Sivathas v Cessnock City Council

[2020] NSWLEC 1296

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sivathas v Cessnock City Council [2020] NSWLEC 1296

Hearing dates:

9 July 2020

Date of orders:

14 July 2020

Decision date:

14 July 2020

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

See orders at [34] below

Catchwords:

DEVELOPMENT APPLICATION – consent orders – boarding house

Legislation Cited:

Cessnock Local Environmental Plan 2011

Environmental Planning and Assessment Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

Texts Cited:

Cessnock Development Control Plan 2010

Category:

Principal judgment

Parties:

Sharmini Sivathas (Applicant)
Cessnock City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/48676

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Development Application No. 8/2018/261/1 was lodged with Cessnock City Council (Council) on 3 May 2018 seeking consent for demolition of an existing dwelling and structures and construction of a two-storey boarding house containing twenty single boarding rooms, one manager’s residence, communal spaces and on-site parking.

2. Following a conciliation conference held on 5 November 2019 where I was the presiding commissioner, the applicant has prepared amended plans for which leave to amend the application was granted on 30 May 2020. Further details have been provided and leave sought by the applicant to rely on those plans and information.

3. The parties agree these plans address all of the contentions in the case and are seeking consent orders from the Court.

The site and its context

4. The property, known as No 6 Bridge Street, Cessnock, has a frontage of 20.115m, depth of 40.23m and site area of 809.4m². It is located on the northern side of the road between Cumberland and Kings Streets and is on the fringe of the Cessnock CBD.

5. The site is currently occupied by a single storey weatherboard dwelling with pergola and detached garage and two storage sheds, all of which would be demolished to allow redevelopment of the site.

6. Development to the east of this site comprises single storey detached dwellings with a single storey 4-unit residential flat building immediate to the west. On the opposite side of the road there is a building supply yard on the corner of Cumberland Street with residential dwellings further to the east. Further west on the opposite side of Cumberland Street is a motel, other commercial businesses hotel and civic buildings.

Background and the proposal

7. The original proposal has been modified to reduce the number of boarding rooms to 12, provides greater setback to the street and side property boundaries, increases the number of parking spaces provided within the parking area to 6, increases the area of private open space available to residents of the boarding house, alters the facade of the building and the general layout and configuration of the structure. The extent of excavation has been reduced which has led to the building height increasing with ramps introduced within the building to facilitate accessibility throughout.

8. The applicant has also updated its Plan of Management (POM) in response to the contentions raised by the Council regarding the adequacy of the original document. The Council is now satisfied with this document (Exhibit D).

9. Vehicle access to the site would be from a driveway that runs along the western side of the site servicing 6 undercover parking spaces. That driveway is setback 1.5m from the western boundary as required by the Council’s planning controls.

10. Provision for 3 motorbike spaces would be provided at the rear of the driveway with a further 5 bicycle racks provided behind those motorbike spaces. A ramp and stairs provide access to the main entry at the front of the building with three boarding rooms and a communal room on the ground floor. On the upper floor there are a further 9 boarding rooms and a smaller communal area. A lift provides access between each level of the building. The building is now setback a minimum of 5.0m from the front property boundary with landscaping provided which the Council finds acceptable.

The planning controls

11. The site is within Zone B4 Mixed Use pursuant to the provisions of Cessnock Local Environmental Plan 2011 (LEP). Development for the purpose of a boarding house is permissible with consent in that zone.

12. Clause 2.3(2) requires the consent authority to have regard to the objectives for development within the zone in which the development is to be carried out. The objectives of the B4 zone are:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

13. Clause 7.2 Earthworks is in the following form:

7.2   Earthworks

(1)  The objectives of this clause are as follows—

(a)  to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b)  to allow earthworks of a minor nature without requiring a separate development consent.

(2)  Development for the purposes of earthworks may be carried out only with development consent unless—

(a)  the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b)  the earthworks are ancillary to other development for which development consent has been given.

(3)  Before granting development consent for earthworks, the consent authority must consider the following matters—

(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development,

(b)  the effect of the proposed development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h)  any measures proposed to minimise or mitigate the impacts referred to in paragraph (g).

14. The applicant also relies on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Division 3 applies to boarding houses and provides for this form of development in the B4 Zone (cl 26(g)) with consent required (cl 28).

15. Clause 29 provides standards that cannot be used to refuse consent. The Council has provided an assessment of the application against those standards (Exhibit 4). This demonstrates that the development is compliant with those standards. There is no maximum floor space ratio or building height applicable to the site under the LEP. The Council is satisfied that the landscape treatment of the front setback area is compatible with the streetscape in the locality and that both of the communal areas will receive at least 3 hours of direct sunlight between 9am and 3pm in midwinter. As 45m² of private open space is provided, this exceeds the 20m² minimum required. The 6 onsite carparking spaces, 3 motorcycle and 5 bike spaces meet the relevant standards.

16. Pursuant to the POM, all rooms will be single rooms and are compliant and, in all cases, exceed the 12m² minimum however, when excluding the kitchen and bathroom facilities, do not exceed the 25m² development standard contained in cl 30(1)(b). Each boarding room has its own kitchen, bathroom and laundry facilities.

17. Clause 30A of SEPP ARH requires the consent authority to take into consideration whether the design of the development is compatible with the character of the local area. The Council originally contended that the design of the proposal did not satisfy this requirement however is now of the opinion that the amended design reflects in particular the character of the dwelling houses along Bridge Street and is therefore compatible with that local character.

18. Cessnock Development Control Plan 2010 (DCP) is a further matter for consideration in the assessment of the application. The provisions most relevant to the application are contained in Part C General Guidelines with a requirement for driveways to be located a minimum of 1.5m from side boundaries; the design of parking areas to facilitate forward movement of vehicles onto and from the site; design to account for people with disabilities and for social impact to be considered.

19. Part E of the DCP applies to Specific Areas and the site is located in area E16, the Cessnock Commercial Precinct. Relevant provisions are the building height control which provides for up to three storeys and up to 12m with an active street frontage preferred unless the site is in an area where forms of residential development are permitted, as is the case here.

The issues

20. The original contentions were that there was inadequate parking provided on site, the setbacks of the building were inadequate, the design of the building failed to address the character of the local area and did not provide adequate landscaping, the size of the boarding rooms were inadequate for the needs of future lodgers and inadequate amenity was provided for those persons. In addition, it was contended that the extent of excavation proposed was unknown and considered to be excessive and it had not been properly demonstrated whether the communal area would receive adequate solar access. The Council was critical of the original POM and the applicant had not provided the necessary BASIX certification.

The evidence

21. At the commencement of the hearing, the Council tabled letters from objectors to the proposal (Exhibit 2). The issues raised are the adequacy of information in relation to levels shown on the plans exhibited by the Council, the failure of the proposal to address the requirements of cl 30A of SEPP ARH, submitting the development is not compatible with the character of the area and inadequate area available on site for the manoeuvring of motor vehicles to allow forward entry and exit movements to and from the site.

22. The Council has now considered the amended plans and documentation and is satisfied that it is compliant with the relevant provisions of both the LEP, DCP and SEPP ARH. It considers the POM will ensure the boarding house operates in an appropriate manner with adequate provisions to address any issues that may arise.

23. A summary of the changes made is as follows:

• Increase in the front setback to Bridge Street to 5m;

• Reduction in the number of boarding rooms from 21 to 12;

• Increase in the number of onsite car parking spaces from 5 to 6;

• Changes to the roof form and window treatment to the northern and eastern elevations of the building to address privacy, overshadowing and solar access requirements;

• Reduction in the amount of excavation proposed;

• Communal areas redesigned and now achieve required solar access;

• Plan of Management has been updated;

• Change to the design of the façade of the building.

Conclusion and findings

24. Having regard to the evidence, I am satisfied that the development meets all applicable development standards and is consistent with the objectives of the Council’s LEP and DCP.

25. The Council has provided a Synopsis of Development Controls that demonstrate compliance with all relevant development controls. This table considers all of the standards which cannot be used to refuse consent and those that are jurisdictional matters. I have had regard to all of those controls and development standards and am satisfied that the proposed development meets those requirements.

26. For consent to be granted, I have had regard to the objectives of the B4 zone and am satisfied that the development would provide a mixture of compatible land uses, having assessed the local area at the site view and the range of uses in that locality. The integration of a boarding house in this accessible location would maximise any available public transport and encourage walking and cycling due to its proximity to the Cessnock commercial centre.

27. Having regard to those matters prescribed in cl 7.2 of the LEP, I have reference to the plans and in particular, the drainage plans and am satisfied that the terms of that clause are met and there is no reason to refuse consent on that basis.

28. As all of the standards in cll 29 and 30 of SEPP ARH are met, consent cannot be refused on that basis.

29. Clause 30A requires me to consider whether the design of the development is compatible with the character of the local area. That assessment was aided by the site view conducted at the commencement of the conciliation conference. The Council advises that no change to that character has occurred since that time.

30. The local area comprises, on the northern side of Bridge Street, a mix of residential buildings, a residential flat building to the west and single dwelling houses to the east. That residential character continues to the north. On the opposite side of the road is a mix of residential and commercial development.

31. The proposed boarding house is a two-storey building with a residential character. The planning controls provide for buildings up to three storeys in height and accordingly, the design of the building would not be out of character with that future character. I am also satisfied that it is compatible with the existing local character. That is because the development presents as a two-storey cottage with verandah on a building alignment consistent with that along the northern side of Bridge Street. Its design is residential in nature and despite being larger than existing dwellings within the locality, is not so large that it would be incompatible with that local character. It does not have to be the same to be compatible. For that reason, I am satisfied that the design of the development is compatible with the character of the local area.

32. Finally, I must have regard to those matters raised by objectors. The majority of issues have been addressed above. The amended plans address the levels and ramp grades and adequately address onsite vehicle manoeuvring. I am satisfied the proposed window treatment of the upper floor rooms will address privacy concerns. The reduction in the number of rooms to 12 should also address earlier concerns of persons in relation to social impact and I adopt the Council’s view that these impacts have been satisfactorily addressed and considered and are not reasons to refuse consent.

33. Having regard to the information and evidence before me I am also satisfied that the development is appropriate having regard to the relevant planning controls and legislation and that there are no jurisdictional matters that would prevent the orders sought should be made.

34. The orders of the Court are:

1. The applicant is granted leave to rely upon the following amended plans and documents:

Drawing No.	Title	Revision	Prepared by	Date
L000	Cover Page	G	Terras Landscape Architects	15/05/2020
L001	Master Plan	G	Terras Landscape Architects	15/05/2020
L002	Section	G	Terras Landscape Architects	15/05/2020
L003	Plant Materials	G	Terras Landscape Architects	15/05/2020
C01	Sedimentation and Erosion Control Plan	2	MPC Consulting Engineers	15/11/2019
C02	Sedimentation and Erosion Control Details	2	MPC Consulting Engineers	15/11/2019
C03	Stormwater Plan	2	MPC Consulting Engineers	15/11/2019
C04	Stormwater Details	2	MPC Consulting Engineers	15/11/2019
T01	Turning Path Entry and Exit Plans	1	MPC Consulting Engineers	15/11/2019
Document		Revision	Prepared by	Date
Arborist report		-	Area Tree Vet	01/07/2019

2. No orders as to costs except for the order made pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 on 1 May 2020.

3. The appeal is upheld.

4. Development Application No. 8/2018/261/1 for the demolition of existing structures and the construction of a 2-storey boarding house containing 12 rooms, communal living rooms and at-grade parking for 6 cars, 3 motorcycles and 5 bicycles with landscaping and associated works on the land at 6 Bridge Street, Cessnock is approved subject to the conditions set out in Annexure "A".

5. The exhibits, other than Exhibits A, D, F and 1, are returned.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (272784, pdf)

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Amendments

14 July 2020 - Spacing reduced between the signature line and orders. No substantive change to the Judgment.

Decision last updated: 14 July 2020