Prilis v Marrickville Council

[2012] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prilis v Marrickville Council [2012] NSWLEC 1348

Hearing dates:

14 December 2012

Decision date:

19 December 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The applicant is granted leave to rely upon amended plans Nos. DA-1103B and DA-1854C dated 27 November 2012 prepared by Nicholas Prilis and the Amended Plan of Management Revision B dated November 2012 prepared by Peter Prilis.

2. By consent, the appeal is upheld.

3. Development consent is granted to development application No.201200172 lodged with the Respondent on 15 May 2012 for use of existing buildings at 2-4 Shaw Street Petersham as a boarding house with 39 boarding rooms and 3 Manager's rooms and alterations and additions to accommodate the use subject to the conditions at Annexure A.

4. There is no order as to costs.

Catchwords:

DEVELOPMENT APPLICATION: consent orders; boarding house.

Legislation Cited:

Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979

Category:

Principal judgment

Parties:

Anastasios Prilis (Applicant)
Marrickville Council (Respondent)

Representation:

Mr Mark Driscoll (Solicitor) (Applicant)
Mr Joe Strati (Solicitor) (Respondent)
Solicitors
BCP Lawyers and Consultants (Applicant)
Marrickville Council (Respondent)

File Number(s):

11108 of 2012

Judgment

1. COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. DA201200172 (the application) for minor alterations and additions to existing buildings at 2-4 Shaw Street, Petersham (the site) for a proposed new use as a boarding house, containing 39 lodger's rooms and 3 on-site manager's rooms.

1. Prior to the hearing, the Council determined to enter into consent orders, based on a confidential report provided to them by the Council's Principal Solicitor. Minor amendments have been made to the proposal, including:

• Providing a minimum 1.8 m lapped and capped fence to the western and northern boundaries;
• Providing bollards and landscaping adjacent to the on-site parking on the southern side of the site.

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

1. In accordance with the Practice Note, five local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as:

• The proposal is incompatible with the character of the locality;
• While the proposal does not introduce any additional floor area to the site, the proposal is of a scale and intensity significantly greater than would ordinarily be expected in a residential zone and it will therefore have a greater impact on the amenity of the neighbours, including noise impacts; and
• Insufficient parking is provided on-site.

Planning Framework

1. The proposal is subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Clause 30A of SEPP ARH, Character of local area, states the following:

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

1. The site is zoned R1 General Residential, pursuant to the provisions of the Marrickville Local Environmental Plan 2011 (LEP 2011) and the proposal is permissible with consent.

1. The relevant objectives of the R1 zone are:

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

1. 'Tresillian', 2-4 Shaw Street, Petersham, is a heritage item, pursuant to Schedule 5 Environmental Heritage of LEP 2011 and described as:

"Tresillian"-2 storey Federation Queen Anne style mansion; 1920s nurse's home; garden

Character of the local area

1. The parties agree that the proposal does not require any significant external changes to the existing buildings. The Council submits that the retention and adaptive re-use of the existing buildings on the site for residential use is considered to be compatible with the character of the local area.

1. I accept the Council's submission that the proposal is compatible with the character of the local area.

Amenity impact - acoustic

1. The Council submits that the proposal will require noise attenuation measures to be implemented to protect the residents from aircraft noise and these measures will provide suitable levels of acoustic amenity between rooms in the development and from within the site to adjoining properties.

1. The Council submits that the proposed open space area is contained on three sides by the existing building and is located adjacent to the driveway/courtyard of 6 Shaw Street. The ground level of the courtyard is 600-700 mm lower than the ground level of the adjoining driveway/courtyard. The conditions on consent impose a limit on the use of the courtyard to between 7 am and 10 pm 7 days per week and in addition, one of the Manager's residences opens directly onto the courtyard.

1. I accept Council's submission that the proposal will result in acceptable acoustic impacts on adjoining properties.

Parking

1. The proposal includes 3 on-site parking spaces for use by the on-site managers and 10 motorcycle spaces and storage for 26 bicycles for the residents.

1. 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.

1. 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.

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

Conclusion

1. In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent.

Orders

1. The orders of the Court are:

1.   The applicant is granted leave to rely upon amended plans Nos. DA-1103B and DA-1854C dated 27 November 2012 prepared by Nicholas Prilis and the Amended Plan of Management Revision B dated November 2012 prepared by Peter Prilis.

2.   By consent, the appeal is upheld.

3.   Development consent is granted to development application No.201200172 lodged with the Respondent on 15 May 2012 for use of existing buildings at 2-4 Shaw Street Petersham as a boarding house with 39 boarding rooms and 3 Manager's rooms and alterations and additions to accommodate the use subject to the conditions at Annexure A.

4.   There is no order as to costs.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 19 December 2012