Provident Homes Pty Ltd v Bayside Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Provident Homes Pty Ltd v Bayside Council [2021] NSWLEC 1011

Hearing dates:

13-14 October 2020, final documentation filed 22 October 2020

Date of orders:

12 January 2021

Decision date:

12 January 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application No. 2019/88 for a boarding house at 19 Valda Avenue Arncliffe is refused.

(3) The exhibits are returned with the exception of Exhibits U, V, W and 2.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – initial development in precinct up-zoned from low density to high density residential – design excellence – relationship with public reserve – street activation – relationship with adjacent site and its future development prospects

Legislation Cited:

Environmental Planning and Assessment Act 1979

Rockdale Local Environmental Plan

State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

Karavellas v Sutherland Shire Council [2004] NSWLEC 251

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Apartment Design Guide

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (March or July 2020)

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

Provident Homes Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Staunton (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/197693

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Bayside Council’s deemed refusal of Development Application No. 2019/88 (‘DA’). With amendments to the application, leave for which was granted by the Court, the DA is for demolition of existing structures and construction of an eight storey boarding house comprising 38 boarding rooms, a manager’s room and two levels of basement car parking at 19 Valda Avenue Arncliffe, legally described as Lot 100 DP 1230309 (‘site’).

Site and setting

2. I would note here that for the descriptive material that follows, I rely on the Amended Statement of Facts and Contentions (‘Ex 2’) prepared by Bayside Council (‘Council’).

Site

3. The site is located at the south-eastern end of Valda Avenue. It is a corner allotment on the southern side of the street and is some 522.9m² in area. The site has a primary frontage to Valda Avenue of 12.51m and a secondary frontage to Marsh Street of 45.45m. The site’s side boundaries are somewhat angled, rather than perpendicular, to Valda Avenue. In turn the site width might be better understood by the rear boundary dimension, shown as 11.37m in architectural plans. The site slopes from the rear towards the front boundary with a fall of some 3.2m.

Locality

4. Older style single and two storey dwellings are located in the site environs commonly with pitched and tiled roof forms and soft landscaping within the front setback areas. To the south of the site, on the opposite side of Marsh Street, is a well vegetated…