Sales Search Pty Ltd v The Hills Shire Council
[2013] NSWLEC 1052
•02 April 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Sales Search Pty Ltd v The Hills Shire Council [2013] NSWLEC 1052 Hearing dates: 11-14 March 2013 Decision date: 02 April 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Boarding house; permissibility; whether design of development is compatible with character of the local area; adequacy of facilities; accessibility; whether the sits is suitable for the use Legislation Cited: Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; Baulkham Hills Local Environmental Plan 2005; State Environmental Planning Policy (Affordable Rental Housing) 2011; The Hills Local Environmental Plan 2012; Standard Instrument-Principal Local Environmental Plan; Boarding House Act 2012; State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004; Environmental Planning and Assessment Regulation 2000 Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191;
Chehade v Bankstown City Council [2012] NSWLEC 1122;
Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129;
Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23;
Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71;
Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council (No 2) [2012] NSWLEC 247;
Mackenzie v Warringah Council [2002] NSWLEC 246;
Crosland v North Sydney Council [2000] NSWLEC 165;
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114;
Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029Category: Principal judgment Parties: Sales Search Pty Limited (Applicant)
The Hills Shire Council (Respondent)Representation: Mr T Howard (Applicant)
Mr M Fraser (Respondent)
Ms J Millington
Mr C Shaw
Shaw Reynolds (Applicant)
The Hills Shire Council (Respondent)
File Number(s): 10707 of 2012
Judgment
Sales Search Pty Ltd lodged Development Application 1373/2011/HB with The Hills Shire Council on 14 April 2011 seeking consent to demolish existing structures and construct a two storey boarding house containing 41 units at Nos. 93-95 Baker Street, Carlingford. The council refused consent and Sales Search is appealing that decision.
The contentions in the case are whether the use is permitted on the land, the design of the development is compatible with the character of the local area, adequate facilities have been provided within the development so that an acceptable level of amenity is available and whether the site is suitable for use as a boarding house.
Background and the proposal
The council refused consent on 12 January 2012 and Sales Search sought review of that decision under the provisions of s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act) with amended plans and additional information lodged and considered by the council. Those plans reduced the number of rooms to 35 and reconfigured the internal layout of the building. The council confirmed its decision to refuse consent to the application on 24 July 2012.
The reasons for refusal of the application was that it was not considered to be in character with the locality as required under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH), and the council's LEP and not in the public interest in view of the number of objections that had been received
A conciliation conference was held and, as a result of that process, the applicant prepared further amended plans. The applicant was granted leave by the Court to rely on those plans on 16 January 2013 and it is those plans that are now the subject of this appeal.
The proposed building is two storeys in height and has been designed as two pavilions connected by a single storey element with rooftop communal terrace and is sited along the eastern portion of the site. The front element is in the approximate location of the existing dwelling and garages however is to be erected on a reduced setback to the eastern boundary with that setback varying from 1.5m to 2.134m. The rear component is sited between 4m and 4.335m from the eastern boundary and at least 6.5m from the rear, southern boundary.
The proposal is now for a 33 room boarding house with one of those rooms to be a caretaker's/manager's residence. The application was lodged under the provisions of SEPPARH. Each room would contain a bathroom, an area for bed/s, wardrobe, table and chairs, desk and an area described as a "benchtop". That area is 1.2m long and incorporates benchspace, a sink, fridge and has cupboards above it. No cooking facilities would be installed within any of the rooms.
A combined living/dining area/kitchen would be provided on each floor of the boarding house. On the ground floor that space is also provided with an accessible toilet and opens onto the communal open space to the west of the building. The upper floor common room contains a unisex toilet, living and dining area and kitchen space. That area opens onto the communal balcony that separates the two sections of the building. The plans provide for cupboards, a fridge, two cooktops, two ovens and two microwaves in each kitchen.
The buildings are primarily of brickwork with feature timber panelling. Pitched tiled roofs are proposed on each element with the walls of the upper sections separated by a distance of 6m and the eaves by 4.6m (scaled). A 1.8m high masonry wall runs between the two buildings at the eastern side of the balcony connection to address noise and privacy issues.
Parking for 14 cars, 7 motor cycles and 11 bikes is located to the west of the building in that part of the site that is affected by an electricity easement. Vehicular access to the site is from one driveway crossing off Baker Street located approximately 8m from the western boundary. The parking area is separated from the building by two large trees that are to be retained. Only two other trees, at the front of the existing dwelling are to be retained, all others, mostly privet, are to be removed. Perimeter tree planting, garden beds, shrub plantings, a vegetable garden, fitness equipment and grassed common areas including a moveable BBQ are proposed under the landscape plan that forms part of Exhibit A.
The site and its context
The site is described as Lot 1 in DP 996639 and known as Nos. 93-95 Baker Street, Carlingford. It is located on the southern side of Baker Street to the west of Jenkins Road and has a street frontage of 61.8m and area of 3,459sqm. The site benefits from a right-of-carriage way that runs along its entire western boundary and is affected by an easement for transmission lines that is 33.76m wide and runs north/south across the site. Two transmission towers are located within the easement.
A single storey dwelling house, garage, carport and a number of outbuildings are currently located on the site and would be demolished.
Baker Street is an irregular shaped road that connects Jenkins Road to Moseley Street and then continues in a southerly direction to the Cumberland Highway. The site is located within the section between Jenkins Road and Lasburn Crescent, which has an undulating landform falling from the south to a creek at the rear of the properties opposite the site. The transmission easement, due to it width, provides an open area on both sides of the roadway and development to its east is primarily multi-unit housing with the exception of the existing dwelling on the site and the adjoining dwelling No. 97 Baker Street, both single storey.
Two storey townhouse developments are located on the corner of Jenkins Road and Baker Street adjacent to No. 97 and opposite the site stepping down the slope of the land toward the creek. Those townhouses run behind a single and a two storey dwelling house. A villa house development is located on the opposite side of that intersection. Development further along Baker Street on its northern side comprises single and two level dwelling houses that also follow the fall on the land.
To the west of the site are two single storey dwelling houses, one fronting Baker Street and the other on a battle-axe allotment serviced from the adjoining right-of-way. A two storey dual occupancy development is located at the corner where Baker Street intersects with Lasburn Crescent.
The area described above is agreed to be the visual catchment of the site with houses in Jenkins Road directly opposite Baker Street also included. Those houses are two storey dwellings.
An industrial use occupies the land to the immediate south of the site and is accessed from the right-of-way. Development within the wider catchment comprises a mix of single storey and two storey dwellings, some on battle-axe allotments and another townhouse development in Jenkins Road.
Carlingford Court and Carlingford Station are 1.1km (to main entrance) and 1.2km walk respectively from the site using existing pedestrian crossings that make the route longer than actual. There is a bus stop located on Jenkins Road, approximately 150m walk from the site with services running to Parramatta, as well as two bus stops with services running to Epping that are located approximately 400m walk from the site on Parkland Road and 350m walk on Jenkins Road.
The planning controls
At the time the application was lodged, the site was zoned Residential 2(a3) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). The aims of the plan and objectives for development are contained in clause 2. Those relevant to the case are:
(1) The aims of this plan are:
(a) with respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills for present and future generations, and
(b) with respect to the community of that area, to encourage a strong sense of community identity and economic well being throughout Baulkham Hills through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and
(c) with respect to use of resources within that area, to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas that promote a high level of residential amenity,
(2) The objectives for development of this plan are:
(a) with respect to the natural and built environment of the Baulkham Hills local government area, that development should:
(i) recognise and implement the principles of ecologically sustainable development, and......
(v) respect, improve and integrate with the local character of the locality in which it is carried out, and......
(vii) have regard to the land uses that form the rural and urban environment of the Shire, and
(viii) minimise the use of non-renewable resources and maximise the use of renewable resources, and
(ix) incorporate energy saving mechanisms and water saving mechanisms, and
(x) minimise waste and pollution, and
(xi) promote buildings designed for adaptive re-use, and.......
(b) with respect to the community of that area, that development should:
(i) integrate land use and improve access to open space, employment opportunities, public transport, community facilities and commercial services, and.....
(v) maximise positive social impacts and minimise potentially detrimental social impacts, and......
(vii) optimise the shared use of streets and parking facilities, while improving or creating an efficient pedestrian environment, and......
(c) with respect to use of resources within that area, development should:
(i) protect localities from inappropriate development and ensure that local amenity is maintained and enhanced, and
(ii) provide choice in housing for residents, and
(iii) ensure that urban housing type varies and is designed and constructed in a manner that can accommodate (or be adapted to the needs of) a variety of household types, and
(iv) contribute to the synergy between land use activities.
Clause 13(2) of LEP 2005 states:
Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that the proposed development:
(a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and
(b) is not contrary to achieving the objectives of the zone within which it will be carried out.
The objectives of the 2(a3) zone are:
(a) to make provision for villas on land suitable for increased housing densities which is not within proximity to the town centres, facilities or public transport, and
(b) to ensure that building form (including alterations and additions) is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and
(c) to ensure that any development carried out:
(i) is compatible with adjoining structures in terms of elevations to the street and building height, and
(ii) has regard to the privacy of existing and future residents, and
(iii) has regard to the transmission of noise between dwellings, and
(iv) minimises energy consumption and utilises passive solar design principles, and
(v) retains significant vegetation, and
(vi) incorporates landscaping within building setbacks and open space areas, and
(vii) incorporates adaptable housing to meet the needs of people with disabilities, and
(d) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and
(e) to maintain the amenity and low density environment of areas predominantly characterised by detached dwelling-houses, and
(f) to allow a range of development, ancillary to residential uses, that:
(i) is capable of visual integration with the surrounding environment, and
(ii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and
(iii) does not place demands on services beyond the level reasonably required for residential use.
A boarding house is not a use that is defined in clause 5 of LEP 2005 and is therefore not referred to in any of the land uses permitted with or without consent or prohibited in the 2(a3) zone. The council's position is that the use of the site as a boarding house is prohibited, as it is either an apartment building or commercial premises. The applicant says a boarding house is an innominate use and is permitted with consent. Clause 5 contains the following definitions:
apartment building means a building containing 3 or more dwellings where each dwelling does not necessarily have direct access to private open space at natural ground level.
commercial premises means a building or place used as an office or for other business or commercial purposes but, in the Table to clause 13, does not include a building or place elsewhere specifically defined in this clause or a building or place used for a land use elsewhere specifically defined in this clause.
The applicant relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 as made on the day the application was lodged (the original SEPP) as the primary environmental planning instrument that applies to the application. That policy was amended by State Environmental Planning Policy (Affordable Rental Housing) 2011 (the amending SEPP) on 20 May 2011 and, of particular relevance to this application, introduced additional matters for consideration. It is agreed that of those new provisions, only clause 54A applies and this reads as follows:
54A Savings and transitional provisions-2011 amendment
(1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if:
(a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and
(b) the development is commenced not later than 2 years after the amendment.
(2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made.
(3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
(4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP.
The parties agree that Division 3 of Part 2 of the original SEPP applied to the site at the time the application was lodged (14 April 2011) however disagree whether the policy applies. That is because council contends the 2(a3) zone is not an equivalent zone for the purposes of clause 26. Clause 26 requires the site to be in one of the zones listed in the clause or within a land use zone that is equivalent to any of those zones. Determination of whether the site is within the latter is guided by clause 5 and that clause has not changed. It states:
(1) A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act:
(a) that the Director-General has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or
(b) if no such determination has been made in respect of the particular zone, is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone.
(2) An assessment made by a relevant authority under subclause (1) (b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone.
(3) In this clause, relevant authority means:
(a) the public authority proposing to carry out the development, or on whose behalf the development is proposed to be carried out, or
(b) if the development is to be carried out by or on behalf of a person other than a public authority, the consent authority.
Standards that cannot be used to refuse consent are contained within clause 29 of the original and amending SEPPs. Standards for boarding houses are provided within clause 30 of the original SEPP and it is agreed that all of those standards are met with the exception of cl 30(1)(a) and (d). Clause 30 states:
(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:
(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,
(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,
(f) if the boarding house is on land within a zone where residential flat buildings are permissible, no new car parking for lodgers will be provided on the site,
(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,
(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.
The council contends that the proposed kitchen facilities are inadequate and, that whilst two communal living rooms are provided, those areas form part of the kitchens and are not of sufficient size to cater for the likely occupancy of the boarding house.
The Hills Local Environmental Plan 2012 (LEP 2012) came into force on 5 I 2012. Clause 1.8A contains a savings provision relating to development application that reads as follows:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The evidence
The hearing commenced on site with evidence heard from a number of objectors to the proposal, including evidence provided within the rear yard of an adjoining property where the owners demonstrated their concerns. The issues raised by residents is summarised as follows:
- Inadequate public transport;
- Development is out of character with the surrounding neighbourhood; it's too big, too close to boundaries and doesn't fit the streetscape;
- Boarding house is commercial, not residential development;
- Boarding house can cater for up to 55 persons without adequate communal areas, cooking and laundry facilities;
- Adverse amenity impacts;
- Adverse impacts on available street parking and traffic flow along Baker Street;
- Shops and necessary services are remote from the site and difficult to walk to because of the hills;
- Cost of using public transport to get to destination is expensive;
- Adverse social impacts;
- Loss of privacy, overlooking and proximity to existing home;
- Poor living environment for future tenants of boarding house
Expert town planning evidence was heard from Ms D Laidlaw for the applicant and Mr S Harding for the council. Ms R Ryan (applicant) and Dr J Stubbs (council) provided expert social planning evidence.
Mr Harding says the use of the site as a boarding house is prohibited in the 2(a3) zone and also under the original and amending SEPPs as the 2(a3) zone is not an equivalent zone for the purposes of clause 5. Ms Laidlaw says that the issue of equivalent zones is a complex one and relies on the submissions of Mr Howard for the applicant. She does however say that a more realistic way of looking at the issue is to have regard to the fact the original and amending SEPPS make boarding houses permissible in all of the standard residential zones and this is also a requirement of the Standard Instrument-Principal Local Environmental Plan (Standard Instrument). They both agree that this issue is one to be decided by the Court in accordance with the provisions of clause 5 and is better left to legal argument.
The experts agree that the provisions of the amending SEPP require that, before consent can be granted, the Court must take into consideration whether the design of the development is compatible with the character of the local area. They also agree that the two principal issues raised by the council are density and compatiblitly with the existing and desired future character of the area.
In relation to density, they agree that the applicable deemed to satisfy 'density' standard is 0.5:1 and that, as the proposal has a floor space ratio (FSR) of 0.32:1, density and scale cannot be relied on as a reason for refusal when the reason for refusal is simply expressed as a density standard. They also agree that a density of 0.5:1 has commonly been accepted in planning practice and through various State government urban consolidation intitiatives, as a density that can be compatible with low density residential environments.
Mr Harding says that whilst this can be the case, the difference is how denity manifests into character and the design of a building. The SEPP mandates a character assessment and part of that assessment relates to the form of the building and its relationship with other buildings in the immediate area so that the desnity of development can affect the character of a building.
Ms Laidlaw agrees and says that the success of any built form in 'fitting in' has much to do with how well it is articulated and how successfully it has drawn on elements that define the local character. She cautions Mr Harding's population density approach and says that the SEPP, in detemining both minimum and maximum roon sizes and a reasonably close nexus with number of occupants sets a fairly narrow range of population density that can be achieved on a given site, given 'deemed to satisfy' FSR standards and normally applied building efficiency ratios. Metre by metre (of floor area) boarding houses would usually be assumed to provide for denser living than for single dwelling houses and that is something the SEPPS anticipate as within the bounds of reasonable compatibility.
The planners agree that the provisions of clause 54A(3) of the amending SEPP require an assessment of 'future character' however Ms Laidlaw noted the clause provides that the test is against 'the character of the local area' not the exisitng and desired future character of the local area'. They agree that the 'visual catchment' and the 'wider context' as shown in Ms Laidlaw's statement of evidence, Exhibit F, is an appropriate basis upon which to assess the character test set by clause 45A(3).
They agree that within both the visual catchment and the wider context there is a range of dwelling types, including single detached dwellings, villa homes, attached and detached dual occupancies, dwellings in a 'battleaxe' arrangement and town house developments that form part of the existing character. They disagree as to the weight that should be given to the various elements of that character and the ratio and visual presence of single and two storey residential buildings. For that reason, they disagree as to whether the proposal is compatible with local character.
Mr Harding says that the prevailing character is single storey with occassional smaller upper storey forms saying the proposed building is inconsistent with the existing character and this character will not change markedly as a result of the future R2 zone. Ms Laidlaw makes a comparison of the built form with a possible battleaxe subdivision of the site or an attached or detached dual occupancy development and says the outcome would be similar however not include the single storey link element if subdivided but an attached dual occupancy would, possibly at two storeys. She concludes that the design of the development has been informed by the character and built form within the local area and is therefore compatible.
It is common ground that under LEP 2012, villa housing will no longer be permitted in the R2 zone and the only form of multi-unit development that is permissible will be attached and detached dual occupancy development. Boarding houses are also permitted with consent in the R2 zone under LEP 2012.
In their joint report, the planning experts stated that the proposal does not have any adverse 'physical impact' on any adjoining property by reason of privacy, overshadowing etc with reference to the principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [24]. Mr Harding however, stated after the site view, that he did consider the adjoining property at No. 97 may be overlooked and recommended that privacy louvres be provided to the upper floor windows of rooms 32 and 33 that face the central garden area. Ms Laidlaw says that the separation distance of approximately 16m provided sufficient privacy and said louvres were unnecessary however did support side blades to restrict the opportunity of overlooking if the Court deemed it necessary.
The social planners considered issues of accessibility and the internal amenity of the boarding house. Whilst they approached the demographic anyalysis with some different assumptions they agree that there is a need for affordable rental housing in the Hills Shire, an area with very limited current supply of such accommodation, that this need exists across all of the relevant income bands and that the proposal is likely to meet the need for some of the groups of renters currently in housing stress.
Dr Stubbs says that it is likely that the development would be occupied by very low income persons as these are particularly over-represented among those in housing stress in the Carlingford suburb. She provided comprehensive statistical data of occupancy rates of boarding houses throughout the Sydney region to support that view. For that reason she says the site is not appropriately located in relation to shops, support services, public transport and other necessary day to day services.
Ms Ryan acknowledged the housing needs for that group however says that the provision of new generation boarding houses, as per SEPPARH, by the private sector, will usually be likely to provide for the upper lower and middle income bands of households in housing stress. That is because it is delivered, not as social housing by the public sector, but on a for profit basis, by the private sector. She says that the data applied by Dr Stubbs does not reflect the changes that have occurred in boarding house occupancy since the making of SEPPARH in 2009 and that any data that reflects approvals under the policy is statistically too small to be conclusive. Ms Ryan says the likely renters would be key workers and the site is suitably located for these persons and would remain affordable.
Dr Stubbs says that if the boarding house was accommodated by those persons who Ms Ryan says will occupy the boarding house, she would be less concerned about the location of the site and its access to services.
The social planners agree that the proposed design of the boarding house is likely to comply with the relevant provisions of SEPPARH, though it is understood that this is being dealt with in detail by other experts. Dr Stubbs provided a list of matters that she considered should be addressed through the redesign of the premises to ensure that interpersonal conflict and tensions are addressed through increased privacy and private enjoyment of spaces by residents. These include the provision of a kitchenette within each room, making private outside areas/balconies larger and increasing the size of kitchens and the common areas to provide for more diverse activities.
Both experts considered that the draft Plan of Management (POM) and occupancy agreement should be amended to better articulate management practice and the provisions of the recently introduced Boarding House Act 2012. Alternate consent conditions have been forwarded by both parties.
Findings
There is no dispute that there is a need within Carlingford for the provision of affordable housing . The issues in dispute are whether the development proposed is permissible, the design of the development is compatible with the character of the local area, facilities and amenity within the boarding house are adequate and the site is suitable for use as a boarding house.
Permissibility
Mr Howard, for the applicant, submits that, because the site is now zoned R2 under LEP2012, the site is within a named land use zone to which the provisions of clause 26 of both the original and the amending SEPPARH apply and therefore there is no need to consider whether the site is within an equivalent zone. I do not agree, the application was lodged prior to the making of LEP2012 and, in accordance with the provisions of clause 1.8A, the application must be determined as if that plan had not commenced.
Mr Howard also made detailed submissions as to the construction of clause 5 of both the existing and amending SEPPARH and places considerable weight of the objectives of the policy and the fact that boarding houses are uses that must be permitted with consent in all residential zones once the template is made. I have regard to that submission however do not consider that this is all that is required. Should that have been the case, the policy would not require the assessment of equivalence to be made, it would apply to all land zoned for residential use.
It is necessary for the Court to determine whether the site is an equivalent zone for the purposes of the original SEPPARH. In accordance with the requirements of clause 5 of SEPPARH, the Court must determine whether the site is within a land use zone that is equivalent to the R1, R2, R3, R4, B1, B2 or B4 zones under the Standard Instrument for the provisions of that policy to apply. That is because the Director General has not determined the issue. (Clause 5(1)(a)). If the policy does not apply, the application could be determined under the provisions of the LEP2005 if I find that boarding houses are permitted with consent.
Firstly, it is necessary to determine whether the 2(a3) zone is a land use zone in which equivalent land uses are permitted to the relevant zones under the Standard Instrument. The B1, B2 and B3 are not comparable and therefore not equivalent. As I undertook in Chehade v Bankstown City Council [2012] NSWLEC 1122 and Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129, I use the following table to compare uses permitted in the four Standard Instrument residential zones and the 2(a3) zone.
Land use
2(a3)
R1
R2
R3
R4
Attached dwellings
·(villas only)
·
·
Boarding houses
* permitted if innominate use otherwise prohibited
·
·
·
·
Child Care Centres
·
·
·
·
Community Facilities
·
·
·
·
Dwelling houses
·
·
·
Group homes
·
·
·
·
Home occupations
·
·
·
Hostels
·
·
Multi dwelling housing
·(villas only)
·
·
Neighbourhood shops
·
·
·
·
Places of public worship
·
·
·
·
Residential flat buildings
·
·
Respite day care centres
·
·
·
·
Roads
·
·
·
·
Seniors housing
·
·
·
Shop-top housing
·
·
From the above table, it is apparent that the 2(a3) zone permits the range of uses permitted in the R1 General Residential Zone with the exception of residential flat buildings. Despite the numerical similarity, I consider that this prohibition is significant and to such an extent that the 2(a3) zone is not equivalent to the R1 zone. That is because the character of a residential flat building and an area developed in accordance with zone provisions that permit residential flat buildings would be very different to the form of development that has taken place and would be anticipated to take place within the 2(a3) zone.
Similarly, the prohibition of dwelling houses, hostels and semi-detached dwellings in the R3 and R4 zones and multi-dwelling housing in the R4 zone have significant effect in the determination of the issue of equivalent zone and I find neither of these zones is equivalent ot the 2(a3) zone. Similarly, the fact that attached dwellings, multi-dwelling housing, hostels and residential flat buildings in addition to child care centres, community facilities, neighbourhood shops, places of public worship, respite day care centres, seniors housing and shop-top housing are not permitted within the R2 zone result in my conclusion that this zone is also not equivalent to the 2(a3) zone. I do not consider the assessment task is restricted to identifying whether the 5 mandatory uses in the R2 zone are permitted within the 2(a3) zone, the assessment requires that I give consideration to whether equivalent land uses are permitted and therefore, consideration of all of the land uses permitted with consent in the 2(a3) zone under LEP 2005 is required.
The assessment made above leads me to the conclusion that the 2(a3) zone is not a land use zone in which equivalent land uses are permitted in either the R1, R2, R3, R4, B1, B2 or B4 zones under the Standard Instrument. Accordingly, the provisions of the original SEPPARH do not apply to the application.
It is now necessary to determine whether a boarding house is a use that is permissible with consent in the 2(a3) zone. If I so find, the application is one that consent could be granted subject to assessment of the proposal under s 79C of the EPA Act. The council does not have any specific development control plans that apply to boarding houses.
A boarding house is not defined in clause 5 of LEP 2005, the clause that provides meaning to the terms used in the LEP and in particular the zoning controls. Mr Howard submits that the use is an innominate use and is therefore permissible with consent as it is not a use that is prohibited development. Mr Fraser submits that the use is either an apartment building or commercial premises, (see [22] for definitions) and is therefore prohibited development within the 2(a3) zone under LEP 2005.
It is common ground that the development now before the Court has been deliberately designed so as to ensure the rooms do not contain full kitchens. The only facilities that would normally be associated with a kitchen are the benchspace, the sink and a small bar fridge located below the bench. No cooking facilities in the form of hotplates, oven or microwave oven have been incorporated into the design. The draft occupancy agreement proposed by the applicant provides for prior approval before boarders can use any form of cooking appliances within the room. Such equipment, if approved would be limited to 'plug-in' appliances.
For the building to be classified as an apartment building as defined, it would have to contain 3 or more dwellings. In clause 5 of LEP 2005:
dwelling means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.
The issue of whether rooms within a boarding house are dwellings has been the subject of consideration by this Court on a number of occasions. In Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, Biscoe J states:
35 The proposed development provides each residential room with an ensuite bathroom and toilet, a kitchenette and a laundry facility. Each room would be capable of being occupied as a separate domicile. The notion of a separate domicile is critical to the definition of a "dwelling" in a "residential flat building" as defined in the LEP: see [27] above. That accords, I think, with the general concept of a residential flat building. "Domicile" carries with it the notion of a significant degree of permanence of habitation or occupancy: North Sydney Municipal Council v Sydney Serviced Apartments (1990) 21 NSWLR 532 at 538 (CA). In the context of planning controls which regulate the purposes for which land may be used, it is appropriate to think in terms of the meaning of "domicile" as a place of residence or home in a separate and more or less self-contained domestic establishment: cf Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253 at [16] - [17] (Pearlman J). The fact that some residential flat buildings have a communal laundry does not detract from that proposition.
36 In my opinion, rooms in a boarding house cannot be changed to separate domiciles without changing the use to a residential flat building. Rooms with ensuite bathrooms and toilets but without kitchens do not constitute a separate domicile. Nor, at least in the circumstances of this case, do rooms with kitchens but without ensuite bathrooms and toilets. Rooms with both ensuite bathrooms and toilets and kitchens constitute separate domiciles. The development proposed by the applicant goes too far, in my opinion, because its rooms have both ensuite bathrooms and toilets and kitchens.
37 This conclusion based on domicile is not affected by the features of the proposed development which the applicant contends characterise the premises as a boarding house: see [11] above.
38 The council's proposed condition 4 draws a line between a boarding house and a residential flat building and, in my opinion, keeps the proposed development on the boarding house side of the line by excluding kitchens.
39 There are plug in electrical cooking appliances, such as frying pans and vertical grillers, which residents in the proposed development could use in their rooms because they are not precluded by council's proposed condition 4. They do not constitute a kitchen and cater for a different class of resident. Neither party suggests that the use of such appliances would push the proposed development over the line into characterisation as a residential flat building.
Other cases were referred to by Lloyd AJ in Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 and follow the decision of Biscoe J in Warlam in determining that a kitchen is an integral part of a dwelling. Lloyd, at [12] notes that the case was not a normal case and was seeking Orders from the Court to restrain use of a building as a dwelling. In consideration of whether the building was a dwelling Lloyd AJ states that it is necessary to consider the two limbs of the dwelling definition and at .
19 The respondent's submission focuses on the definition of "dwelling" in the local environmental plan:
Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
It is self-evident that there are two limbs to the definition -
[1] a room or suite of rooms occupied or used as a separate domicile, or
[2] a room or suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile: (Stephen Bowers Architects Pty Ltd v Waverley Council [2003] NSWLEC 16; 125 LGERA 292 at [24]).
The focus is on the first limb of the definition, since the building is not so constructed or adapted as to be capable of being used or occupied as a separate domicile.
20 The submissions of Mr PR Rigg, appearing for the owner of the property, may be briefly summarised. The submissions rely upon the absence from the building of the usual facilities noted above. Mr Appleyard, the civil and construction engineer who gave evidence for the Council, said that a kitchen and a fixed bath or shower are essential parts of a residential dwelling. In Louinder v Stuckey (1984) 2 NSWLR 354, Glass JA observed (at 357):
In my opinion the current usage of the term [dwelling house] denotes premises (unassisted by definition) which contain not only accommodation for sleeping but also kitchen, bathroom and lavatory facilities. It is of the essence of the term that all these facilities are separately contained within it ...
21 In Hornsby Shire Council v Monk [2001] NSWLEC 248, Bignold J held that a building without a kitchen providing a stove was not a separate dwelling. In Townsend v Lake Macquarie City Council [2004] NSWLEC 38, I held at [16] that the absence of kitchen, bathroom and laundry facilities necessarily takes a building outside the ambit of a definition of "dwelling", similar to that in the present case. In Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; 178 LGERA 445, Biscoe J held that in his view a "dwelling" and a "dwelling house" similarly defined also requires those facilities.
22 It follows, according to the submissions, that one must look at the facilities to see whether a building satisfied the definition of "dwelling". Moreover, Mr Rigg submits that the intention of the user or occupier of the building is irrelevant.
23 I find myself unable to agree with these submissions. The attributes referred to by both Mr Rigg and Mr IJ Hemmings (appearing with Ms A Hemmings for the Council) all relate to the second limb of the definition of "dwelling". Thus, in Townsend I observed the building will not be "so constructed or adapted as to be capable of being occupied as a separate domicile" by virtue of the absence of kitchen, bathroom and laundry facilities. The question of whether the building in that case would or would not be "occupied or used ... as a separate domicile" did not arise.
24 In considering the first limb of the definition the focus must be on the word "domicile". In Vic Vellar Nominees Pty Ltd Biscoe J held, at [32], that in this context "domicile" embodies the idea of a permanent home or a significant degree of permanency or occupation. Biscoe J cited a large number of authorities in support of this statement, including Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 at 153, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537 - 538, and KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; 148 LGERA 117 at [8] - [18], inter alia. I accept this as the concept of the word "domicile".
25 The question then becomes whether Mr Garton is occupying a room or suite of rooms as a separate domicile. The answer is obviously yes. He has lived in the building, apart from one break of about nine months, for the last 20 years. He does not live anywhere else, and has not done so for many years. There is nowhere else that he could call his domicile. He calls it his home. The place that a person uses as his domicile does not necessarily have to contain the facilities that one would normally find in a house. A person might have as his or her domicile a caravan, or even a tent, as long as it has a sufficient degree of permanency of habitation or occupancy. Accordingly, even if it could be said that Mr Garton is, and has been, doing no more than camping in a building which has no facilities, the degree of permanency of his habitation or occupancy makes it his domicile. Importantly, there is nowhere else which could be described as his domicile.
In a recent decision of this Court, Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council (No 2) [2012] NSWLEC 247 Lloyd AJ, considered whether rooms within a boarding house were dwellings and states:
9 The definition of "multi-unit housing" means that the proposed five self-contained ground level units fall within that definition. Each unit is constructed so as to be capable of being used as a separate domicile, having all the facilities that one finds in a dwelling, including a bathroom/laundry and a kitchen; and each unit has private access to ground level open space. The fact that the plans show a room described as "common area" (which is separately accessed from ground level) does not disqualify these units from coming within the definition of "multi-unit housing".
The matter was also considered by Cowdroy J in Mackenzie v Warringah Council [2002] NSWLEC 246 however in the context of whether a proposed boarding house was Category 1 or Category 3 development for the purposes of Warringah Local Environmental Plan 2000. The question before His Honour was to determine the category within which the land use would fall. In that case the uses considered were whether the boarding house would be defined as housing, short term accommodation or business premises as defined in that plan. The definitions differ from those that are included in LEP2005. At [26], His Honour concluded that,
The absence of any kitchenette or dining facilities in the rooms show that the use is essentially that of a hostel. The accommodation to be provided is suitable for use as transient or temporary accommodation. The development does not include the element of permanence of occupation necessary to sustain the concept of a "dwelling".
Having regard to the authorities, I am satisfied that, with the absence of kitchen facilities and the short-term nature of occupancy, the rooms within the proposed boarding house are not dwellings. Such a decision is not inconsistent with that of Lloyd AJ in Wollondilly and follows his conclusion in Abdo. In this case, the rooms will not be occupied on a permanent basis whereas the structure in the former case had been occupied for 20 years. I follow the line of authority that determines rooms without kitchens are not dwellings. Accordingly, the boarding house is not an apartment building. I accept the council's submission that, if consent is granted to the application, it is appropriate to limit the nature of facilities that can be installed within each room so that the full range of kitchen facilities is not installed. I am satisfied, from the plans of the development and the area available within each room, that this condition can be met.
It is then necessary that I determine whether the development is commercial premises. The definition contains a number of limbs, that is it could be a building or place used either as an office, for business purposes or for commercial purposes. The definition includes a provision that excludes those other uses defined in clause 5 and Schedule 3 to LEP 2005.
Office, business purpose and commercial purposes are not defined in LEP 2005. There is a definition of home business and office warehouse as follows:
home business means a business carried out, or partly carried out, in a dwelling (not being health care premises) or within the land on which the dwelling is situated, by the permanent residents of the dwelling, where:
(a) the business involves employment of not more than one person, at any one time, in addition to the permanent residents, and
(b) the business does not occupy a total floor area of more than 50m2, and
(c) the business does not:
(i) interfere with the amenity of the locality by reason of pollution, or
(ii) involve exposure to view from any public place of any unsightly matter, or
(iii) require the provision of any essential service main of a greater capacity than that available in the locality, or
(iv) involve the exhibition of any notice, advertisement or sign (other than a non-illuminated notice or sign, that would fit within a rectangle 1.2 metres in length and 0.6 metres in height, that is exhibited on that dwelling or land to indicate the names and occupations of the residents of the dwelling), or
(v) result in a significant increase in traffic, and
(d) the goods made or produced in the building, room or rooms, as a result of the business, are not displayed or sold from the property, and
(e) there is a maximum of one such business per dwelling.
office warehouse means premises used for the purposes of providing office floor space in conjunction with the handling, storage, display and distribution of goods.
The Macquarie Dictionary provides the following definition of office:
1. a room or place for the transaction of business, the discharge of professional duties, or the like: the solicitor's office.
2. the room or rooms in which the clerical work of an industrial or other establishment is done.
3. a room assigned to a specific person or group of persons in a commercial or industrial organisation.
The proposed development would not be a building or place used as an office.
A business is defined in the Macquarie Dictionary as being:
1. one's occupation, profession, or trade.
2. Economics the sale of goods and services for the purpose of making a profit.
3. Commerce a person, partnership, or corporation engaged in business; an established or going enterprise or concern: a clothing business.
4. volume of trade; patronage.
5. one's place of work.
6. that with which one is principally and seriously concerned.
7. that with which one is rightfully concerned.
13. be in business a. to earn a living from a commercial activity.
Commercial is defined in the Macquarie Dictionary as being:
1. of, or of the nature of, commerce.
2. engaged in commerce.
3. capable of returning a profit: a commercial project.
As warned by Bignold J in Crosland v North Sydney Council [2000] NSWLEC 165, the question of meaning of a term, in this case boarding house, is one of statutory construction in which dictionary meanings have a legitimate role but not a determinative role. It is appropriate that, in characterising the development, I consider what, according to ordinary terminology, is the appropriate designation for the purpose served by the use. This approach was reinforced by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 where he states:
27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.
In Mackenzie, Cowdroy J concluded that the particular establishment for which consent was sought in that case was either category 3 'business premises' or 'short term accommodation'. A definitive answer was not provided as the terms of his judgment went to the category of use rather than precise categorisation. I note that the decision in relation to the business premises was because services would be provided, these included cleaning services as well as shared kitchen and dining facilities.
I do not find that the boarding house is a building used or intended to be used for business purposes. No person will be carrying out their occupation, profession or trade within the building.
Whilst it will be built for the purpose of returning a profit, the primary purpose of construction is to provide short term residential accommodation to boarders. The fact that it, like the majority of projects that come before this Court, are intended to be capable of returning a profit does not, in this case, mean that it is a building that is used for commercial purposes. Further, it is not intended that any services in the form of cleaning will be provided to boarders, they will be responsible for the upkeep of their rooms and the common room (see clause 3.1o House Rules). These facts distinguish the case from Mackenzie.
For these reasons, I find that the boarding house is not commercial premises and is therefore an innominate use that would be permitted with consent under the provisions of LEP 2005.
Merit assessment
Having found that SEPPARH does not apply to the application, it must be assessed against the provisions of LEP 2005. In particular, clause 13(2) requires that consent must not be granted for development unless the Court is satisfied that the proposed development is consistent with one or more of the aims of the plan and any relevant objectives for development and is not contrary to achieving the objectives of the 2(a3) zone.
I am satisfied, on the evidence provided that, through the provision of affordable housing, it will achieve aim 1(c) and provide a diversity of land use in a safe, liveable community. I am also satisfied that the development will, as required by objective 2(a)(v) integrate with the local character of the locality. That character contains a mix of one and two storey multi-unit dwellings and, by its small footprint, all be it contained in the eastern portion of the site, will not be of a scale or density that is out of character with the local area, particularly having regard to the battle-axe subdivisions and multi-unit housing developments in close proximity to the site. In accordance with the planning principle in Project Venture, buildings can integrate with the local character without being the same. They do not have to have the same density, scale or appearance. For these reasons, I accept the evidence of Ms Laidlaw that the development is compatible with the character of the local area.
I also find that the development and building form is in character with the surrounding built environment and, as agreed by the town planning experts, does not detract from the amenity enjoyed by nearby residents. I do consider that it is appropriate to require the provision of the blade walls as described in [39] to ensure that there is no opportunity to overlook the property to the east from the upper floors.
The development is not inconsistent with the objectives of the zone and in particular also achieves the 2(a3) zone objectives outlined in 1(c) (i), (ii), (vii).
It is common ground that there are no specific development standards or controls that apply to a boarding house in LEP 2005 or any Development Control Plan adopted by the council. For this reason, whilst not applying to the site, I take guidance from the controls contained within SEPPARH. The parties agree that all of the relevant controls are met. That includes the size of rooms and open space areas. I am satisfied that the size of common areas and the facilities contained therein are adequate. In accepting Dr Stubbs' evidence that it would be desirable that kitchens were provided within each boarding room, the effect of that would be a change to the characterisation of the use to an apartment building and therefore, prohibited development. This is an unfortunate consequence of the planning controls.
Whilst the provisions of the amending SEPPARH relating to accessibility do not apply to the application, I consider that the proximity of the site to the Carlingford Shopping Centre is within reasonable walking distance. Whilst Dr Stubbs noted that the grades did not meet those specified in State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004 those provisions do not apply. The route was walked by the Court and parties and is not difficult nor does it take long to travel. The evidence also shows that there is a range of services provided within the centre or within 2k of the site that would meet the normal needs of boarders. Similarly, bus services are available and apart from Sundays (see below), services are regular, particularly during peak hours and provide services to both Parramatta and Epping. Train services are also available within reasonable walking distance though not within the 800m considered to be 'walkable'. For that reason, I am satisfied that the site is suitable for use as a boarding house.
After consideration of all evidence provided including those issues raised by the objectors, I am satisfied that the application should be approved.
Accessible area
If I am wrong in my findings in relation to the equivalent zone and the boarding house being permitted with consent as an innominate use under LEP2005, the parties have requested that I provide guidance in relation to the future application of the amending SEPPARH in terms of whether the site would be within an accessible area. That is to assist the applicant with any future application that may be lodged under the provisions of the policy to ensure a just, quick and cheap resolution to that application. My conclusions in relation to whether the aims and objectives of LEP 2005 and the 2(a3) zone objectives are such that I would conclude, based on the evidence provided, that the design of the development is compatible with the character of the area.
Any application lodged under amending SEPPARH for a boarding house on the land would have to demonstrate that the site was in an accessible area. At the time the application was lodged, this provision did not apply and, pursuant to the savings provisions does not apply to the application. I have however considered this matter in determining whether the site is suitable for the development without specific regard to the distances contained in the policy. Clause 4 of the policy defines that area as being:
accessible area means land that is within:
(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or
(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or
(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.
It is common ground that Carlingford railway station is the closest railway station and is further than 800m walking distance from the site. No light rail is available within the suburb so subclause (b) does not apply. It is agreed that there are two bus stops within 400m of the site that provide services that accord with the provisions of subclause (c) with the exception of the Sunday service. There are two bus stops within 400m of the site that provide bus services on a Sunday. One is Bus Stop 2118108 and is 300m from the site. Services on the 546 route run approximately every two hours from Epping to Parramatta, the first service being at 8.44am and the last one at 4.44pm. The second stop is Bus Stop 211875 and it is located 345m from the site. Bus route 546 runs from Parramatta to Epping also every two hours approximately. The first service is at 9.07am and the last one at 5.09pm.
It is clear from the details provided to the Court that there is not one bus stop within 400m of the site that provides hourly services on a Sunday to any one destination between the hours of 8am and 6pm. If a boarder needed to get to Parramatta for work, they would have to wait two hours between buses. The same situation applies if they wanted to get to Epping. The fact that when considered together, services to a destination, be it a different one, are available on an hourly basis, does not, in my opinion satisfy the requirements of clause 4. The clause also requires services to operate on an hourly basis from one bus stop starting with the period from 8am to 9am. Bus stop 211875 does not satisfy this requirement. Similarly, stop 2118108 does not have any service between 4.45pm and 6pm.
For the reasons outline above, I find that the site is not within an accessible area for the purposes of clause 4 of the amending SEPPARH. Such finding however has no bearing on my decision that consent should be granted to the application before the Court.
The conditions
Draft consent conditions were prepared by the council as Exhibit 8 and are agreed with the exception of conditions 47, 63 iii and iv, 73 and 77. Condition 47 requires the works to be completed in accordance with a BASIX certificate however the number of the certificate had not been included in the council's draft conditions. That is because such a certificate had not been obtained.
In accordance with clause 97A(2) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development. Accordingly, consent cannot be granted to a development that is a BASIX affected building without the imposition of a condition that requires fulfilment of the commitments listed in the certificate.
The applicant submits that a BASIX certificate is not required as the boarding house does not contain dwellings and is therefore not a BASIX affected building. Such building is defined in clause 3 of the Regulation as follows:
BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel.
As an alternate, the applicant has provided, as exhibit J, a BCA compliant Section J report. According to its author, the documents provide a thorough and comprehensive review of the energy, water and thermal efficiencies of the project and go beyond the requirements of the BCA and BASIX. The council did not provide any evidence to the contrary. Accordingly, I consider that condition 47 should be framed to reflect the commitments listed in the Section J report.
Conditions 63 iii and iv require the creation and registration of restrictions and positive covenants on the title of the land that require, for a 10 year period from the date an Occupation Certificate is issued, the dwellings/units be used for the purposes of affordable housing and the accommodation is managed by a registered community housing provider. Secondly, it is proposed to limit the number of bedrooms and the extent of any building works within those rooms. The wording of that condition relates to creation of the restriction on the title of each dwelling.
The applicant opposes the conditions and says that the boarding house will be privately managed and that there is no requirement within either of the SEPPARHs to limit the management or fee structure.
The first condition is similar to ones that I considered in Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029 where at [49-50] I stated:
49 The conditions sought to be imposed by the council that require registration of a restrictive covenant have been the subject of review by this Court. Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215, supports Mr Arch's proposition that it is unnecessary and inappropriate to impose a condition requiring a restrictive covenant in some circumstances. I agree that the provisions of the LEP are such that any change of use of the building would require consent and therefore do not consider the restrictive covenant provisions contained in conditions 99 or 127 are necessary however, it is appropraite to specify the use of the building and its purpose as a boarding house.
50 I also agree that it is a matter for the applicant whether it exercises its ability to obtain land tax exemptions and therefore link tariffs to those specific fees. Whilst it is important to ensure that the aims of SEPPARH are met, the policy does not contain any provisions in relation to boarding houses that limit tariffs whereas there are requirements that require infill development and supporting accommodation to provide affordable housing and the registration of a covenant to ensure compliance. In this case, market forces will determine the tariffs paid by lodgers and I do not consider that it is necessary that these tariffs should be linked to those set by the Office of State Revenue when assessing land tax.
There is no matter raised by the council that would distinguish this case from that considered in Revelop and accordingly condition 63 iii should be deleted.
As no strata subdivision of the building is proposed, it would not be possible to implement condition iv and I note that the provisions of SEPPARH prohibit the strata title or community title subdivision of boarding houses (clause 52). For that reason, the fact that the plans show the approved layout and therefore the number of rooms to be contained within the boarding house and, because the use is not commercial premises, consent would be required to alter the approved layout, condition 63 iv should be deleted and condition 13 amended.
Condition 73 relates to the adoption of a POM and Occupancy Agreement. The original condition proposed by the council adopted the documents prepared by the applicant and lodged with the application. These were appendices to Exhibit 8. As a result of Dr Stubbs' evidence, the council seeks to add a number of requirements to these documents. These include provision of information regarding the availability of services and transport; requiring the boarding house manager to have relevant (not specified) qualifications and experience; designated smoking areas and rooms, holding monthly house meetings; adoption of a process for resolution and monitoring of potential conflicts; grievance procedures; noise monitoring and the requirement that the council approves any changes to the POM and Occupancy Agreement. It also requires the occupancy agreement comply with the Boarding House Act 2012 and until such time as relevant sections are in force, use the Draft Model Boarding House Occupancy Agreement that was lodged.
Ms Ryan says the changes are not reasonable or required. The applicant did however agree that the plans and occupancy agreement should be prepared to reflect the requirements of the Boarding House Act 2012.
I accept, based on the evidence, that the POM as lodged does not contain sufficient provisions in relation to the management of resident disputes and ensure that residents are provided with fair and reasonable dispute resolution processes. These should be incorporated in the plan. Similarly, the issue of smoking areas should be clarified. I do not consider that it is necessary to establish qualifications or experience levels for the boarding house manager, that is a matter for the owner of the premises to ensure that the manager can operate the premises in accordance with all consent conditions. For that reason, it is appropriate to amend condition 73.
Condition 77 required a caretaker to be present onsite at all times 24 hours per day 7 days per week. The applicant proposes an alternate condition that a caretaker/relief caretaker is present on site at all times. I consider, given the size of the boarding house that a resident manager should be in place with a relief person available. Those persons should be on-site and be available to immediately address any issue that may arise.
Conclusion
Having found, based on the evidence available and considering those matters specified in s 79C of the EPA Act, that the development is permissible with consent as an innominate use in the Residential 2(a3) zone under the provisions of LEP 2005, that it is consistent with the aims of that plan and the objectives of the zone, and the site is suitable for use as a boarding house, consent should be granted subject to conditions that reflect my considerations outline above.
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development Application 1373/2011/HB for demolition of existing structures and construction of a two storey boarding house containing 33 rooms at Nos. 93-95 Baker Street, Carlingford is approved subject to the conditions contained in Annexure 'A'.
(3) The exhibits, other than exhibits B C and T, may be returned.
Sue Morris
Commissioner of the Court
ANNEXURE A
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Decision last updated: 02 April 2013
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