Prilis v Inner West Council

[2018] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prilis v Inner West Council [2018] NSWLEC 1227
Hearing dates:	5 April 2018
Date of orders:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) The application to modify the development consent given by the Court on 19 December 2012 in proceedings number 12/11108 by changing the internal layout and modifying the lodger and manager numbers, is granted subject to the conditions in Annexure A. (3) The development consent given by the Court on 19 December 2012 in proceedings number 12/11108 for alterations and additions and the use of premises at 2-4 Shaw Street, Petersham for the purpose of a boarding house is now subject to the consolidated conditions of consent in Annexure B. (4) Exhibits 1, 2, 3, 4 and E are returned.
Catchwords:	APPEAL – modification application – role of the Court in considering a modification application – modification sought change from shared facilities to self-contained boarding rooms – whether substantially the same – whether the change creates additional parking demand – whether a condition limiting occupancy numbers can be modified – relevance of change to contributions plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Prilis v Marrickville Council [2012] NSWLEC 1348 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46
Category:	Principal judgment
Parties:	Anastasios Prilis (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T Howard SC (Applicant) M Bonanno, Solicitor (Respondent)   Solicitors: BCP Lawyers and Consultants (Applicant) Inner West Council (Respondent)
File Number(s):	2017/213304
Publication restriction:	No

Judgment

1. COMMISSIONER: Since the 1920s a two storey federation Queen Anne style mansion has stood on the corner of Shaw and Addison Street in Petersham. It was formerly used by Tresillian, with three other buildings on the site used as wards. In what was seen as a suitable adaptive re-use of the buildings, on 19 December 2012 development consent was granted for the use of the buildings as a boarding house, together with alterations and additions to the buildings to accommodate 39 boarding rooms and 3 managers’ rooms. Of those boarding rooms, 13 relied on communal kitchen facilities and some rooms had a bathroom accessed through a corridor rather than an ensuite. The number of boarders was limited to 52 by a condition imposed on the development consent. Mr Anastasios Prilis now seeks to modify that consent by changing the internal alterations and additions so that every boarding room has its own kitchenette and ensuite. Mr Prilis has appealed against the refusal of that modification application by Inner West Council (“the Council”) on 13 July 2017. The appeal was lodged pursuant to the former s 97AA of the Environmental Planning and Assessment Act 1979 (“the EPA Act”), which has now been replaced by s 8.9.

2. The development consent that is sought to be modified was granted by the Court in December 2012 following an appeal by Mr Prilis against the refusal of the application by the former Marrickville Council. Development consent was granted with the agreement of Marrickville Council and following a hearing on consent orders (see Prilis v Marrickville Council [2012] NSWLEC 1348). Under condition 4 of the consent, a maximum of 52 lodgers and 3 adult managers are permitted to reside at the boarding house. That condition specified the maximum occupancy for each of the 39 boarding rooms to achieve the maximum 52 lodgers.

3. The present modification application, as amended by leave of the Court granted on 24 November 2017, seeks to improve the amenity of the boarding rooms by changing the internal layout to allow each room to have an ensuite and kitchenette. The changes, if permitted, will result in the reduction of one boarding room and one manager’s room. The application also seeks to amend condition 4 of the consent to reflect a maximum of 53 lodgers and 2 adult managers, which is one additional boarding room resident and one less manager than that already the subject of consent.

4. A number of residents expressed their concern about the amenity impacts of the modified proposal. In considering those impacts, it is not my role to reconsider the grant of development consent. For reasons that are outlined below, I can only consider the modification application itself and the potential impacts arising from the proposed modification of the consent.

5. The Council opposes the modification application on four grounds that can be summarised as follows:

• There is no power to grant the modification because the proposed development, as modified by the application, would not be substantially the same as the development for which consent has been granted.

• The proposed development, as modified, is likely to result in additional demand for public amenities and public services for which no contributions can be levied.

• There is insufficient parking to accommodate the additional parking demand created by the change in the nature of the boarding rooms and the additional capacity of the boarding house.

• The proposed limitation on the occupation of each room in condition 4 is arbitrary and therefore not for a proper planning purpose and cannot be imposed.

6. For the reasons set out below, I have determined that the proposed development, as modified, is substantially the same as the development for which consent was granted and that there is therefore power to grant the application. I have also found that there is insufficient evidence to support the Council’s contention that the change to fully self-contained boarding rooms will generate an additional demand for parking. As set out below, I also consider that it is appropriate to limit the occupation in each room in the manner proposed by Mr Prilis and have found that the inability to levy a different or additional contribution is irrelevant. I have therefore determined to grant the modification application as sought.

The site and the locality

7. The site is known as 2-4 Shaw Street, Petersham, and was viewed at a site inspection at the commencement of the hearing. It is a corner allotment located on the north western corner of Shaw Street and Addison Road, Petersham, and comprises three lots identified as Lot 1 DP57514, Lot 1 DP571836 and Lot 2 DP 955354. It includes 4 separate buildings including the principal heritage listed two storey building , 2 single storey buildings to the rear of the main building and a part 1 and 2 storey building to the west of the main building. Work has commenced at the site to carry out the alterations authorised by the grant of development consent, but the occupation of the premises for the purposes of a boarding house in accordance with the consent has not commenced.

8. The surrounding streetscape consists mainly of residential dwellings to the north, south and west, with the Metropolitan Rehabilitation Hospital located to the east on the opposite side of Shaw Street.

The role of the Court on appeal

9. In considering the modification application, it is not my role to re-consider the grant of development consent. Rather, the role of the Court is to re-exercise the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.55(2) of the EPA Act (s 39 of the Land and Environment Court Act 1979). That is, I am required to consider whether the development consent should be modified in the manner sought by Mr Prilis.

10. In outlining the power to modify the consent, s 4.55 provides as follows:

“(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.”

11. Section 4.55(2) confers a broad discretion on a consent authority to modify development consent. However, that discretion only arises if all of the matters in (a) to (d) are satisfied. It is in this context that the question of whether the development as modified is substantially the same development as the development for which consent was originally granted, which is put in issue by the Council, arises.

12. Section 4.55(3) requires that I take into consideration such of the matters under s 4.15(1) as are of relevance to the development the subject of the modification application. Insofar as they are relevant, s 4.15(1)(a) requires consideration of the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. It also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. Section 4.55(3) also requires that I consider the reasons for the grant of consent.

Planning framework

13. The site is zoned R1 General Residential, pursuant to the provisions of the Marrickville Local Environmental Plan 2011 (“MLEP 2011”). The relevant objectives of the zone are:

“• To provide for the housing needs of the community.

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

14. The proposal is subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”). At cl 29 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. In relation to parking, it provides:

“(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

…

(e) parking

if:

(i) in the case of development in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and

(ii) in the case of development not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and

(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site.”

15. The site is in a location that meets the definition of “accessible area”, being located less than 800 metres walking distance of a public entrance to a railway station.

Resident evidence

16. A number of local residents attended the site inspection, gave oral evidence and made submissions concerning the modification application. Their concerns can be summarised as follows:

• There is inadequate parking provided by the development, which will cause additional problems for residents’ on-street parking and safety issues for those leaving driveways along Addison Street,

• The additional boarders will create additional acoustic and other amenity impacts,

• The reduction in the number of on-site managers will create additional amenity issues for surrounding residents, particularly given their experience of anti-social and criminal behaviour from previous occupants of the building,

• There will be overlooking of Ms Jessop’s rear yard and back door from boarding rooms located on the upper storey.

17. In response to the concerns of Ms Jessop regarding overlooking, the Council and Mr Prilis reached an agreement on the imposition of a condition of development consent (if the modification application is granted) that will require the operator of the boarding house to install and maintain privacy measures on the external western facing windows of room numbers 1.12 and 1.13. This includes ensuring that the bathroom window is fitted with opaque glass and privacy screening is placed on two of the western facing windows from which potential overlooking might have otherwise occurred.

18. Some of the remaining concerns of the residents relate to previous occupation of the premises. However, it was confirmed in court at the hearing by Mr Prilis, through his counsel, that occupation of the premises in accordance with the consent has not yet commenced. Once the boarding house use commences in accordance with the consent, occupant behaviour will be managed by the conditions of consent which, inter alia, require the premises to operate in accordance with the Plan of Management.

19. In considering with the general issues raised by the residents concerning the acoustic and amenity impact of the boarding house, as outlined above I cannot reconsider the development consent and it is only the changes sought in the modification application that are before me for consideration. The changes to the boarding rooms sought by the modification application, and the addition of another occupant, will have a negligible effect on the acoustic impact of the boarding house operation. The reduction in the number of boarding rooms for managers nonetheless maintains a number greater than the requirement under the SEPP ARH, which only requires one boarding room or on site dwelling to be provided for a boarding house manager. The issue around the adequacy of the car parking spaces provided on site is addressed below.

Is it substantially the same?

20. As set out above, the power to modify the consent requires that I first be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. If I am not so satisfied, then there is no power to grant the modification application (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46).

21. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J found that the word “substantially” in this context means “essentially or materially or having the same essence.” In considering this provision in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Bignold J observed (emphasis added):

“54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).”

22. In considering the qualitative and quantitative changes that result from the proposed modification, the Council submits that the proposal is not substantially the same for the following reasons:

• The modified proposal results in an increase in the number of boarders and an increase in the capacity of the boarding house,

• The modified proposal changes the nature of the boarding house to one that has fully self-contained boarding rooms, whereas it previously had some rooms that were self-contained and others that were without ensuites and relied on communal kitchen facilities.

• The change in the nature of the boarding house to one that has fully self-contained boarding rooms results in an increased parking demand.

23. In support of these submissions, the Council relies on the evidence of Mr Richardson, town planner, and Mr Bertacco, traffic engineer. Mr Richardson’s opinion is that the removal of the communal kitchen facilities renders the modified proposal something that is not substantially the same as the proposal for which consent was granted. Mr Bertacco’s view is that in doing so, the proposal creates an additional parking demand.

24. Mr Prilis says that the modification application is brought predominantly in response to a report on compliance with the Building Code of Australia, which recommends improving fire safety by changing the location of bathrooms and moving to individual kitchens within the rooms. He submits that there is no quantitative increase in the number of occupants, as the number of occupants remains the same. Mr Prilis submits that the change in occupancy, by increasing the boarders by one and decreasing the managers’ rooms by one, is not significant.

25. Mr Prilis also submits that the proposal as modified does not change the nature of the development, which remains a boarding house. He relies on the evidence of Mr Hammoud, town planner, who points out that the different ways of providing boarding room facilities are acknowledged by the SEPP ARH at cl 29(3), but does not change the nature of the development. Clause 29(3) provides that a “boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room”.

26. Further, Mr Prilis submits that the proposition that you will get a different type of occupant or occupants of different socio-economic status as a result of changing the rooms to being full self-contained is completely unsubstantiated.

The modified proposal is substantially the same

27. I accept that the proposal as modified is substantially the same as that for which development consent was granted. Firstly, there is no quantitative change in the occupants of the building. What is sought by the modification application reduces the number of rooms by 2, by removing one boarding room and one manager’s room. The modification application seeks to limit the occupancy to a maximum of 53 lodgers and 2 adult managers, which is one additional boarding room resident and one less manager than that already the subject of consent, and therefore does not change the total number of occupants.

27. Secondly, there is little quantitative change to the capacity of the boarding house resulting from the proposed modification. The town planning experts, Mr Richardson and Mr Hammoud, both agree that the total capacity for the boarding house, based on the room size and pursuant to the application of minimum sizes set out in cl 29(2)(f) of the SEPP ARH, is for 68 guests if the modification is made to the development consent and for 67 guests as approved. This is an increase in capacity by 1 only, which in my view is insignificant in a quantitative assessment considering the overall capacity.

28. Thirdly, there is no qualitative change in the use or the nature of the boarding house. That the rooms are now proposed to be fully self-contained does not change the nature of the boarding house. Clause 29(3) of the SEPP ARH clearly acknowledges that a boarding house may have private facilities in each room, but is not required to do so, and no change to the standards for the boarding house results from it having those private facilities.

29. Fourthly, in considering the reasons given by O’Neill C in Prilis v Marrickville Council, there is nothing in those reasons that demonstrates that an essential part of the development, as approved, was the fact that 13 of the 39 rooms relied on communal kitchen facilities. As a result, I do not accept that the move away from those communal kitchen facilities removes any essential element or key feature of the development the subject of the consent.

30. Fifthly, even if, hypothetically, I was to accept that the change to fully self- contained boarding rooms resulted in an increase in parking demand (a point to which I will return below), I do not accept that this is relevant to the question of whether the modified proposal is substantially the same as that for which development consent was granted. Absent any other quantitative or qualitative change to the proposal through the modification application, the increase in parking demand forms part of the assessment of the merits of the modification application, and is considered below accordingly.

31. Having been satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, I now turn to the remaining contentions raised by the Council.

Parking

33. The effect of cl 29(2)(e) of the SEPP ARH for the present application is that the consent authority “must not refuse” the development application on the basis of parking if parking is provided at the rate of 0.2 spaces for each boarding room. There are three spaces provided, whereas applying the rate under cl 29(2)(e) would require 7.8, or 8, to be provided.

34. In granting development consent in Prilis v Marrickville Council, the Council agreed and the Court accepted that a concession on the parking numbers referred to in cl 29(2)(e) was appropriate. However, the Council now says that such a concession should not be made and that the parking is inadequate.

35. The Council says that it is appropriate to re-assess the adequacy of the parking in circumstances where it now acknowledges that the parking is not adequate. The Council relies on a Fact Sheet from the Department of Planning concerning a draft amendment to the parking provisions for boarding houses, which attaches an Explanation of Intended Effect proposing an increase to the standard at cl 29(2)(e) of the SEPP ARH to 0.5 spaces per boarding room. The Council submits that this change more reasonably reflects the practical impacts on parking in communities where boarding houses exist, which it says I ought to take into account in considering the present modification application.

36. The Council also submits that it is appropriate to re-assess the adequacy of the parking as the proposal is now effectively for self-contained studio apartments, with a target market more likely to own motor vehicles. The Council submits that these boarding rooms will attract higher rent than rooms relying on shared facilities, which means that the target market will have a higher socio-economic status and is therefore more likely to own a car. The Council relies on the opinions of Mr Richardson and Mr Bertacco in that regard. However, neither Mr Richardson nor Mr Bertacco provided any data to demonstrate how that opinion was reached. The Council submits that based on this opinion that self-contained boarding rooms will attract residents more likely to own a car, the shortfall in car parking spaces will impact the surrounding streets more so than the development as currently approved.

37. Mr Prilis submits that regardless of any proposed change to the SEPP ARH, or any changed position of the Council in relation to the adequacy of parking, it is not appropriate to re-assess the parking adequacy on the modification application. He submits that any issue about the adequacy of the parking ought to have been raised at the time of the hearing on whether development consent should be granted. Mr Prilis says that even if the modification application is refused, the issue of a parking shortfall as compared to the SEPP ARH will remain, and that there is nothing in the application that exacerbates this issue.

38. Mr Prilis points out that, noteably, the “must not refuse” requirement for parking set out in the SEPP ARH depends on the number of rooms, not the number of residents. As the modification application seeks to remove one boarding room and one manager’s room, the number of parking spaces required is marginally less under the modified proposal than for the proposal as approved.

39. Mr Prilis also submits that there is no evidence to support the assertion that the target market for self-contained boarding rooms is more likely to own a car. In particular, Mr Prilis says that the propositions that you will get a different type of occupant or occupants of a different socio-economic status, and that such occupants are more likely to own cars, are unsubstantiated. Mr Hammoud’s evidence was that he was unable to find any data to support the opinion expressed by Mr Richardson and Mr Bertacco in that regard.

There is no additional impact on parking

40. I accept the submission of Mr Prilis that it is not appropriate to revisit the question of whether the parking is adequate in the proposal for which development consent was granted. This question was already considered in the granting of development consent, and any deficiency in the parking provided, if there is one, comes as a result of the granting of that consent following the agreement of the former Marrickville Council. In considering the modification application, I can only consider the additional impact caused by the proposed modification.

41. There is no numerical increase in occupants that warrants the reconsideration of the parking provided. The proposal, as approved, caters for 55 occupants with 3 parking spaces, to be provided to managers only. The modification sought does not change the number of occupants, except that there is one more boarder and one less manager residing on site. This change in the composition of the occupants is negligible and does not create a sufficient additional impact to re-assess the parking provided and the impact on on-street parking.

42. The only additional impact, therefore, is that which the Council alleges arises from the change from 25 of 39 rooms being self-contained, to 38 fully self-contained rooms. Contrary to the Council’s submission and the opinion of the experts on which the Council relies, I do not accept that this results in an increased demand for parking that I ought to assess, for four reasons.

43. First, there is absolutely no evidence to support the proposition that, by increasing the number of boarding rooms with self-contained facilities (and therefore increasing the rents for those rooms), the occupants are more likely to own vehicles and therefore require parking. For example, there is no data to demonstrate that in the area of Petersham, moving from one particular rental rate to another will put an occupant into a socio-economic category that is more likely to own a car. Further, there is no data to demonstrate a link between socio-economic status and car ownership in Petersham, particularly in areas where there is access to public transport, such as within 800m of the train station as the proposal is. It is entirely false to assert that no evidence is needed to establish that there is a link in Petersham between higher rents in boarding houses and car ownership, and neither Mr Richardson nor Mr Bertacco had any data whatsoever or social planning experience to support their opinion in this regard.

44. Second, a difference in parking demand for boarding rooms that have shared facilities and parking demand for boarding rooms that are fully self-contained is not borne out by the controls in the SEPP ARH. The “must not refuse” parking requirements in cl 29(2)(e) draw no distinction between the two different types of boarding rooms, and the parking requirements remain the same for both types of boarding rooms.

45. Third, there is nothing in the Department of Planning fact sheet and explanation that draws a distinction between the parking demand for the two different types of boarding rooms. Instead, the proposed amendment to the SEPP ARH discussed therein proposes a single rate of parking for boarding rooms of 0.5 parking spaces per room, which is intended to apply across all boarding houses. Despite acknowledging the different types of boarding houses in the fact sheet, the proposed new rate draws no distinction between whether the boarding house is a traditional boarding house with shared facilities, or a new generation boarding house with self-contained facilities.

46. Fourth, in Prilis v Marrickville Council, in which the reasons for the grant of development consent were given, O’Neill C clearly set out the reasons for which the lack of on-site parking was considered to be acceptable. In doing so, there was no reliance whatsoever on the boarding house having some rooms that utilised shared facilities. Her findings on the parking issue are as follows:

“15 Council submits that no resident parking schemes will be available to residents of the proposal, which is consistent with similar recent development consents within the municipality and that this will be a deterrent for future occupants to own a car. Council further submits that the proposal is located within an 'accessible area', being within 800 metres of Petersham Railway Station.

16 The parties agree that the identified heritage significance of 'Tresillian', including its garden setting, prevents additional parking from being located on-site. Council accepts that the capacity for on-site parking is limited due to the heritage significance of the grounds, including the garden setting of the heritage item.

17 I accept the conclusion reached by the parties on the issue of parking.”

47. It is clear that the existence of rooms that relied on shared facilities did not form the basis for the acceptability of the lack of parking provided on site.

48. Given that none of the circumstances referred to in [15] or [16] of the decision in Prilis v Marrickville Council are changed by the modification application, and that there is no evidence to support the submission that self-contained rooms in Petersham generate more parking demand than other boarding rooms, there is no increased demand for parking caused by the proposed modification and no basis upon which I ought to re-assess the adequacy of parking.

The imposition of a condition limiting occupancy

49. As set out above, condition 4 of the development consent limited the number of boarders that could reside on the premises to 52. In the modification application, Mr Prilis seeks to amend condition 4 so that the number of boarders that can reside on the premises is 53. The proposed amended condition 4 limits the number of residents in each room, and then provides the total of 53.

50. Condition 4 currently reads:

“The premises being used exclusively as a boarding house containing a maximum total of 39 lodger’s rooms and 3 on-site manager’s rooms with not more than 52 adult lodgers and 3 adult on-site managers residing in the premises at any one time. The number of adult lodgers housed per room not exceeding the following:

Room No.	Number of Lodgers	Room No.	Number of Lodgers	Room No.	Number of Lodgers
G.01	1	G.15	1	G.29*	1
G.02	2	G.16	1	1.01	1
G.03	1	G.17	1	1.02	1
G.04	1	G.18	1	1.03	1
G.05	1	G.19	2	1.04*	1
G.06	2	G.20	2	1.05	2
G.07	2	G.21	2	1.07	1
G.08	1	G.22	1	1.08	1
G.09	1	G.23	1	1.09	1
G.10	1	G.24	2	1.10	2
G.11	1	G.25	2	1.11	2
G.12	1	G.26	2	1.12	1
G.13	2	G.27	1	1.13	1
G.14*	1	G.28	1	1.14	1

* Indicates Manager’s Room

The premises not being adapted for use as backpacker's accommodation, serviced apartments or a residential flat building.

Reason:   To ensure that the premises are used exclusively as a boarding house for not more than 52 adult lodgers and 3 adult on-site managers”

51. The proposed amended condition 4 reflects that there is a change in the number of the rooms and the composition of the rooms, and provides as follows:

“The premises being used exclusively as a boarding house containing a maximum total of 38 lodger’s rooms and 2 on-site manager’s rooms with not more than 53 adult lodgers and 2 adult on-site managers residing in the premises at any one time. The number of adult lodgers housed per room not exceeding the following:

Room No.	Number of Lodgers	Room No.	Number of Lodgers	Room No.	Number of Lodgers
G.01	1	G.15	2	G.29*	1
G.02	1	G.16	2	1.01	1
G.03	2	G.17	2
G.04	1	G.18	1	1.03	1
G.05	2	G.19	1	1.04	2
G.06	1	G.20	2	1.05*	1
G.07	1	G.21	1	1.07	2
G.08	1	G.22	1	1.08	2
G.09	1	G.23	1	1.09	1
G.24	1	1.10	1
G.11	1	G.25	1	1.11	2
G.12	2	G.26	2	1.12	1
G.13	2	G.27	1	1.13	1
G.14	2	G.28	1	1.14	2

* Indicates Manager’s Room

The premises not being adapted for use as backpacker's accommodation, serviced apartments or a residential flat building.

Reason:   To ensure that the premises are used exclusively as a boarding house for not more than 53 adult lodgers and 2 adult on-site managers.”

52. The Council submits that the proposed amended condition 4, in limiting the number of residents for each room without going through a process of determining whether such a limit is appropriate for each room, is arbitrary and not for a planning purpose. In support of this submission, the Council relies on cl 29(2)(f) of the SEPP ARH, which has the effect of preventing the Council from refusing a development application based on room size if the room sizes are at least 12m2 for a single occupant and at least 16m2 for two occupants. Given that some of the rooms that are greater than 16m2 are proposed to be limited to single occupancy by condition 4, the Council says that this condition does not have a proper planning purpose.

53. Mr Prilis submits that the proposed amended condition 4 seeks to limit the occupancy so as to reduce the impact of the proposal, just as was done by the current condition 4. For that reason, Mr Prilis says that there is clearly a proper planning purpose for the condition. Mr Prilis also points out that the current condition 4 imposes similar limits on occupancy, and this condition was agreed to by the former Marrickville Council. Mr Prilis further points out that cl 29(2)(f) establishes “do not refuse” criteria for room size such that the Council cannot refuse the application based on room size if the rooms are larger than a certain size, but does not set a requirement for all single rooms to be less than 16m2.

54. In determining whether the amended condition 4 is appropriate, it is important to consider that what is before the Court is merely the question of the amendment to condition 4. The Council’s submissions instead largely relate to the legitimacy of the imposition of the condition on the grant of the development consent. The question for my determination is whether there should be the amendment to condition 4 as sought, or whether the amendment sought ought to be refused and the condition remain as is.

55. In framing the question in that manner, it is clear that the condition ought to be amended as sought. Firstly, the amendment to the condition simply reflects the changes to the size and number of boarding rooms.

56. Secondly, I am of the view that a condition limiting the occupants to the number sought has a proper planning purpose and falls within the scope of s 4.17 of the EPA Act by limiting the intensity of the use to that which is sought in the modification application. It is open to an applicant for development consent to define the intensity of use that it seeks for a development, and for the consent authority to consider, in accordance with s 4.16(1)(b), whether consent should be granted for the intensity as sought and to determine whether to impose conditions to manage the intensity of the use and the impact of that intensity in accordance with s 4.17(1)(a). To do so is entirely for a planning purpose. The modification application seeks to vary the way in which the intensity is distributed, the result of which is that it seeks 53 boarders and 2 managers, and condition 4 limits the use to what is sought.

57. Thirdly, the way that this limit on occupancy is apportioned between the rooms need not undergo special scrutiny, other than to ensure that the standards in cl 30 of the SEPP ARH are complied with for each room, together with any other applicable standards or matters arising under s 4.15(1) of the EPA Act. No amenity or other issues regarding any of the individual rooms, as modified by the application, have been raised by the Council.

58. Fourthly, by imposing a limit on the total occupancy that is the equivalent of the limit imposed on the proposal the subject of development consent, condition 4 limits the impact of the use on the neighbourhood to what was previously considered as appropriate by the Court and agreed to by the former Marrickville Council.

59. For these reasons, I accept that the proposed amended condition 4 is for a proper planning purpose and that condition 4 ought to be amended to reflect the changes to the boarding rooms.

The inability to levy an additional contribution

60. Condition 40 of the development consent requires the payment of a levy pursuant to s 7.12 (previously s 94A) of the EPA Act in accordance with the Marrickville Section 94/94A Contributions Plan 2004. At the time of the grant of consent, a levy pursuant to s 7.11 could not be levied on boarding houses under the Marrickville Section 94/94A Contributions Plan 2004. Since then, the Marrickville Section 94/94A Contributions Plan 2014 commenced, which allowed a levy on boarding houses under s 7.11. It is common ground that the Marrickville Section 94/94A Contributions Plan 2014 does not apply to the development consent or its modification.

61. The Council submits that the inability to levy an additional contribution under s 7.11 in circumstances of increased intensification will create an increased drain on the Council’s services that is not compensated. The Council says that it is against the public interest to allow the modification in those circumstances.

62. Mr Prilis submits that as no additional occupants are proposed by the modification application, there is no increase in the demand for public amenities and services. In any event, Mr Prilis submits that the inability to impose additional levies is irrelevant to the consideration of the merits of the modification application.

60. I accept the submissions of Mr Prilis. There is no increase in the demand for public services created by the modification application, and even if there was, the inability to impose additional levies does not fall within the matters relevant to consideration of the modification application in accordance with s 4.55(2).

The modification application should be allowed

64. For the above reasons, none of the contentions raised by the Council warrant refusal of the modification application. I am of the view that the modification sought improves the amenity for residents by changing the layout of the boarding houses such that all rooms are now fully self-contained. As such, I am satisfied that it is appropriate to grant the application.

65. The Court orders that:

1. The appeal is upheld.

2. The application to modify the development consent given by the Court on 19 December 2012 in proceedings number 12/11108 by changing the internal layout and modifying the lodger and manager numbers, is granted subject to the conditions in Annexure A.

3. The development consent given by the Court on 19 December 2012 in proceedings number 12/11108 for alterations and additions and the use of premises at 2-4 Shaw Street, Petersham for the purpose of a boarding house is now subject to the consolidated conditions of consent in Annexure B.

4. Exhibits 1, 2, 3, 4 and E are returned.

___________________________

Joanne Gray

Commissioner of the Court

Annexure A (333 KB, pdf)

Annexure B (324 KB, pdf)

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Decision last updated: 15 May 2018