Samir Alzaidi v Campbelltown City Council

[2018] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:	Samir Alzaidi v Campbelltown City Council [2018] NSWLEC 1051
Hearing dates:	24 January 2018
Date of orders:	14 February 2018
Decision date:	14 February 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The appeal is upheld. (2) Development application 1088/2015/DA-MAH for demolition of existing structures and construction of a two storey boarding house containing 18 boarding rooms, with communal laundry and common open space, four car parking spaces, including one accessible space, and four bicycles/motorcycle spaces, at 33 Colonial St, Campbelltown, is approved, subject to conditions attached as Annexure ‘A’. (3) The exhibits are returned, with the exception of Exhibits 3 and A.
Catchwords:	Development Application: boarding house; no stopping zone; waste collection.
Legislation Cited:	Campbelltown Local Environment Plan 2002 Campbelltown Local Environment Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy Affordable Rental Housing
Texts Cited:	Campbelltown Development Control Plan 2014 Campbelltown Development Control Plan 2015
Category:	Principal judgment
Parties:	Samir Alzaidi (Applicant) Campbelltown City Council (Respondent)
Representation:	Counsel: M. Staunton (Applicant) A. Seton (Respondent)   Solicitors: Wilshire Webb Staunton Beattie Marsdens Law Group
File Number(s):	2016/299387
Publication restriction:	Nil

Judgment

Background

1. COMMISSIONER: Samir Alzaidi (the Applicant) has appealed a decision of Campbelltown City Council (the Respondent) to refuse his development application 1088/2015/DA-MAH for the demolition of existing structures and construction of a two storey boarding house containing 18 boarding rooms, with communal laundry and common open space, four (4) car parking spaces, including one accessible space, and four (4) bicycles/motorcycle spaces, at 33 Colonial St, Campbelltown (the Subject Site). The development application was lodged on or about 8 May 2015.

2. The appeal is made pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. The Subject Site is located a short distance from several schools, including St Patrick’s College, in St Johns Rd, Campbelltown, and St Thomas Moore Primary School, which was located behind the College, off St Johns Rd.

4. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 2 February, 9 March and 30 March 2017. The Parties were unable to resolve their contentions during the s34 conciliation, and so the conciliation process was terminated and the matter set down for hearing under s34C of the LEC Act.

5. The Applicant had been granted leave by the Court to rely on amended plans on 20 December 2017.

6. An inspection of the Subject Site was undertaken at the commencement of the hearing. During the view, submissions were received from the following objectors:

1. Ms Mary Pinn, a resident of Colonial St, who expressed concerns in relation to the collection of rubbish from the proposed boarding house, and risks associated with local traffic movements and the parking of vehicles at the front of the Subject Site.

2. Ms Marie Westhall, on behalf of Ms Victoria Waldron-Hahn, a resident of Colonial St, who said that the proposed development was, in the opinion of Ms Waldron-Hahn, an overdevelopment of the Subject Site. She noted that Ms Waldron-Hahn had prepared a written submission in which she had noted specific concerns in relation to the collection of rubbish, the proposed location of the bin storage room, and the size of eaves proposed for the boarding house. She had also noted that the proposed increase in the size of a rear communal veranda would have some benefit within the development.

3. Ms Tessa Gooch, on behalf of Ms Sue Lennox, the Principal of St Patricks College, who said that the school’s principle concerns were for the safety of students and the management of traffic in relation to the proposed development. She noted that during school zone hours there was considerable traffic in the area associated with the drop-off and pick-up of students.

4. Mr Mario Majarich, representing parents of students at St Patrick’s College, who raised concerns associated with safety and security around the proposed development, its alignment with the character of the local area, and its suitability in relation to the controls for boarding house in the Campbelltown Development Control Plan.

5. Mr Brian Potter, a resident of St Johns Rd, who raised concerns in relation to parking and traffic impacts, and the Subject Site’s suitability for development given its proximity to school drop-off and pick-up locations.

Statutory context

Environmental Planning and Assessment Act 1979

7. The Environmental Planning and Assessment Act 1979 (EP&A Act) Section 79C(1) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.”.

8. Section 79C(3A) Development Control Plans further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

State Environmental Planning Policy (Affordable Rental Housing) 2009

9. The proposed development is for construction of a boarding house and so requires consideration under Part 2 Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

10. The aims of SEPP ARH are:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

11. Under cl8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevail to the extent of the inconsistency.

12. Under cl29 of SEPP ARH, the instrument provides standards that cannot be used to refuse consent for developments the subject of the SEPP, as follows:

29 Standards that cannot be used to refuse consent

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

(b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

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

(a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,

(b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,

(c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(d) private open space if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(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,

(f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:

(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or

(ii) 16 square metres in any other case.

(3) 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.

(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

13. SEPP ARH cl30 provides standards for boarding houses, as follows:

(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) (Repealed)

(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.

(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.

14. SEPP ARH cl30A requires that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Campbelltown Local Environment Plan 2015

15. Development on the Subject Site is subject to the provisions of Campbelltown Local Environment Plan 2015 (CLEP 2015), under which the Subject Site is zoned R2 Low Density Residential.

16. However, a savings provision within that document (cl1.8A) requires that any development application lodged prior to 11 March 2016, the date at which that instrument entered into force, and which had not been determined by that date, must be determined as if CLEP2015 had not commenced.

17. Consequently the applicable environmental planning instrument applicable to the assessment of the proposed development is Campbelltown Local Environment Plan 2002.

Campbelltown (Urban Area) Local Environment Plan 2002

18. Under Campbelltown (Urban Area) Local Environment Plan 2002 (CLEP 2002) the Subject Site is zoned 2(b) Residential B Zone, the objectives for which are:

(a) to make general provision for land to be used for housing and associated purposes, and

(b) to permit the development of a range of housing types, and

(c) to encourage a variety of forms of housing that are higher in density than traditional dwelling houses, including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities, and

(d) to allow the carrying out of a reasonable range of activities from dwellings, where such activities are not likely to adversely affect the amenity of the locality, and

(e) to allow development which:

(i) is compatible with residential use, and

(ii) is capable of visual integration with the surrounding buildings, and

(iii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and

(iv) does not place demands on services beyond the level reasonably required for residential use.

19. The statement of objectives for land zoned 2(b) also says that:

Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

A further objective of this zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.

Campbelltown Development Control Plan 2015.

20. Development on the Subject Site is subject to the provisions of Campbelltown Development Control Plan 2015 (CDCP 2015) which applies to land within the Campbelltown LGA where the Campbelltown Local Environmental Plan 2015 (the CLEP) applies. CDCP 2015 includes guidance within section 17 for boarding house development.

21. However, as a consequence of the savings provisions within CLEP 2015 discussed at [15], and the fact that the application for the proposed development was lodged before CLEP 2015 came into force on 11 March 2016, assessment of the application is subject to the provisions of Campbelltown (Sustainable City) Development Control Plan 2014 (CDCP 2014) which was effective between 12 August 2014 and 10 March 2016.

Campbelltown (Sustainable City) Development Control Plan 2014

22. Campbelltown (Sustainable City) Development Control Plan 2014 (CDCP 2014) came into force from 12 August 2014, and inter alia, provides more detailed provisions to supplement CLEP 2002.

23. The following elements of CDCP 2014 are of relevance to the current application:

1. cl2.5 which provides guidance on landscaping of proposed developments;

2. cl2.8 which provides guidance on the management of cut and fill on development sites;

3. cl3.3.1 which provides guidance on the design of proposed developments in relation to streetscapes;

4. Cl3.3.2 which provides guidance on building height for proposed developments.

Contentions

24. At the commencement of the hearing the Parties advised that the planning experts, Mr Joseph Vescio for the Applicant and Mr Gerard Turrisi for the Respondent, along with the traffic experts, Mr Craig McLaren for the Applicant, and Mr Geoff Higgins for the Respondent, had reached agreement in relation to most contentions between the Parties, and that conditions of consent had been drafted to reflect the recommendations agreed by these experts.

25. The Parties also confirmed that the principal unresolved contentions remaining related to:

1. the management of parking in the vicinity of the proposed development, and its implications for collection of waste from the proposed development. The Parties advised that this contention had been resolved through the Applicant’s acceptance of a no stopping zone for the length of the Subject Site on Colonial St and extending for a further 5m to the north of the Subject Site boundary;

2. the size of a proposed rear ground floor terrace. The Respondent advised that following review of the plans for the proposed development, this matter was no longer pressed as amendments to the design of this structure, including screens to mitigate noise and visual impacts, had addressed the Respondent’s concerns;

3. the retention or otherwise of the proposed ‘Room 4’ on the lower ground level of the proposed development. The Respondent advised that following review of the plans for the proposed development, this matter was also no longer pressed.

26. The Respondent drew the Court’s attention to the assessment report of the proposed development prepared by officers of Campbelltown City Council and dated 12 May 2015 which had concluded that:

Having regard to the matters for consideration under s79C of the EP&A Act and the issues raised above, it is considered that the application is consistent with the relevant statutory planning requirements.

The application is fully compliant with the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 and Campbelltown (Urban Area) Local Environmental Plan 2002 and Campbelltown Local Environment Plan 2015. While the residential development provisions of Campbelltown (Sustainable City) Development Control Plan 2014 do not strictly apply to the proposed development, it is largely consistent with the development standards for dwellings specified therein.

The proposal does not satisfy Council’s waste management requirements and would adversely affect traffic within the local road network with garbage trucks collecting the garbage. It is considered that the proposed development would need to be reduced in size to be able to accommodate the required garbage bins however there is still the issue of the no stopping area along the curb and how will work with garbage trucks.

27. They confirmed that:

1. the issue identified by Council concerning the collection of waste from the proposed development had been resolved through the Applicant’s acceptance of a condition of consent requiring the establishment of the no stopping zone discussed at [25(1)].

2. the Parties had reached agreement on conditions of consent that reflected the outcomes agreed between the planning and traffic experts, and which, if approved, resolved all remaining contentions between them, including the acceptability of the proposed development in terms of the objectives and provisions of the all applicable planning instruments.

28. Specifically, the Parties confirmed that, if the proposed development as represented by the amended plans were to be approved with the conditions of consent agreed, the approval would be compliant with:

1. the provisions of SEPP ARH, including:

1. cl26, which provides that SEPP ARH applies to land in zone R2 Low Density Residential. Under CLEP 2002 the Subject Site is zoned 2(b), which is the equivalent zoning to land zoned R2 under CLEP 2015;

2. cl27(1), which provides that SEPP ARH applies to development for the purposes of a boarding house, and cl27(2), which says that the SEPP only applies to land zoned R2 (or equivalent zoning) if it is within an accessible area. The proposed development is for a boarding house and is within an accessible area as defined under cl4(1)(c) of SEPP ARH;

3. cl29, which provides standards that cannot be used to refuse consent. The proposed development is compliant with respect to all relevant standards under that clause including building height, landscaped area, solar access, private open space, and parking;

4. cl30, which provides standards for boarding houses. The proposed development is compliant with all relevant standards established under this clause;

5. cl30A, which requires that a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

1. Having reviewed the plans for the proposed development, and in particular its presentation to Colonial St, I concur with the view of the Parties that it is compatible with the character of the local area.

2. the provisions of CLEP 2002 (which, as discussed at [15], due to savings provision within cl1.8A of CLEP2015 is the plan that applies to the assessment of the proposed development), including:

1. cl9, which

1. provides the definition, objectives and permissible uses for land, including the Subject Site, that is zoned 2(b) (Residential B Zone); and

2. requires that consent must not be granted for development unless the consent authority is of the opinion that carrying out of the proposed development would be consistent with one or more of the objectives of the zone. The proposed development is consistent, in my opinion, with the following objectives for land zoned 2(b) Residential B Zone:

(a) to make general provision for land to be used for housing and associated purposes; and

(e) to allow development which:

(ii) is capable of visual integration with the surrounding buildings, and

(iii) serves the needs of the surrounding population without conflicting with the residential intent of the zone.

3. the provisions of CLEP 2015 (which while not in force at the time that the development application was lodged should be given weight as it was an exhibited environmental planning instrument at that time), including:

1. that a boarding house is a permissible use on land zoned R2, Low Density Residential, which is the zoning that would apply to the Subject Site under this plan;

2. cl4.3, which provides height controls for the Subject Site. The proposed development is compliant with the 8.5m height control applicable to the Subject Site;

3. cl 4.4, which provides floor space ratio (FSR) controls for land to which the plan applies. While no FSR control is specified within the plan for boarding houses on land zoned R2, the FSR control for dwelling houses on the Subject Site is 0.55:1 and the proposed development is compliant with that control.

4. the provisions of CDCP 2014, including:

1. cl2.5 Landscaping. The amended landscape plans for the proposed development address the requirements of this clause, the objectives of which are to:

• maintain and rehabilitate the natural environment and assist in the conservation of Campbelltown’s landscape character;

• provide landscaping that complements the scale of the development;

• enhance the appearance of development.

2. cl 2.8 Cut and Fill, which requires that for any dwellings within residential zones, the maximum level of cut and feel shall not exceed 1.0m below the ground level (existing) and the maximum level of fill shall not exceed 1.0m above ground level (existing) when measured at any corner of the building platform. In relation to this:

1. the proposed development exceeds this control in relation to one of the proposed 18 rooms in the boarding house. That room (Room 4) will have a cut level of around 2 m against one wall;

2. as a consequence of the slope of the Subject Site, this cut level will taper to a level within compliance along the rear of the boarding house building;

3. the Parties agreed that, notwithstanding this exceedance, the proposed development, including that portion adjacent to Room 4, was consistent with the achievement of the objectives for cut and fill under cl2.8 of CDCP 2014, which are to:

• minimise the extent of earthworks associated with development;

• ensure that property appropriately responds to site conditions with proper consideration given to land capability and privacy/amenity of adjoining properties;

• ensure that excavation is minimised and properly retained;

• ensure that adequate freeboard is provided to protect development from overland flows and flooding.

4. consequently, the Parties submitted, and I agree, that, as required under the provisions of s79C(3A), the consent authority or the Court on appeal, should to be flexible in applying the cut and fill standard under CDCP 2014, and the exceedance of the cut and fill control should not be a reason for refusal of consent in the circumstances of this appeal.

3. cl3.3.1 Streetscaping. The proposed development is consistent with the design requirements of this section, in particular:

1. the building design, setbacks and landscaping do complement the scale of development, character and qualities of the desired streetscape;

2. the built form does relate to the natural landform and setting.

4. cl3.3.2 Building Height, which provides that a residential development shall not exceed two storeys and have a building height not exceeding 9.5m. In relation to this:

1. the building height is compliant with the 9.5m control in this section of CDCP 2014;

2. the building form, as it presents at the front and rear of the proposed development, is predominantly two storeys in appearance;

3. a section of the proposed development at the centre of the building does have a three storey built form which would not be perceived from the street or neighbouring properties;

4. the Parties agreed that, notwithstanding this exceedance, the proposed development, including that portion building that would have a three storey form, was consistent with the achievement of the objectives for height under cl3.3 of CDCP 2014, which are to:

• ensure that the massing and scale of new development are complementary to the existing and desired residential buildings in the neighbourhood;

• maintain a low-medium density spatial character within existing neighbourhoods;

• ensure that buildings are designed to enhance the existing and future desired built form and character of the neighbourhood by encouraging innovative and quality designs that fit harmoniously with their surroundings;

• ensure the provision of equitable access to natural light and ventilation the occupants of all residential buildings.

5. consequently, the Parties submitted, and I agree, that, as required under the provisions of s79C(3A), the consent authority or the Court on appeal, should to be flexible in applying building height standard under CDCP 2014, and the exceedance of the height control should not be a reason for refusal of consent in the circumstances of this appeal.

29. The Respondent noted that the agreements of the planning and traffic experts had fully addressed the submissions made by objectors, including those made during the on-site inspection at the commencement of this hearing as well as those made within submissions received in response to the notification and exhibition by Council of the modification application.

30. The Respondent submitted that, as a consequence of the above considerations, approval of the development application, with conditions, was in the public interest.

Conclusion

31. Based on the above, I am satisfied that:

1. the submissions made by objectors concerning the proposed development have been addressed through adoption of the agreed recommendations of the traffic and planning experts, and their incorporation the proposed conditions of consent for the development;

2. the requirements of s79C(1) of the EP&A Act have been addressed including the provisions of SEPP ARH, CLEP 2002, CLEP 2015 and CDCP 2014;

3. the potential impacts of the proposed development have been considered and addressed the amended plans and proposed conditions of consent.

32. I conclude that approval of development application 1088/2015/DA-MAH, subject to the conditions of consent agreed by the Parties, is in the public interest, and the proposed development should receive development consent.

Orders

33. The Orders of the Court are:

1. the appeal is upheld;

2. Development application 1088/2015/DA-MAH, for the demolition of existing structures and construction of a two storey boarding house containing 18 boarding rooms, with communal laundry and common open space, four car parking spaces, including one accessible space, and four bicycles/motorcycle spaces, at 33 Colonial St, Campbelltown, is approved, subject to the conditions attached as Annexure ‘A’;

3. the exhibits are returned with the exception of Exhibits 3 and A.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (215 KB, pdf)

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Decision last updated: 14 February 2018