Vozzo v Ryde City Council

[2011] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vozzo v Ryde City Council [2011] NSWLEC 1363
Hearing dates:	7 December 2011
Decision date:	13 December 2011
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: Boarding house, SEPP Affordable rental housing 2009, conditions of consent, plan of management.
Legislation Cited:	Land and Environment Court Act 1979 Ryde Local Environmental Plan 2010 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Building Code of Australia
Category:	Principal judgment
Parties:	Vincent Joseph Vozzo (Applicant) Ryde City Council (Respondent)
Representation:	Mr S Laface AGL Legal (Applicant) Mr M Cottom Kells the Lawyers (Respondent)
File Number(s):	10301 of 2011

Judgment

1. This is a determination of proceedings under s 34(4)(b)(ii) of the Land and Environment Court Act 1979 . The appeal is made against the refusal of Development Application No LDA2010/506 by Ryde City Council. The application proposed internal and external modifications to an existing two storey dual occupancy development for use as a boarding house.

1. The proceedings commenced as a s 34 conciliation conference where the parties addressed the matters which were in contention and agreed on a form that the development could take that would satisfactorily address those contentions. The applicant has prepared plans that reflect those discussions and provides the necessary detail as to the extent of works and an updated Plan of Management (POM). Leave to rely on those amended plans was granted by the Court on 7 December, 2011 on termination of the conciliation conference.

1. The parties agreed that I determine the application on the basis of what had occurred at the conciliation conference as the council had not provided its staff with the necessary delegations to enter into an agreement pursuant to s 34(3). It is also necessary that I determine one of the conditions in dispute.

The site and its context

1. The site of the proposed development comprises lots 1 & 2 in SP51324, is known as No 36 Herring Road, Marsfield (the site) and is located on the northern corner of Blundell Street, having a frontage of 12.8 m and 30.785m to each road respectively and site area of 600.7 sq m.

1. The site contains a two storey building, originally constructed as a dwelling house and converted for use as a dual occupancy development in accordance with a consent issued by the council in 1994. That consent provided for one dwelling on the ground floor and the second dwelling on the upper floor accessed from an internal and external stairway.

1. Development in the vicinity of the site comprises detached dwelling houses with Kent Road public school opposite the site. Macquarie University is approximately 750m north-east, and within walking distance, of the site.

Background and the proposal

1. The site is currently being used for shared accommodation, such use being conducted without the consent of the council. The application was lodged with the council on 30 September 2010 and proposed use of the whole of the building as a boarding house, originally containing a total of ten boarding rooms, however the plans before the Court now propose nine boarding rooms, four on the ground floor and five on the first floor. Separate kitchens, living/communal areas and bathroom facilities are provided on each level and a communal laundry is on the ground floor. Parking for two cars is available in garages attached to the building and a cycle storage/parking area is provided adjacent to the garage sufficient to park two bikes and two scooters. Communal decks are proposed at the western end of the upper floor and eastern end of the ground floor accessed from the common rooms. In addition, an upper floor deck is available from rooms 8 and 9. Private open space is available in the rear yard and has an approximate area of 82 sq m.

1. The POM identifies that of the nine rooms within the proposed development, five would be single occupant rooms and four double occupant rooms with a capacity of thirteen boarders.

1. Works proposed involve internal alterations to the building to facilitate the installation of new kitchens and laundry areas. Other work is required to block up openings and alter stairs to ensure compliance with the Building Code of Australia (BCA). Considerable upgrading works are must be carried out to the building to ensure compliance with the BCA in terms of fire safety and include the construction of an additional stairway to provide an alternate exit from the upper floor. It is proposed to construct that stairway adjacent to the northern wall of the building. To address concerns of the council with regard to the additional bulk the proposed landing and stairway would contribute to the development and the privacy implications to the adjoining property, the suggestion of the respondent's town planner to remove the upper level verandah and reverse the stairs has been embraced by the applicant and that work reflected in the draft consent conditions.

1. The council refused the application on 26 July 2011 for the following reasons:

(1)   The application is not in the public interest.

(2)   Inappropriate development in a suburban area.

(3)   Commercial development in a residential area.

(4)   Issues with noise, amenity and parking.

(5)   Community opposition to this development.

(6)   The number of occupants is inconsistent wit the neighbouring area.

The planning controls

1. The site is zoned R2 Low Density Residential under Ryde Local Environmental Plan 2010 (the LEP). The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that the general low density nature of the zone is retained and that development for the purposes of dual occupancy (attached) and multi dwelling housing (attached) do not significantly alter the character of a location or neighbourhood.
• To ensure that new development complements or enhances the local streetscape.
• To maintain on sites with varying topography the two storey pitched roof form character of dwelling houses and dual occupancy (attached) developments.
• To ensure that land uses are compatible with the character of the area and responsive to community needs.

1. Boarding houses are permitted with consent in that zone. Pursuant to clauses 4.4(2) and 4.4A(1) of the LEP, the maximum floor space ratio for development for the purposes of a dwelling house or dual occupancy (attached) on the site is 0.5:1.

1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) also applies to the site and in particular Division 3 of Part 2. The aims of the SEPP 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.

1. Amendments made to the SEPP on 20 May 2011 are relevant to the application and, cl 54A has the effect of the application being considered against the controls that applied at the time the application was lodged with the exception of an additional consideration being that contained within cl 54A(3). That clause states:

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.

1. Division 3 of Part 2 of the SEPP requires consent must be obtained for use as a boarding house. Clause 29 provides standards that cannot be used to refuse consent if those standards are met and consent must not be granted to development unless the consent authority is satisfied that the standards contained in that clause are met (cl 30).

The issues

1. The contentions in the appeal are identical to the grounds of refusal of the application.

The evidence

1. The matter commenced on site on 29 August 2011 as a conciliation conference. It was apparent at the view that the plans lodged with the council did not reflect the internal layout of the building or the extent of works required to properly convert it to a boarding house. The conciliation conference was adjourned to allow the applicant the opportunity to prepare detailed plans and to address the works required to ensure compliance with the SEPP and the BCA. In addition, it was agreed that it would be appropriate for the applicant to prepare a POM, which would address the operation, use, and management of the boarding house in the event that consent was granted.

1. Following receipt of the amended plans, the parties experts met to discuss the suitability of works and whether, when completed, the requirements of the BCA, particularly in regard to emergency services, egress and fire safety would be met. It is now agreed that the building could be made to comply with all relevant requirements. The Court notes that considerable works are required to be undertaken before the building is suitable for use as a boarding house and accordingly, the council's position that the premises should be vacated to allow the works to take place is supported should consent be granted. In the event that consent is not obtained, or the site not vacated, it is a matter for the council to take separate action in relation to the current unauthorised use.

1. It is agreed by the parties that the standards for boarding houses prescribed in the SEPP are met.

1. With regard to the council's contentions, I address each of those.

Public interest/community opposition

1. The council says that the development is not in the public interest due to the number of submissions received. The applicant says that the application is in the public interest as it provides affordable housing in satisfaction with the aims of the SEPP.

Inappropriate development in a suburban area/occupancy inconsistent with the neighbouring area

1. The council contends the development is not appropriate in the suburban area. The applicant contends that use of land within the R2 zone as a boarding house is permitted with consent and that for that reason, is a use anticipated by the council to occur on the site.

1. With regard to occupancy of the building, the council says that the population of the building would increase however the applicant notes that the building is an approved dual occupancy development and contends that the maximum thirteen boarders would not be different from that which could be accommodated within the dual occupancy dwellings.

Commercial development in a residential area

1. Neither party provided evidence in relation to this contention. I note that a boarding house is a distinct land use contained with the LEP and as such would not fall within the definition of commercial premises . It is also a use that is anticipated within the residential zone and permitted with consent under the council's LEP and its permissibility reinforced pursuant to the provisions of the SEPP.

Issues with noise, amenity and parking

1. The council says that the additional persons residing in the boarding house and the fact that they are not related is likely to result in adverse amenity impacts, particularly in terms of amenity impacts. The applicant says that any potential impacts are addressed through the POM.

1. Parking is provided for two vehicles which is consistent with the controls contained within cl 29(2)(e) of the SEPP and if compliance is achieved, is a standard that cannot be used to refuse consent. In addition, the plans make provision for the on-site parking of motorcycles and bikes.

The character test

1. In addition to consideration of the quantitative standards prescribed in the SEPP, it is necessary to consider whether the design of the development is compatible with the character of the local area. In this regard, it is agreed that the local area is the immediate, low-density residential area within the visual catchment of the site. The dominant form of development within that area is detached single and two-storey housing interspersed with multi-unit housing.

1. The works necessary to facilitate the change of use of the building that would be readily observable from the public domain are limited to the construction of the additional fire stairway, alteration to stairways to ensure BCA compliance and the installation of a roller shutter door to access the bike parking area. The council is also seeking the installation of privacy screens and amendments to doors/windows to limit use of decks so as to control noise. It is satisfied that the reversal of the stairs to the northern boundary will overcome the privacy concerns to the adjoining property.

1. I consider that the extent of that work is such that it would not be readily discernable from a public place. The building would present as a two-storey dwelling house. Clause 54A(3) is specific in that it requires consideration of the design of the development only and requires consideration of whether that design is compatible with the character of the local area. I consider that this requires an assessment of the physical aspects of the built form only and does not extent to the issue of the use or nature of the use of that built form. It is apparent that the objections to the development have regard to the nature of the use rather than to the design of the development. Therefore, no consideration of the nature of the use is required under that clause. Usual amenity considerations under s 79C of the Act would apply.

The conditions

1. The parties do not agree on one condition and that is a condition that relates to works required to the open decks. The council require that the use of the front decks be restricted to the tenants of the adjoining rooms and that the areas be divided accordingly. The applicant objects to that condition.

1. The reasons the council requires this condition is to ensure that the use of the area is limited and does not result in excessive noise which would impact residents of the boarding house and also adjacent properties. The applicant proposes the areas to be communal open space. Those areas are not required to meet the minimum areas specified in the SEPP. That area is met within the rear yard.

Conclusion and findings

1. The application satisfies all of the quantitative controls contained within the SEPP and I consider that the design of the development, having the appearance of a detached, two storey dwelling house, is consistent and compatible with the character of the area. Conversion of the building to a boarding house is consistent with the aims of the LEP and the SEPP and for that reason, I find the application to be in the public interest.

1. The use of the site as a boarding house is permitted with consent under the LEP and this is an important factor and for this reason, I do not consider the council's position that it is an inappropriate form of development is made out, nor do I find the fact that the owner of the property will collect rent from boarders on a "commercial" basis to be grounds to reject the application.

1. For these reasons, I find that the application should be approved.

1. I wholeheartedly support the council's position in relation to the need to ensure the safety of occupants of the site and for that reason support the imposition of conditions that require the building and fire-safety works to be undertaken in a timely manner. The extent of those works is considerable and until such time as they are completed and certified to be fully compliant, occupation of the premises for the purpose of a boarding house should not be permitted.

1. The protection of amenity of both occupants and adjoining residents is an important consideration and for that reason, I accept the council's position and require the construction of the screens and the removal of external access to the ground level deck. The conditions of consent should accord to those proposed by the council and also require the amendment to the POM to restruct the times that the communal areas can be used to between 8am and 10pm daily.

Orders

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. LDA2010/506 for internal and external modifications to an existing two storey dual occupancy development at No 36 Herring Road, Marsfield for use as a boarding house is approved subject to the conditions in Annexure A.

Sue Morris

Commissioner of the Court

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Decision last updated: 16 December 2011