic impacts on the neighbour at No. 47 Allawah Street, and that the application should be accompanied by an acoustic assessment, and possibly acoustic treatment to the boundary.

54. Mr Apps views the car park as analogous to a child care centre which would ordinarily include measures to reduce the impact of noise through acoustic fencing. Mr Wood submits that a combination of the landscape buffer that is 1.9m in width, and the low turnover of parking spaces to be expected when compared with a child care facility is unlikely to create adverse acoustic impacts on the neighbour.

55. The Joint Expert Report contains a floor plan of No. 47 Allawah Street, which indicates that a window on the first floor overlooking the proposed car park is a bedroom window. The plan shows that the window is a secondary window in the room, which is also served by a larger window to the east.

Findings

56. The bedroom at No. 47 Allawah Street does not rely solely on the north facing window overlooking the carpark for ventilation or sunlight, and so it is likely that the occupant can exercise discretion as to the times this window may be open and closed. Furthermore, I accept and agree with the applicant’s expert that steps have been taken to reduce the likely impact of vehicle movements and fumes on neighbours through setback and landscaping.

Zone objectives

57. The experts agree that the first objective found at [10] is the only objective relevant to the proposed development.

58. The Respondent submits that the proposed development should not be considered low density residential development as it is of a bulk, scale and design that is out of keeping with the predominant form of development in the area, and that the subsequent concentration of residents is more in keeping with a higher density of residential living.

59. Mr Apps considers the 2016 census data as indicative of the average household size in the Blacktown area, and suggests the likely number of occupants on the site in the event that a dual occupancy development was proposed would be in the order of 7-10 persons.

60. Mr Wood notes that the zone objectives contemplate a variety of permitted residential land uses, including boarding houses, dual occupancies, dwelling houses, group homes and seniors housing. Further, the Applicant notes that while the zone objectives contemplate uses other than residential uses, the proposed development is for a residential use.

Findings

61. I accept and agree with the Applicant’s submission that the zone objectives provide for a range of uses within a residential zone, and that providing a residential use within the R2 zone is consistent with the zone objectives.

Design Excellence

62. The experts agree that some of the requirements found in cl 7.7 Design Excellence of the BLEP are satisfied. However, it is for the Court, in exercising its function as consent authority on appeal, to be satisfied that the development exhibits design excellence by having regard to all of those matters identified at cl 7.7(4).

63. As stated earlier, the experts initially addressed the criteria set out in cl 7.7(4) in their Joint Expert Report. However, as not all aspects were directly addressed, the experts were invited to provide a supplementary Joint Expert Report in Exhibit 4 to assist the Court, and which formed the basis of their evidence.

64. Clause 7.7(4)(a) requires a consent authority to have regard to:

Whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved.

65. The supplementary Joint Expert Report (Ex 4) records that:

“The planners agree that the architectural design, materials and detailing is appropriate for a boarding house.

The planners also agree that the design, materials and detailing is typical of a contemporary style of residential development that one would expect to see in the local area as a result of a development of a lot.”

66. To paraphrase the evidence before the Court, the experts agree that the design, materials and detailing is typical (my emphasis) of a contemporary development that one would expect to see as a result of redevelopment in the area. I now consider whether the evidence before the Court in relation to cl 7.7(4)(a) is sufficient to satisfy the Court that the development exhibits design excellence, pursuant to cl 7.7(3).

67. The Applicant submits that the ‘high standard’ required by cl 7.7(4)(a) must be read in context with the qualifying terms that follow: ‘appropriate to the building type and location’. The Applicant proposes that the ‘high standard’ may be influenced by whether a subject site was located on, or distant from, a main road, for example. Mr Wood made the distinction that the ‘high standard’ to which the BLEP referred should not be held to the same standard as in “the eastern suburbs”, but that is appropriate to the Blacktown area. In short, the Applicant submits that the ‘high standard’ referred to in cl 7.7(4)(a) must consider that the proposed development is a boarding house in the Blacktown area, and located on Newton Road.

68. The experts were again asked whether the proposed development addressed the ‘high standard’ referred to in cl 7.7(4)(a). Mr Apps stated that the proposed development did not meet this test, and that more could be done to meet a high standard of architectural design, including modifications to the roof, and improved articulation of the form through the use of materials. Mr Wood stated that the proposed development did meet the high standard when viewed in the context of being appropriate to a boarding house building type in the area.

69. I note that the Statement of Environmental Effects, contained in the Class 1 application, and prepared by Think Planners Pty Ltd provides a summary of requirements of the BLEP in table form. Reference to the requirements of cl 7.7 of the BLEP asserts that the development complies with the following statement:

“The site is located within the Design Excellence area under the Blacktown Local Environment[al] Plan 2015, and the site is compliant with the requirements, by providing a very attractive building when viewed from both Newton Road and Allawah Street, that does not detract from the existing streetscape.”

Finding

70. Clause 7.7(3) is a precondition to consent. It requires the Court to form an opinion, before granting development consent, as to whether “the proposed development exhibits design excellence”.

71. In my view, it is reasonable to expect that a provision in the BLEP titled Design Excellence seeks excellence in design, which is intended to be understood by reference to the criterion set out in cl 7.7(4). As the previous LEP did not contain a provision related to design excellence, it was not a test formerly imposed on the design of developments in the local area prior to the adoption of the current BLEP in 2015. For this reason, the Court is not assisted by reference to whether the design of the proposed development, in the view of the expert’s, may be typical to development in the area from the period prior to the adoption of the BLEP.

72. The Court was referred to the Design Excellence map contained in the BLEP at Sheet DEX_014 which defines an area in which development must exhibit design excellence, by regard being had to cl 7.7(4)(a)-(f)(i)-(x). It follows then that a development outside of the area illustrated on the Design Excellence map is not required to exhibit design excellence as defined by the BLEP. For this reason, in my view, the Court must be satisfied that the design of the proposed development performs to a higher level than what is typical of a contemporary style of residential development that one would expect to see as a result of a development of a lot, unless it is typical of similar developments within the area described by the Design Excellence map that have also satisfied the criteria set out in cl 7.7(4)(a)-(f)(i)-(x).

Public interest

73. The Respondent submits that the proposed use of the development as a boarding house will result in a concentration of unrelated people residing on the site, which raises the potential for conflict and unacceptable impacts within the boarding house, and in the vicinity of the site.

74. In response to concerns expressed in public submissions, and by the expert’s, on the potential for adverse social impacts resulting from the development, the applicant amended the proposal to include an on-site manager, and now contemplates provisions in the Plan of Management to further address resident concerns on the use of outdoor areas after-hours.

Findings

75. While some public submissions expressed fears and concerns about the operation of the boarding house in their street, there is no objective evidence to suggest that a boarding house development will not fit into the existing character of both Newtown Road and Allawah Street.

76. The Department of Planning Fact Sheet on boarding houses provides advice on who are the intended occupants of a boarding house:

“A boarding house provides a form of low cost rental accommodation for a wide range of tenants including singles, retirees, students and young couples.

…

But does not include backpackers’ accommodation, group homes, serviced apartments, seniors housing or hotel or motel accommodation”

Conclusion

77. Based on the above considerations I have concluded that the Applicant’s proposed development cannot be approved because:

1. The private open space designated for the use of the on-site manager does not meet the requirements of cl 29(2)(d)(ii) of the SEPP

2. The Court cannot be satisfied that the design of the proposed development exhibits design excellence as required by cl 7.7(3) of the BLEP.

Orders

78. The orders of the Court are:

1. The Applicant is granted leave to amend the development application and rely on the amended plans in Exhibit A.

2. The appeal is dismissed;

3. Development application DA 16-05368, as amended, for the demolition of existing dwellings and structures on the subject land; construction of a 2-storey residential building; 15 boarding rooms; on-site managers room; common room and associated car parking and landscaping is refused

4. The exhibits are returned, except Exhibits A, C and 1.

………………………..

T Horton

Commissioner of the Court

**********

Decision last updated: 19 March 2019