O'Connor v Council of the City of Sydney

[2022] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Connor v Council of the City of Sydney [2022] NSWLEC 1147

Hearing dates:

Conciliation conference on 16 March 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend Development Application No. D/2021/653 and rely upon the amended plans and documents referred to in Condition 1 of the conditions of consent at Annexure A.
(2) The appeal is upheld.
(3) Development Application No. D/2021/653 for alterations and additions to an existing boarding house including new development at the rear of the site comprising new boarding rooms and a garage, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to a boarding house – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s34

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, Sch 6

Sydney Local Environmental Plan 2012, cll 5.10, 6.21, 6.21B, 6.21C

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

State Environmental Planning Policy (Housing) 2021 Sch 7

Category:

Principal judgment

Parties:

John O’Connor (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
V. Conomos (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2021/219975

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. D/2021/653 for alterations and additions to an existing boarding house including new development at the rear of the site comprising new boarding rooms and a garage accessed from the rear laneway (the proposal), at 382 Moore Park Road, Paddington (the site) by the Council of the City of Sydney (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 March 2022. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and cll 5.10(4) and 6.21 of the Sydney Local Environmental Plan 2012 (LEP 2012).

The proposal

5. The proposal is to carry out alterations and addition to the existing two storey terrace house to convert it from a boarding house with 5 double and 4 single boarding rooms; to 6 double boarding rooms and a common room, including a new double boarding room within an attic extension under a skillion dormer facing the rear of the site. The proposal includes a new building at the rear of the site, comprising two single boarding rooms at the ground level, a double room at the first floor level and a garage over accessed from the rear laneway. Each boarding room includes an ensuite bathroom and kitchenette. There is a communal laundry. The proposal will house a maximum of 16 boarders.

Planning framework

6. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application because the application was lodged with the Council on 18 June 2021, the Class 1 appeal was lodged with the Court on 24 August 2021, and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

7. The application is made pursuant to SEPP ARH. SEPP ARH continues to apply to the application pursuant to the savings provision under cl 2(a) of Sch 7 to State Environmental Planning Policy (Housing) 2021. SEPP ARH applies to the site at cl 26(a) and the proposal at cl 27(1).

8. The consent authority must not refuse consent to development to which Pt 2, Div 3 of SEPP ARH applies on the grounds of density or scale if the density and scale of the building when expressed as a floor space ratio (FSR) is the permitted FSR development standard under LEP 2012 of 1.25:1 plus the bonus 0.5:1 FSR for a boarding house on land within a zone in which residential flat buildings are permitted (cl 29(1)(c)(i) of SEPP ARH). The maximum FSR for the site for a boarding house development is 1.75:1 and the proposal has a FSR of 1.28:1.

9. A consent authority must not consent to development to which Pt 2, Div 3 of SEPP ARH applies unless it is satisfied of the following relevant matters under cl 30(1):

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger…

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

10. 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.

11. The site is zoned R1 General Residential pursuant to LEP 2012. The objectives of the R1 zone, to which regard must be had, are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing land use pattern of predominantly residential uses.

12. The site is located within the Paddington South Heritage Conservation Area (C48) (Sch 5 to LEP 2012) (HCA) and is identified as a contributory building. The consent authority must, before granting consent under cl 5.10 of LEP 2012 in respect of a HCA, consider the effect of the proposed development on the heritage significance of the area, pursuant to sub-cl (4).

13. Division 4 Design excellence of LEP 2012 applies to the proposal at cl 6.21B(1). The objective of Div 4 is to deliver the highest standard of architectural, urban and landscape design. Development consent must not be granted to development to which Div 4 applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. The consent authority must have regard to the matters at cl 6.21C(2).

Consideration

14. I accept the Council’s submission that the proposal will have an acceptable impact on the heritage significance of the HCA because the alterations and additions to the existing dwelling are minor, and the rear development does not detract from the contribution made by the existing building to the heritage significance of the HCA. For this reason, I am satisfied that the design of the proposal is compatible with the character of the local area.

15. I accept the Council’s submission that the proposal satisfies the requirements of cl 6.21 of LEP 2012 on the basis of the following analysis:

6.21C Design excellence

The Proposal

(2)  In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters—

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

• The building type is a terrace house which belongs to a row of terraces 378, 380 and 382 Moore Park Road. 

• The building is a contributory building in a conservation area.

• 378 Moore Park Road has an approval for an attic in the roof and a studio/garage to the rear on Leinster Street

• The proposal has a similar roof addition to 378 Moore Park Road. Unlike 378 Moore Park Road, the attic roof addition retains the existing chimney and is setback from the external face of the chimney allowing this element to retain its legibility.

• The proposal has a 3-storey addition to the rear at Leinster Street.  However, only the garage (a single storey) can be viewed from Leinster Street. 

• Single storey garages are the predominant form of development along the southern side of Leinster Street.

• A courtyard is provided between the existing building and the new rear building. This has been achieved by removing a portion of the rear wing.  The northern rear wing wall being located midway between that of 380 and 384 Moore Park Road. 

• A courtyard between the rear wing and the rear building to Leinster Street is a typical pattern of development for terraces along Moore Park Road. 

(b)  whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain

• The form and external appearance of the proposed development is consistent with the conservation area for the reasons outlined above.

(c)  whether the proposed development detrimentally impacts on view corridors

• Not relevant to the proposal

(d)  how the proposed development addresses the following matters—

(i)  the suitability of the land for development

• The land is currently used as a boarding house

(ii)  the existing and proposed uses and use mix,

• The existing and proposed uses are for a boarding house

(iii)  any heritage issues and streetscape constraints,

• The appearance of the development from Moore Park Road and Leinster Street is consistent with existing character of the area

(iv)  the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form

• Not relevant to the proposal

(v)  the bulk, massing and modulation of buildings

• The proposal redistributes the bulk from the rear wing to the rear building on Leinster Street.

• Overall the scale and bulk is commensurate with buildings in the conservation area. 

• In considering the submissions from neighbouring properties, this redistributed bulk can be further ameliorated to No.380 Moore Park Road by the amended drawings that reduce the impact of bulk created by Level 1 in the rear building to No.380 Moore Park Road. The further amendment to the plans, which are the subject of the s.34 agreement, provide for:

(a) The western wall of Level 1 to be reduced in length to be no longer than 7.5m.

(b) The planter to be setback 2m from the western boundary. The planter is then permitted extend to the stair located on the eastern side boundary

(c) Adjoining the western end of the planter a privacy screen 600mm in length, perpendicular to the southern wall of Level 1, to be provided.  The screen that was proposed on the southern edge of the planter to be removed (to reduce bulk)

• The bulk of rear building at the ground floor level is concealed by the existing side walls and fences between the properties. 

• The height of the western side wall/fence to 380 Moore Park Road is to be no higher than existing except where required to meet the BCA fire separation requirements (this is to be kept at a minimum which may require a performance solution).  This is required to maintain the existing height of the side fence between the neighbours.

(vi)  street frontage heights

• There is no change to the street frontage height to Moore Park Road.

• The single storey street frontage height to Leinster Street is consistent with the single storey form along the southern side of Leinster Street

(vii)  environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity

384 Moore Park Road.

• The sun’s eye views for mid-winter show that the courtyard and ground level windows of 384 Moore Park Road is largely self-shadowed by its garage/studio and that of 386 Moore Park Road in the morning.

• Between 10-11am there is solar access to the north facing ground level windows of 384 Moore Park Road

• Between 12 noon-1pm the reduced length of the rear wing on the subject site allows sun to the courtyard

• At 2pm there is sun 1m above the ground level of the courtyard.

380 Moore Park Road

• The sun’s eye views for mid-winter show self- shadowing of the courtyard by the rear fence located on Leinster Street at 9am

• Between 10-11am there is sun to the north facing doors of the rear wing

• At 12noon there is solar access to the courtyard.

• From 1pm the overshadowing is caused by the approved addition to the rear by 378 Moore Park Road.

Visual Privacy

• Visual privacy has been addressed by a combination of privacy screens and offset windows within the development and to neighbours. 

(viii)  the achievement of the principles of ecologically sustainable development

• It is an adaptive reuse of an existing terrace and has satisfied the BASIX requirements for this type of development.

(ix)  pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network

• The proposal now allows access to the development from Leinster Street for pedestrians and servicing.

• There is a new driveway crossing that is in accordance with Council’s requirements for driveway crossings (please check with Public Domain).

(x)  the impact on, and any proposed improvements to, the public domain

• There are no impacts to the public domain.  The external appearance and form of the proposal when viewed from the public domain is typical of development in the conservation area

(xi)  the impact on any special character area

• Not relevant to the Proposal as it is not in a special character area.

(xii)  achieving appropriate interfaces at ground level between the building and the public domain

• Interface to Moore Park Road is unchanged.

• Interface to Leinster Street is similar to the existing garages along the southern side of Leinster Street.

(xiii)  excellence and integration of landscape design.

• Landscaping and advanced tree planting of the site are addressed in the conditions of consent – conditions 23 and 24.

16. I have considered the jurisdiction statement filed by the parties and I am satisfied on the basis of the evidence before me that the terms of the agreement reached between the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

17. The Court notes:

1. That the Council of the City of Sydney, as the relevant consent authority, agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA/2021/653 and rely upon the amended plans and documents referred to in Condition 1 of the conditions of consent at Annexure A.

2. The amended application was lodged on the NSW planning portal on 17 March 2022.

3. The Applicant filed the amended application with the Court on 17 March 2022.

18. The orders of the Court are:

1. The Applicant is granted leave to amend Development Application No. DA/2021/653 and rely upon the amended plans and documents referred to in Condition 1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. D/2021/653 for alterations and additions to an existing boarding house including new development at the rear of the site comprising new boarding rooms and a garage, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (274028, pdf)

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Decision last updated: 24 March 2022