New Living Shoalhaven Pty Ltd v Shoalhaven City Council

[2021] NSWLEC 1765

Land and Environment Court

New South Wales

Medium Neutral Citation:

New Living Shoalhaven Pty Ltd v Shoalhaven City Council [2021] NSWLEC 1765

Hearing dates:

2-3 December 2021

Date of orders:

13 December 2021

Decision date:

13 December 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. 20/1349 to convert an existing dwelling and attached secondary dwelling into a boarding house containing six boarding rooms is refused.

(3) The exhibits, other than Exhibits 2, A and B, are returned.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – compatibility with local character – internal amenity

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

Shoalhaven Local Environmental Plan 2014, cl 7.20

State Environmental Planning Policy (Affordable Rental Housing) 2009 Pt 2, Div 3, cll 26, 27, 28, 29, 30, 30A

Texts Cited:

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

New Living Shoalhaven Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
Jacinta Reid (Applicant)
Adam Seton (Solicitor) (Respondent)

Solicitors:
PDC Lawyers (Applicant)
Marsdens Lawyers (Respondent)

File Number(s):

2021/70849

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 20/1349 to convert an existing dwelling and attached secondary dwelling into a boarding house containing a total of six single boarding rooms (including one accessible room), a communal living area, a double garage and one accessible parking space in the front setback, two motorbike parking spaces, and associated landscaping works (the proposal) at 4 Sand Drift Way, Vincentia (the site) by Shoalhaven City Council (the Council).

2. The appeal was subject to conciliation on 27 August 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was unopposed and granted to the applicant to amend the application to rely on amended plans identified as Revision I (Ex A) and amended parking plan showing grades (Ex B). The applicant submitted that the amended plans were uploaded on the NSW planning portal, as required by the terms of cl 55 of the Environmental Planning and Assessment Regulation 2000, on 2 December 2021. A BASIX certificate was admitted into evidence as Ex E.

Issues

4. The Council’s contentions can be summarised as:

• The proposal is not compatible with the existing or desired future character of the local area;

• The landscaping treatment within the front setback is inadequate and incompatible with the streetscape;

• The proposal would result in poor amenity for future residents;

• The proposal is not in the public interest and would result in an undesirable planning precedent.

The site and its context

5. The site is legally described as Lot 1432 DP 1231370. The site is an irregular trapezoidal shaped allotment, with a 18.84m frontage to the street, and a total site area of 600m². The site is on the western side of the street, to the south of the intersection with Bayswood Avenue. The site slopes gently from south-west to north-east. The site is within the Stage 14 Bayswood Estate subdivision.

6. The site contains an existing dwelling and attached secondary dwelling.

7. The surrounding dwellings are generally single storey, with driveways accessing attached double garages, patios and landscaping and paving within front setbacks.

8. The site is part of the Bayswood Estate and there are restrictions on the use of the site which include that dwellings must be erected using materials, colours and finishes and landscaping that is consistent with the document, “Design Essentials for Bayswood” (Ex 5).

Planning framework

9. The site is zoned R2 Low Density Residential pursuant to the Shoalhaven Local Environmental Plan 2014 (LEP 2014). The relevant objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To provide an environment primarily for detached housing and to ensure that other development is compatible with that environment.

10. Clause 7.20 of LEP 2014 apples to the site, at subcl (2).

11. The application is made pursuant to Pt 2, Div 3 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). SEPP ARH applies to the site at cl 26 and to the proposed development at cl 27.

12. The site is within 400m walking distance of land zoned for business use, as required under cl 27(3) of SEPP ARH. The proposal is permissible with consent, at cl 28.

13. The consent authority, or the Court exercising the functions of the consent authority, must not refuse consent to a development to which Pt 2, Div 3 of SEPP ARH applies, on the grounds of landscaped area, if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, at cl 29(2)(b).

14. The parties agreed that the standards for boarding houses, at cl 30 of SEPP ARH, are met by the proposal. The parties agreed that the proposal is consistent with the other standards for boarding houses, at cl 30 of SEPP ARH.

15. A consent authority must not consent to development to which Pt 2, Div 3 of SEPP ARH applies, unless it has taken into consideration whether the design of the development is compatible with the character of the local area, at cl 30A.

16. The site is identified as bushfire prone land (Vegetation Category 1) on the NSW Rural Fire Service map.

17. The Shoalhaven Development Control Plan 2014 (DCP 2014) applies to the site, at Chapter 1, section 3.

18. The minimum landscaped area control for dwelling houses and other low density residential development (excluding boarding houses), at Chapter G12 of DCP 2014, section 6.2.1, A19.1, requires 20% of the total site area to be landscaped with a minimum dimension of 1.2m and, at A19.3, requires 35% of the front setback to be landscaped.

19. Chapter G13 of DCP 2014 includes, at section 8, performance criteria for boarding houses. P35 requires boarding houses to be designed to be compatible with surrounding development and to cater for the amenity of residents.

Public submissions

20. Five resident objectors provided evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• They did not anticipate that a boarding house may be approved near their properties in the Bayswood community;

• The future residents of the proposed development will park their cars in the street;

• The additional parking in the front setback is inconsistent with the established character of the street;

• The proposed development will result in acoustic impacts on the amenity enjoyed by the occupants of neighbouring dwellings; and

• The proposed Plan of Management is inadequate.

Expert evidence

21. The applicant relied on the expert evidence of James Lovell (planning) and Jason Rudd (traffic).

22. The Council relied on the expert evidence of Jeff Mead (planning) and Paul Corbett (traffic).

23. The planning experts prepared a joint report (Ex 6) and the traffic experts prepared a joint report (Ex 7). The planning experts gave concurrent oral evidence.

Evidence

Character

24. The planning experts agreed that the existing development is compatible with the character of the local area, and they agreed that the issue between them in relation to the compatibility of the proposal with the character of the local area is the treatment of the front setback area.

25. According to Mr Mead, the proposed accessible car parking space, in addition to the existing driveway access, is not compatible with the existing or desired future character of the streetscape. The frontages of dwellings in the vicinity of the site have driveways accessed attached garages and landscaping, and they do not include other car parking or parking structures in the front setback. He is concerned that the landscaping in the front setback is reduced by the addition of the car parking space. The proposed landscaping is to screen the additional car parking space. In his view, the addition of a car parking space in the front setback makes the proposal incompatible with the character of the local area.

26. Mr Mead noted that a reduction in the number of boarding rooms to four would reduce the car parking requirement by one space and this would resolve the Council’s contention regarding the incompatibility of the proposal with the character of the local area.

27. The planning experts agreed that the proposal complies with the minimum landscaped area requirement for low density residential development, excluding boarding houses, of 20% for the site area, at Chapter G12, A19.1 table 3 of DCP 2014. In the applicant’s submission, this is evidence that the proposal is compatible with the low density residential character of the street.

Amenity

28. The planning experts agreed that the issue with respect to the internal amenity of the proposal concerns the proximity of the communal room to the entry doors to boarding rooms 2 and 3; and the accessibility of the communal room from the rooms contained in the existing secondary attached dwelling.

29. According to Mr Mead, the spatial layout of the proposal is constrained by the existing layout of the dwelling and so the proposal does not achieve a design-orientated layout that maximises the amenity of the future residents. In Mr Mead’s opinion, the spatial layout would result in poor levels of amenity for future residents, because some rooms are accessed directly from the communal room; and the proposed boarding rooms in the existing attached secondary dwelling have poor access to the communal room, because the future occupants of those rooms would have to walk around the outside of the building to get to the communal room.

30. According to Mr Lovell, the distance of travel between the boarding rooms in the existing attached dwelling to the communal room is less that the distance of travel would be from some rooms to a communal room in a large boarding house.

Findings

Character

31. The front setbacks of dwellings within a low density residential neighbourhood provide a semi-private area that contributes to the character of the street and establishes the low density residential character of an area. The treatment of front setbacks in a low density residential area neighbourhood is important in establishing the shared character of the street.

32. I accept Mr Mead’s evidence in relation to the proposal’s incompatibility with the character of the local area. I agree with Mr Mead that the use of the front setback for car parking, other than the existing driveway accessing the double garage, is contrary to the established low residential character of the local area and occupies a large proportion of the front setback that would otherwise contribute to the setting of the house in the street. The accessible car space within the front setback requires the car to be parked parallel to the street within the front setback, in the foreground of the street-front elevation of the house, and a car parked permanently in this way within the front setback would be an anomaly in the street. It is not sufficient to rely on landscaping to screen the accessible parking space because the car parked in front of the dwelling would be clearly visible. The proposal does not fit in with the established character of the street.

Amenity

33. I accept Mr Mead’s evidence in relation to the internal amenity of the proposal and I agree that the proposal does not achieve a design-orientated layout that maximises the amenity of the future residents. The relationship between boarding rooms 2 and 3 with the communal area is poor due to the proximity of the rooms and the position of doors and the proposed nib walls within the rooms do not sufficiently ameliorate the poor layout; and the boarding rooms within the existing attached secondary dwelling are physically separated from the shared facilities. It is not the distance to the shared facilities that is the issue, it is that the boarding rooms in the existing attached dwelling are treated differently to those in the existing main dwellings which would discourage use of the communal facilities by the boarders occupying the two rooms in the existing attached dwelling. Furthermore, the only access to the smaller boarding room in the existing secondary dwelling is past the glazed doors in the façade of the larger boarding room which would significantly compromise the privacy of the future occupant of that room.

Conclusion

34. The design of the proposed development is not compatible with the character of the local area, pursuant to cl 30A of SEPP ARH, and the application is refused.

35. The layout of the proposed development is compromised and does not sufficiently cater for the amenity of the future occupants.

Orders

36. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 20/1349 to convert an existing dwelling and attached secondary dwelling into a boarding house containing six boarding rooms is refused.

3. The exhibits, other than Exhibits 2, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 13 December 2021