Warlam Pty Ltd v Marrickville Council - [2009] NSWLEC 23

Reported Decision: Notice of Intention to Appeal filed 3/4/09
165 LGERA 184

Land and Environment Court

of New South Wales

CITATION: Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23

PARTIES:
APPLICANT:
Warlam Pty Ltd
RESPONDENT:
Marrickville Council

FILE NUMBER(S): 10623 of 2008

CORAM: Biscoe J

KEY ISSUES:
EXISTING USE :- Principles of existing use rights – whether development application proposed that existing use for a boarding house be developed into a different use for a prohibited residential flat building – whether proposed development an evolution of existing use or an enlargement, expansion or intensification of existing use within cl 41(1) of the Environmental Planning and Assessment Regulation 2000 – whether council estopped from denying that proposed use was for purpose of a boarding house
Estoppel – whether council estopped from denying that proposed development, the subject of a development application, was for the purpose of a boarding house.
Development Consent - existing use, parking and drainage considerations.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 76B, 79C, 106, 107, 108, Pt 4 Div 10
Environmental Planning and Assessment Regulation 2000, cl 41
Marrickville Local Environmental Plan 2001
State Environmental Planning Policy No 10 – Retention of Low-Cost Rental Accommodation, cl 7(4)(e)

CASES CITED: Adelaide Caravan Park Pty Ltd v Department of Industry, Technology and Commerce (1985) 7 ALD 756
Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGERA 151
Blair v Curran (1939) 62 CLR 464
Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502
Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519
Dorrestijn v South Australian Planning Commission (1984) 54 LGRA 99
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57
Holidays - A - Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127
Honig v Redfern [1949] 2 All ER 15 (1949) 47 LGR 447
Karmel & Co Pty Ltd (As Trustee for Urbanski Property Trust) v Federal Commissioner of Taxation [2004] ATC 2075
Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731
Ku-ring-gai Municipal v Minister for Planning [2008] NSWLEC 174
Mackay v Newcastle City Council [2007] NSWLEC 377
New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278
Roberts v Waverley Municipal Council (1988) 14 NSWLR 423
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O’Keefe (1964) 110 CLR 529
Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710
Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253
Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589

DATES OF HEARING: 2, 3 and 4 March 2009

DATE OF JUDGMENT:
19 March 2009

LEGAL REPRESENTATIVES: APPLICANT:
Mr A. Galasso SC
SOLICITORS:
Sattler & Associates Pty Ltd

RESPONDENT
Mr I. Hemmings
SOLICITORS:
Corrs Chambers Westgarth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

19 March 2009

10623 of 2008

WARLAM PTY LTD v MARRICKVILLE COUNCIL

JUDGMENT

1 HIS HONOUR: This is a merit appeal against Marrickville Council’s refusal of Warlam Pty Ltd’s development application for the demolition of a large part of a residential building and the construction of a replacement residential building at 100 Wardell Road, Marrickville. Since the appeal was instituted, the applicant has amended its plans for the proposed development.

2 There are four issues (all other issues having been satisfactorily resolved between the parties):

(a) whether, as the council contends, consent cannot be granted for the proposed development because it is for the purpose of a prohibited residential flat building;

(b) whether, as the applicant contends, the council is in any event estopped from denying that the proposed development is for the existing purpose of a boarding house (which attracts existing use rights), or whether that issue is res judicata;

(c) whether the number of parking spaces to be provided on the site is acceptable;

3 I acknowledge the assistance of Senior Commissioner Moore.

The Existing and Proposed Developments

4 The site is rectangular with front and rear boundaries of just over 15 metres and side boundaries of about 61 metres. The existing development mainly comprises a two storey building in which are located 11 residential rooms, a communal shower and toilet on the ground floor, and a communal kitchen, shower and toilet on the first floor. A small single storey building to the rear contains a twelfth residential room and a communal toilet and laundry. There is a substantial area of lawn to the rear of the site. There is informal parking for three cars at the front and an informal driveway along the southern side.

5 In 1976, the council approved a building application for the subject land that it described as “proposed renovations to lodging house”. The approved plan indicated that some rooms already had kitchens and the council approval included approval for other rooms to have kitchens. Following that approval and some evolution of the use, 6 of the 12 residential rooms have full kitchens. A seventh residential room has a kitchen bench with a sink, bar fridge and microwave with cooktop. The eighth and ninth residential rooms have a fridge and microwave. The tenth and eleventh residential rooms have a bar fridge. The twelfth residential room has no such facilities.

6 The proposed development is for a two storey building with 14 residential single or double rooms, a manager’s flat, a communal living room and a communal kitchen on the ground floor, a smaller communal living area on the first floor, and one car space. The rooms vary in size between 15.9 square metres and 35.6 square metres. Each residential room (and the manager’s flat) has an ensuite shower and toilet and a kitchenette. The majority of the rooms are large enough for a double bed, a lounge and a dining table.

7 Valuation evidence indicates that the average rental per room will increase from $142 at present to $209 for the new development. However, the latter figure seems a little overstated as it does not take into account that under one of the agreed conditions of consent the tariffs for at least three of the rooms are to be no more than $194 per week.

8 The Department of Planning concurred in the development application pursuant to State Environmental Planning Policy No 10 – Retention of Low-Cost Rental Accommodation, subject to specified satisfactory arrangements for the protection of current tenants forced to leave the premises primarily due to the proposal. The Department determined that the proposal would not result in a cumulative impact under cl 7(4)(e) of the Policy. Clause 7(4)(e) requires consideration of whether the cumulative impact of the loss of low-rental residential accommodation in the council’s area will result in a significant reduction in the stock of that accommodation.

Is the Proposed Development Prohibited?

9 Section 76B of the Environmental Planning and Assessment Act 1979 (EPA Act) mandates that a person must not carry out development on land if an environmental planning instrument provides that specified development is prohibited on the land. The subject land is zoned Residential 2(A) under the Marrickville Local Environmental Plan 2001 (LEP). By cl 10 of the LEP, development permissible with consent in that zone includes “Boarding houses containing not more than ten residents”. The LEP prohibits all other development relevant to the applicant’s development application. The existing development, which the council contends is a boarding house, has 12 rooms which accommodate more than 16 residents. The proposed residential development, which the council contends is a residential flat building, has 14 rooms to accommodate 20 residents. Accordingly, the existing development and the proposed development, whatever their correct characterisation, are prohibited under the provisions of the LEP.

10 However, as is common ground, the existing development is permitted under the existing use provisions in Part 4 Division 10 (ss 106 – 109B) of the EPA Act. Section 106 relevantly defines an “existing use” as “the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of Part 4, have the effect of prohibiting that use…” Section 107(1) provides that, except where expressly provided by the EPA Act, “Nothing in this Act or an environmental planning instrument prevents the continuance of an existing use”. Section 108 authorises regulations to be made respecting use. Under cl 41(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) an existing use may “be enlarged, expanded or intensified”. Under cl 41(1)(b), an existing use may be “altered or extended”. No authority has addressed the meaning of paragraph (b), but it must be different from paragraph (a). Paragraphs (a) or (b) may or may not be viewed as including the notion of “evolution” of an existing use which has been held, without reference to any statutory provision, to be permissible: Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57 at [61]. Evolution in this context does not include evolution into a different use. The analogy of an ape evolving into man is unsound in existing use law since man is a different species. Clause 41(1)(d) provides that an existing use “may be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act”. Neither cl 41(1) nor evolution permits a different residential use that is prohibited. Thus, if, as the applicant contends, the proposed development is only an evolution of and/or only enlarges, expands or intensifies the existing use, it is permissible with consent. Otherwise it is prohibited and consent cannot be granted to the development application.

11 The development application stated that the existing development and the proposed development were both boarding houses. In these proceedings the applicant contends that whatever the correct characterisation of the existing use – whether as a boarding house, a residential flat development, a residential building or an innominate use – the development application is partly evolutionary in increasing the number of kitchens to be present in all rooms, and partly an enlargement, expansion or intensification of the existing use by increasing the number of rooms and the footprint of the building. The applicant submits that the characteristics of its proposed use are more aligned to the notion of a boarding house because:

(a) the rental of some of the domiciles is capped;
(b) the residents are subject to a licence agreement as a boarding house;
(c) there is a management plan and house rules;
(d) boarding rooms will not be separately metered;
(e) there is a manager in residence on-site;
(f) there is a common kitchen and common rooms; and
(g) this is not also an application for strata subdivision.

12 The council contends that the existing development is a boarding house for more than ten residents, and that the proposed development is a residential flat building for which development consent cannot be granted because it is a prohibited use under the LEP and is not the evolution or the alteration, expansion or enlargement of the existing use.

13 The council has proposed conditions of consent, which are largely agreed between the parties, subject to resolution of the outstanding issues.

14 The controversy between the parties on the prohibited development issue boils down to the council’s proposed conditions 4 and 5:

“4. No stove, oven, cooktop or dishwasher to be installed within any of the rooms of the boarding house excluding the common kitchen.

15 The applicant opposes those two proposed conditions and proposes the following substitute condition 4, which the council opposes:

One single bowl sink
One single drawer dishwasher
One two burner hotplate
One rangehood
One microwave oven
One refrigerator (Maximum volume of 430L),

And may also contain within the tenancy room a combined washing machine/dryer.”

16 The council argues that its conditions 4 and 5 are necessary to maintain the use of the proposed development as a boarding house. The council says that these conditions are a minimal reasonable method of ensuring that the rooms do not become domiciles, in the sense of being fully self-contained, and that this is the point of distinction between a boarding house and a residential flat building.

17 Characterisation of the purpose of an existing use and the purpose of a proposed use are governed by the principles reviewed by the Court of Appeal in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309 – 311 and Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57 at [56] – [69]. The leading High Court Decision is Shire of Perth v O’Keefe (1964) 110 CLR 529 (followed by the High Court in Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 145-146, Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 and Dorrestijn v South Australian Planning Commission [1984] HCA 76 (1984) 59 ALJR 105, (1984) 54 LGRA 99). Other leading Court of Appeal decisions include North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 535, and Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710.

18 I would summarise the existing use principles, so far as may be relevant, as follows:

(a) existing use provisions in planning legislation are designed to permit continuation of a use of land for the purpose for which it was used immediately before later regulation that prohibited it wholly or partly or upon conditions. The rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose: Royal at 309; Grace at [56];
(b) accordingly, existing use provisions should be as liberally construed as the language in its context allows: Dorrestijn at 105; Grace at [67];

(c) in order to reconcile the right of the owner to use land for an existing purpose with the right of the local authority to enforce the conflicting objectives of planning legislation, the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless. Likewise, the courts refuse to categorise the purpose of an existing use so widely that land or premises could be used for a prohibited purpose that was not part of its use at the time of commencement of the prohibiting regulation. Accordingly, a test has been devised which requires characterisation of the purpose of the land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. The test is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land: Royal at 309-310;

(d) a statement of the purpose for which land is being used is a description or characterisation of what is being done with or upon the land, not an account of the motives of the persons involved in that activity: Shire of Perth at 534. Royal at 311, Woollahra at 714;

(e) land may be used for more than one purpose. If activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then the genus may properly be regarded as describing the purpose of the use. If they are not, then the only conclusion may be that the land has been used for more than one purpose: Royal at 311; Grace at [59];

(f) the task is always to categorise the purpose (or each purpose) to which premises have been put: Grace at [60];

(g) that involves an inquiry into what, according to ordinary terminology, is the appropriate categorisation of the purpose of the use. A useful criterion to apply is that which would appeal to practical minds as appropriate in the context of town planning legislation: Shire of Perth at 535; Pioneer at 507-508;

(h) in determining whether a use is protected by existing use provisions, there are two distinct steps. First, identify the purpose for which land was being used as at the date of the later planning regulation which prohibited that use. The land may continue to be used for that purpose. Secondly, identify whether the use of the land thereafter is generally for the same purpose: Royal at 311;

(i) the design or form of a building is not determinative of its use. For example, a building might be constructed of units which are capable of residential use. But if the units are used for professional offices, the use would not be a residential flat building: North Sydney Municipal Council v Sydney Serviced Apartments at535;

(j) categorisation of uses is a matter of fact and degree and borderline cases will inevitably arise: Shire of Perth at 535;

(k) a use can naturally evolve over time and changes in the method of operation of a particular category of use will not deny existing use rights: Grace at [60].

19 The following characterisations of uses are illustrative. The use of premises for pottery making was not categorised more generally as a use for the purpose of light industry: Shire of Perth v O’Keefe (1964) 110 CLR 529. The use of premises for professional offices need not ordinarily be categorised with greater particularity (such as by reference to the particular profession): Shire of Perth at 535. The general term “shop” is an insufficient description of a purpose. Thus, premises used as a butcher’s shop were not properly to be categorised more generally as a shop: Shire of Perth at 535. Similarly, premises used as a retail food shop were not to be categorised more generally as a neighbourhood village retail shop: Woollahra Municipal Council v Banool Developments. The use of the Sydney showground was for the purposes of a showground and speedway and could not properly be described as for the purpose of open air concerts, notwithstanding that five concerts had been held there over 25 years: Royal at 312. Premises which warehoused electrical goods and other goods were categorised as a warehouse, notwithstanding that that would permit the storage of goods not previously stored: North Sydney Municipal Council v Boyts Radio at 61. Premises used as a milk bar with takeaway food were not classified as a café or refreshment room: Grace.

20 In the present case it is common ground that the existing use is for the purpose of a boarding house, but there is a contest as to whether the proposed use is also for the purpose of a boarding house. I do not attach significance (nor did the parties in closing submissions) to evidence that some contemporary boarding houses have in-room cooking and fridge facilities. That evidence begs the question whether those developments are boarding houses.

21 The traditional concept of a boarding house embraced board and lodgings, and still has currency in dictionaries. The Macquarie Dictionary (3rd ed) defines “boarding house” as “a place, usually a home, at which board and lodging are provided”. It defines “board” as “daily meals, especially as provided for pay, often as part of accommodation”. It defines “lodging” as “accommodation in a house, especially in rooms for hire; a place of abode, especially a temporary one; a room or rooms hired for residence in another’s house”. The last (“a room or rooms hired for residence in another’s house”) was adopted in Mackayv NewcastleCity Council [2007] NSWLEC 377 at [20].

22 The description of a boarding house as including the provision of meals to lodgers appeared, in the context of landlord and tenant legislation, in Roberts v Waverley Municipal Council (1988) 14 NSWLR 423 at 430 per Hope JA (Samuels and McHugh JJA agreeing):

“In ordinary parlance a boarding-house is a place where a business is carried on of providing food and lodging to the boarders, and the food comprises meals. It is a place where the boarders pay for their board and lodging, and the concept of a place where the boarders are not required to pay anything and do their own cooking is inconsistent with that natural meaning.”

23 Similarly, in Karmel & Co Pty Ltd (as Trustee for Urbanski Property Trust) v Federal Commissioner of Taxation [2004] ATC 2075 at [26] the Administrative Appeals Tribunal held that garages converted into accommodation units and rented out were not a boarding house as (inter alia) the element of board was missing.

24 On the other hand, the variety of forms that a boarding house may take, including the extent to which meals are provided, was acknowledged by the Administrative Appeals Tribunal in Adelaide Caravan Park Pty Ltd and Department of Industry, Technology and Commerce (1985) 7 ALD 756 at [57]:

“It is well known that boarding-houses may also vary in the type of accommodation and amenities offered and the extent to which meals are provided and the use of either self-contained or shared washing and toileting facilities.”

25 The council’s 1976 approval of a building application in relation to the existing development described it as a “lodging house”, perhaps because no board was provided: see [5] above.

26 It is appealing to a practical mind to adopt a categorisation of a use which is significant in the context of the LEP as an important planning instrument. This is so notwithstanding that cl 41 of the EPA Regulation does not mandate characterisation of a use in accordance with specific classifications in the LEP. Attention is then focussed on the LEP definitions of a “boarding house” and a “residential flat building” and the significant planning consequences which flow from each characterisation. The carparking requirements for a residential flat building are much greater than for a boarding house. In this case, where the applicant proposes that the maximum number of residents in the proposed development will be 20, there is a requirement for 19 carparking spaces if it is categorised as a residential flat building but only 3 carparking spaces if it is categorised as a boarding house: see council’s Development Control Plan No 19 Parking Strategy. The rationale is that residents of boarding houses are anticipated to generally belong to a lower socio-economic group, with less car ownership or usage than residents of residential flat buildings. Contributions by developers under s 94 of the EPA Act are required for residential flat buildings but not for boarding houses: see Marrickville s 94 Contributions Plan 2004. This may be in order to encourage development of affordable housing for those in low socio-economic groups.

27 The LEP includes the following definitions:

“’ Residential flat building’ means a building containing three or more dwellings

‘ 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.

‘Boarding house’

Building Code of Australia

28 The reference in the non-exhaustive definition of “boarding house” to a Class 3 Boarding House under the Building Code of Australia, (which provides a permanent place of residence) does not assist the task of categorising the use because the classification of a boarding house pursuant to that Code follows categorisation of a use rather than dictates it. The reference to a “house let in lodgings” is of more assistance. “Lodging” means accommodation in hired rooms: Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGERA 151 at 155 (Pearlman J). Thus, that part of the LEP definition of a boarding house does not require board (meals) to be provided. The LEP does not refer to a “lodging house” where persons may have lodgings but not receive board.

29 In this planning context, in my opinion, the provision of meals is not necessary for premises to be characterised as a boarding house. Both parties’ submissions proceeded on that basis. That is sufficient to distinguish Roberts, which was decided in a different context. It is therefore unnecessary to go further and to consider whether, outside the present planning context, the concept of a boarding house has evolved in the decades since Roberts was decided such that the provision of board (meals) is generally no longer a necessary requirement in planning or other contexts.

30 There is no difficulty in accepting that bedrooms in a boarding house may have ensuite bathrooms and toilets, as in the proposed development. That is an example of the evolution of the bedroom.

31 Half the bedrooms in the existing development have kitchens, which were approved by the council in its 1976 building approval. It is unnecessary to consider whether the existence of kitchens in bedrooms challenges the characterisation of the existing development as a boarding house because the council contends that the existing development is a boarding house and the applicant does not contend that it cannot be characterised as a boarding house on account of those kitchens.

32 I have concluded that, in this planning context, the purpose of the existing use should be characterised as a boarding house.

33 The applicant submits that the LEP definition of a boarding house includes a residential flat building and therefore that, if the proposed development constitutes a residential flat building, it is not prohibited. The applicant reasons that the LEP definition of a boarding house is not exhaustive and does not conclude with the following or similar words that conclude some other definitions in the LEP (such as “community facility”): “but…does not include a building or place elsewhere specifically defined in this Schedule”. I do not accept the submission. It is true that it is common for environmental planning instruments to include definitions so drawn that some activities may fall within not merely one but two or more of them: Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 328 (CA); Kempsey Shire Council v TebranPty Ltd [2007] NSWLEC 731 at [39] (Jagot J). However, as discussed at [26] above, significant planning consequences flow from the distinction between a boarding house and a residential flat building. In my opinion, the LEP should not be construed so that a definition of boarding house includes a residential flat building. The intention of the LEP is that there is a distinction between the two.

34 Whatever be the precise characterisation of the existing use, the critical question is whether the proposed development is a different use.

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.

40 In my opinion, the applicant’s proposed development, subject to the council’s proposed condition 4, is partly an evolution of the existing use and partly within cl 41(1)(a) and perhaps (b) of the EPA Regulation. Subject to consideration of the remaining issues, I would therefore grant development consent on conditions including council’s proposed condition 4.

41 Council’s proposed condition 5 permits each residential room to have only a bar refrigerator. I think that limitation is legally unnecessary. However, I agree with the parties that there should be a size limitation of some sort. The applicant’s suggestion of a refrigerator with a maximum volume of 430 litres is, I think, reasonable. Condition 5 will be amended accordingly.

Estoppel

42 The applicant submits that the matter is res judicata or the council is estopped from denying that the proposed use is a boarding house or that. The estoppel is said to arise out of the council’s conduct in other proceedings between them in this Court (No 11020 of 2007) in consenting to an order allowing an appeal against refusal of a similar development in the same zone at 59 The Boulevarde, Lewisham. The existing development in that case had no kitchens in bedrooms. The applicant submits that:

(a) there was no material difference between the 59 The Boulevarde development and the proposed development in the present case except for the absence of kitchens in bedrooms in the former, and there was therefore an issue estoppel or res judicata: Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278 at [6]; Blair v Curran (1939) 62 CLR 464 at 531 - 532;
(b) further, or alternatively, there was an estoppel by representation: Ku-ring-gai Municipal v Minister for Planning [2008] NSWLEC 174 at [88]

43 In the case of 59 The Boulevarde, the council sought consent orders that the appeal be allowed and development consent be granted. At that point, upon inquiry by the Court, the council’s legal representative communicated to the Court the council’s position that the proposed development was a boarding house, as follows:

“The council has taken the view that this is what it would say is a modern boarding house, whereby the rooms are self contained in that they contain their own little kitchen and own little combined washing and drying machine but it also proposes now to have that communal element of a nice large communal living area, a communal kitchen, so that that communal nature that is what the council says is an element of a boarding house type use now exists with what is before the court and on that basis it is satisfied that what is proposed by this application is alterations and additions and additions to a boarding house and not a change of use to a residential flat building which, as you would be aware, is now prohibited by virtue of the Environmental Plan Assessment Regulation.”

44 This cannot be a case of res judicata because the earlier proceedings related to a different development. The distinction between res judicata and issue estoppel was addressed in Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502 at 507 quoting Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (omitting footnotes):

“The distinction between res judicata (in England called ‘cause of action estoppel’) and issue estoppel was expressed by Dixon J in Blair v Curran in these terms: ‘in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.’

Jackson v Goldsmith

Blair v Curran

45 As for estoppel, it is significant that a residential flat building is a prohibited use in the zone in which the development is located. No conduct on the part of the council can operate as an estoppel against the imperative statutory prohibition against residential flat buildings: Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502 at 510. The council cannot grant consent to a prohibited use. The council cannot be estopped from carrying out its statutory duties by contending that the proposed development is a prohibited use, namely, a residential flat building: Holidays - A - Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 at 129 – 131. That is sufficient for the estoppel claim to fail.

46 It is therefore unnecessary to consider whether the necessary elements of an estoppel are present. However, I would make two passing observations, which tend to militate against that conclusion. First, as regards estoppel by representation, the element of detrimental reliance is not the subject of any evidence. Secondly, it is a condition of an issue estoppel that the question in the second proceeding is identical with the question decided or covered by the first. The nicety involved in the inquiry as to the identity of questions is illustrated by New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 where the estoppel argument failed. In that case the first proceeding concerned the construction of a bond and the second proceedings concerned the construction of an identical bond. Lord Maugham LC held at 20: “The issue of construction in the second action could indeed be proved in the second action to be similar to that decided in the first; but it related to a different cause of action based on other bonds and could not be asserted to be the same issue”. In Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 at 522 Walsh J held: “In order that the principle of issue estoppel may apply it…must be possible to assert without doubt that the issues are identical”. The development to which the council consented in the case of 59 The Boulevarde was certainly similar to the proposed development in the present case. But it was a different development appeal, related to a different site and was a different development. As I have said, it is unnecessary to decide whether the questions in the two proceedings are identical.

Parking

47 The applicant proposes a single on-site parking space which will be accessed via the present driveway.

48 The council contends that the present development, which operates at approximately half the capacity anticipated in this application, has three on-site parking spaces and the applicant has not demonstrated any reason why this number could not be provided for the present proposal. The parking space proposed by the applicant will permit entry in a forward direction but will require reversing out of the driveway and onto Wardell Road to exit the site. The council Development Control Plan No 19 Parking Code generally discourages such reversing movements into or out of public streets. Wardell Road is not a local street but has significant through traffic volumes.

49 The Development Control Plan sets out a table that permits calculation of the parking requirement for various types of development. For a boarding house with the number of residents being limited to 20, as now agreed, the parking requirement is three parking spaces.

50 The Development Control Plan also provides, in s B.7, the bases upon which the council will consider lowering the number of required car parking spaces for a development from the number that would otherwise be calculated according to the Development Control Plan. The bases are discussed under five headings: type of development, site characteristics, public and alternate forms of transport, locality analysis, and service/benefits local community.

51 A consent authority is required to take into consideration a development control plan which is relevant to the development the subject of a development application: s 79C(1)(a)(iii) EPA Act. The emphasis to be given to a development control plan appears in the following three propositions in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589 at [75] per Spigelman CJ. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly, the provisions of a development control plan are to be considered as a fundamental element in or a focal point of the decision-making process. Thirdly, a provision of a development control plan directly pertinent to the application is entitled to significant weight in the decision making process but is not determinative. If a proposal does not meet the development control plan’s requirements, the Court may still grant consent, in appropriate cases, having given the development control plan consideration in the way required in Zhang and having considered all other matters that are relevant under s 79C of the EPA Act 1979.

52 Mr Coady, a traffic engineer, gave evidence on the behalf of the applicant concerning parking demand. His justifications for departure from the provisions of the Development Control Plan are on two principal bases as stated in his report: first, the proposal is generously served by access to public transport bus services; secondly, there is more than sufficient available on-street parking to provide for any additional parking needs of the proposed development.

53 Mr Coady's parking report shows that there are five government bus services, including one running down Wardell Road itself outside the premises, which provide a wide range of access for residents of the premises to community facilities, shopping centres and public transport connections to the rail system. Mr Coady's report also sets out details of a parking survey undertaken on a Wednesday, in September 2008, between 7.00am and 9.00pm. The survey was undertaken of on-street parking spaces within a walking distance of approximately 200 metres of the site. The survey showed that, within this parking catchment, approximately one third of the spaces, or 67 parking spaces, was the minimum number of spaces available during the survey period. Within a much closer radius, along Wardell Road between the closest cross streets to the north and south, a minimum of seven spaces were available during the survey period.

54 Whilst the council criticised the adequacy of the parking survey, I am satisfied that it provides a sufficient basis, particularly concerning the evening parking demand when residents in the vicinity are likely to have returned from their daily activities, to permit assessment of this aspect of the proposal. There is no evidence of, for example, a major shopping centre that would cause some form of aberrant parking demand in the vicinity at weekends.

55 It emerged in evidence that there is a sporting oval in the vicinity, outside the parking survey area. Mr Coady conceded that there was likely to be some generation of parking demand related to sporting activities at the oval. However, I do not consider, on the basis of the information contained in Mr Coady’s survey, that this is likely to create any difficulties for residents in the vicinity of the site, given the number of available spaces in the survey area and the small number of spaces (two) of extra on-street parking demand generated by the proposal.

56 Evidence was given by Mr Coady and Mr Erkin, town planner for the council, that it was possible to create an additional stacked parking space along the eastern boundary of the premises if the waste disposal area and ramp access were rearranged. However, they agreed that such a stacked parking space would be undesirable as it had the potential for creating conflict between unrelated users and was unlikely to function satisfactorily.

57 Similarly, they agreed it would be possible to move the existing parking space further to the north along the boundary and create an additional parking space across the front of the two residential rooms at the Wardell Road frontage. To do this would require the removal of the private open space areas for each of these rooms and the removal of a significant amount of the landscaping proposed across the frontage. Mr Erkin agreed that this was an undesirable planning and design outcome.

58 Otherwise, additional parking could be provided on the site only by a significant redesign of the proposal, if the accepted development potential of the site is to be realised. Some of the present ground floor elements of the development would have to be raised so that parking below could be provided. Although there was no detailed evidence on this point from either side, it would appear likely, on the basis of the past plans, that to do that would have unacceptable impacts on neighbouring properties.

59 However, unless there were to be a radical redesign of the proposal, any additional parking on the site will involve reversing into Wardell Road.

60 None of these methods of providing increased parking is a desirable planning outcome. Hence, I am satisfied that it would be unreasonable to require the applicant to adopt a parking design that would permit an additional space or spaces on the site.

61 Although there is a technical non-compliance with the parking requirements of the Development Control Plan, I am satisfied that, under the circumstances of the location of the site and the generous availability of access to public transport and on street parking, it is not necessary to require additional on-site parking for the application to be acceptable.

Drainage

62 I now turn to the question of the provision of a stormwater drainage easement.

63 The applicant seeks approval for a pump-out system to enable stormwater to be disposed of at the front of the property into council's stormwater drainage system along Wardell Road.

64 Marrickville Council’s Stormwater and On-Site Detention Code of February 1999, evinces, in paragraph 4.5, the council's preference for gravity transport of stormwater to the council's drainage system. However, the document does provide for an exception, as follows:

only

65 Although the proposal is not for an “existing residential building or replacement of an existing house or dual occupancy”, the parties have accepted that this provision is the appropriate basis for dealing with this issue.

66 The site slopes from its Wardell Road frontage, to the north, towards properties that have frontages to Stoke Avenue. Two properties fronting Stoke Avenue, Nos 3 and 5, have boundaries that abut the site.

67 In the context of an earlier development application, not the subject of the present proceedings, approaches were made in 2005 by the applicant’s director or by its managing real estate agent to the owners of these two properties for drainage easements over them. The information contained in the letters from the applicant's managing real estate agent contained scant detail of what would be involved if an easement were to have been granted by either of these property owners.

68 By letter dated 20 September 2005, the owners of 3 Stoke Avenue indicated that they needed further information before being able to consider whether or not they would be prepared to grant an easement for gravity drainage purposes. The applicant's director replied by letter on or about 27 September 2005 to the owners noting that these owners had concerns about “possible effect on a long-standing tree” but he did not provide any further information concerning construction activity if the easement were to be provided. The letter included the assertion “Again, I reiterate that an easement can not be forced on you.” This statement is not accurate since statutory processes are available which could do just that, albeit with compensation payable by the developer.

69 Nothing came of that earlier application. The present proceedings were commenced in July 2008. There does not appear to have been any further contact between the applicant and the owners of either 3 or 5 Stoke Avenue until late January 2009, about a month before the hearing. On 27 January 2009, the applicant’s solicitors wrote to the owners of these two properties attaching the terms of the council's proposed deferred development consent condition relating to a stormwater easement. The letter included the following:

“Can you please write back to this office with your position in regard to this issue - eg will you agree to the creation of a drainage easement? If you require to be compensated for the creation of a drainage easement - what do you consider is adequate compensation? Or are you opposed to the creation of a drainage easement on any basis?”

70 On 16 February 2009 one of the owners of 3 Stoke Avenue wrote to the applicant’s solicitors stating, among other things:

“On the occasions you spoke to my son and my husband you indicated your client did not in fact want an easement on our property – her is merely going through the process so as to be able to tell the court that he could not get an easement. This seems to be consistent with the fact that you have not provided us with a valuation for the easement – you have left it to us to determine its value. We are of the view it is for your client to have any easement on our property valued, when he seeks an easement. We will not provide any further comment on an easement in the absence of a valuation as we are in no position to consider the matter properly.

71 On 17 February 2009 the applicant’s solicitors wrote to each of these property owners and made an offer of $8,000 for the grant of a drainage easement. The offer was expressed to be open for seven days. The applicant's solicitor stated “If we have not heard from you by that time we will take it that you do not consent to the grant of an easement”.

72 At no time did the applicant provide the owners of the properties to the rear with a valuation, information concerning location of the proposed easement and what would be constructed within it, and information as to construction methodology.

73 One of the owners of 3 Stoke Avenue gave evidence on site, which I accept, that she had been provided with no information, prior to having questions put to her during the course of the site view, about possible tree protective measures, scope of works and the nature of the compensatory payment that would be made, if an easement were to be granted. Whilst her reaction to the proposed development is, on other bases, not positive, she repeated what she had indicated in her letter of 16 February 2009: that, if appropriate valuation information were made available, she and her husband would be in a position to give rational consideration to the proposal. She also indicated that appropriate protective measures for the trees on her property was a relevant matter for consideration by her and her husband as were other matters relating to construction methodology.

74 Although the owners of 3 Stoke Avenue were not prepared to consider an easement in 2005, given the paucity of information made available to them, I do not consider that to have been unreasonable. I do not consider that it provides any basis to found a submission that they would not be prepared to give proper consideration to granting an easement, if sufficient information were now provided to them.

75 There does not appear to have been any response from or follow up with the owner of 5 Stoke Avenue.

76 I have provided this history, in circumstances where the council and the applicant have now settled a condition of consent that deals with the drainage issue, as it provides the background to understanding why I accept that condition as an appropriate response to the issue and acceptable when tested against the Stormwater and On-Site Detention Code. That condition requires the applicant to make an offer to pay compensation supported by a valuation, a construction management plan and other information, to the property owners at the rear and that, if the offer is not accepted or is rejected, the applicant should have a defined avenue for obtaining such a pumpout stormwater facility. The agreed condition is No 47 in the conditions annexed to this judgment.

77 The parties have also agreed a Condition 48 to ensure the technical appropriateness of any pumpout storm water drainage system.

78 In the result, I am satisfied the agreed drainage conditions should be imposed.

Conclusion

79 At the applicant’s request, costs will be reserved.

80 The orders of the Court are as follows:

1. The appeal is allowed.

2. Development consent is granted for the applicant’s development application dated 30 June 2006 subject to the annexed conditions.

3. Costs are reserved. Any application for costs must be made within seven days otherwise there will be no order for costs.
4. The exhibits, other than Exhibit C, may be returned.

Annexure A

CONDITIONS OF CONSENT

The consent is subject to the following conditions:

GENERAL
1. The development being carried out in accordance with. the plans and information in the table below and details submitted with the application for development consent and the following conditions:

Plan No.
and Issue Plan/Certificate
Type
Date

Prepared by

0513- DA103C
Site plim
16 September 2008

Kennedy Associates Architects

0513- DA104C
Demolition plans
16 September 2008

Kennedy Associates Architects

0513- DA105C
Project overview
16 September 2008

Kennedy Associates Architects

0513- DA106C
Ground floor plan
16 September 2008

Kennedy Associates Architects

0513- DA106.1C Ground floor showing furniture layout
16 September 2008

Kennedy Associates Architects

0513- DA107C
First floor plan
16 September 2008

Kennedy Associates Architects

0513- DA107.1C Ground floor showing furniture layout'
16 September 2008

Kennedy Associates Architects

0513- DA108C
First floor plan continued
16 September 2008

Kennedy Associates Architects

0513- DA109C
Roofplan
16 September 2008

Kennedy Associates Architects

0513- DA110C
Sections
16 September 2008

Kennedy Associates Architects

0513- DA111C
Sections 16 September 2008 Kennedy Associates Architects

0513- DA112C
Elevations
16 September 2008

Kennedy Associates Architects

0513- DA113C
Elevations
16 September 2008

Kennedy Associates Architects

0513- DA114C
Elevations
16 September 2008

Kennedy Associates Architects

0513- DA115C
Material and colour finishes
16 September 2008

Kennedy Associates Architects

0513- DA121C
Accessibility plan
16 September 2008

Kennedy Associates Architects

-
Landscape Plan
August 2008

Therese McGroder
Landscape Design

Reason: To confirm the details of the application as submitted by the applicant.

2. The use of the boarding house complying at all times with the Plan of Management prepared by Willana Associates, dated September 2008, as amended by the following conditions. A copy of the Plan of Management is to be annexed to each and every tenancy/occupation agreement for a room.

Reason

3. All tenancy/occupation agreements for rooms within the boarding house shall be for a minimum period of three (3) months.

Reason:

4. No stove, oven, cooktop or dishwasher to be installed within any of the rooms of the boarding house excluding the common kitchen.

Reason: To ensure that the rooms do not constitute a dwelling.

5. One refrigerator with a maximum capacity of 430L may be installed in each room. Such restriction does not apply to the common kitchens.

Reason: To confirm the terms of Council's approval.

6. The premises being used exclusively as a boarding houses as defined under Marrickville Local Environmental Plan 2001, containing a manager/caretaker's room and fourteen (14) rooms with not more than 28 boarders in total. The premises not being adapted for use as backpacker's accommodation, serviced apartments or a residential flat building.

Reason:

7. A manager/caretaker must permanently reside at the boarding house, occupy the manager/caretaker's room and undertake the tasks referred to in section 2.4 of the Operational Plan of Management approved by condition 2 of this consent.

Reason

8. The manager/caretaker for the boarding house being responsible to regularly ensure that all uncollected mail (from room numbered mail boxes) or mail deposited into the house mail box is distributed to the boarders. The manager/caretaker is to also ensure that junk mail is collected and disposed of and that the mail box area is kept tidy at all times and free and clear access is provided to the area

Reason:

9. The communal living room and communal kitchen being maintained at all times for the use of the boarders in accordance with the Operational Plan of Management referred to in condition 2 of this consent.

Reason

10. The approved house rules regarding the use of common living area and the common kitchen are to be clearly displayed within those areas at all times.

Reason

11. The manager/caretaker for the boarding house being responsible for ensuring that the communal landscaped areas and the landscaping in all private courtyards is maintained to a high standard ..

Reason

12. The ground floor communal kitchen being fitted out with washing up facilities, a cooktop, oven, fridge and storage space with such utilities being maintained in working order at all times.

Reason

13. An intercom system complying with AS1428.1 is to be installed in the communal living area on the ground floor to enable all residents to contact the manager/caretaker.

Reason

14. All rooms within the boarding house must be connected to a centralised electricity, water and gas (if installed) service and room tariffs must not include a separate charge for these services.

Reason

15. All residents must be provided with a weekly or fortnightly tariff receipt.

Reason

16. Deleted.

17. The following conditions are imposed in relation to housing affordability and to assist low income tenants:

the boarding house operator shall inform all current residents of this condition and documentary evidence should be submitted to Council showing this prior to the release of a Construction Certificate

(c) The capped tariff referred to in condition 17(b) is to be irrespective of whether the room is occupied by one or two people.

(d) A statutory declaration accompanied by rent receipts and other evidence to satisfy the Council of compliance with conditions 17(a), 17(b) and 17(c) is to be submitted to the Council annually for a period of four (4) years from the date that the final occupation certificate is issued for the completed development.

(e) All residents of the existing boarding house are to be provided with assistance from the boarding house operator in finding comparable alternative accommodation at a similar rate of tariff to that which they currently pay and within the vicinity of the premises. Such assistance is to include telephone enquiries on behalf of the resident and/or providing written or verbal references to places of alternate accommodation.

Reason: To ensure compliance with the terms of the Department of Planning in granting

concurrence under State Environmental· Planning Policy No. 10 - Retention of Low-Cost Rental Accommodation and to assist in the provision of low cost accommodation.

18. One (1) off-street car parking space being provided, paved, linemarked and maintained at all times prior to the commencement of the use.

Reason: To ensure on-site car parking is provided as part of the development.

19. No injury being caused to the amenity of the neighbourhood by the emission of noise, smoke, smell, vibration, gases, vapours, odours, dust, particular matter, or other impurities which are a nuisance or injurious or dangerous or prejudicial to health, the exposure to view of any unsightly matter or otherwise.

Reason: To ensure the operation of the premises does not affect the amenity of the

neighbourhood.

20. A separate application being submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures.

Reason

21. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

Reason

22. Any adjustment or augmentation of any public utility services including Gas, Water, Sewer, Electricity, Street lighting and Telecommunications required as a result of the development shall be at no cost to Council and undertaken before occupation of the site.

Reason: To ensure all costs for the adjustmenVaugmentation of services arising as a

result of the redevelopment are at no cost to Council.

23. Residents of the development shall not be eligible for any existing or future resident parking scheme for the area. The person acting on this consent shall advise any prospective tenant of this condition.

Reason: To ensure the development does not reduce the amount of "on street" parking

currently available.

24. All roof and surface stormwater from the site any catchment external to the site that presently drains to it, shall be collected in a system of pits and pipelines/channels and major storm event surface flow paths and being discharged to a Council controlled stormwater drainage system in accordance with the requirements of Marrickville Council Stormwater and On Site Detention Code. The maximum discharge allowable to Council's street gutter is 25 litres/second.

Reason

25. All stormwater drainage being designed in accordance with the provisions of the 1987 Australian Rainfall and Runoff (A.RR), Australian Standard AS3500.3.2-1998 'Stormwater Drainage-Acceptable Solutions' and Marrickville Council Stormwater and On Site Detention Code. Pipe and channel drainage systems shall be designed to cater for the twenty (20) year Average Recurrence Interval (A.RI.) storm in the case of low and medium residential developments, the twenty (20) year A.RI. storm in the case of high density residential development and commercial and/or industrial developments and the fifty (50) year A.RI. sform in the case of heavy industry. In all cases the major event surface flow paths shall be designed to cater for the one hundred (100) year A.RI. storm.

Reason: To provide for adequate site drainage.

26. No encroachments onto Council's road or footpath of any service pipes, sewer vents, boundary traps, downpipes, gutters, stairs, doors, gates, garage tilt up panel doors or any structure whatsoever shall not be permitted. Any encroachments on to Council road or footpath resulting from the building works will be required to be removed before occupation of the site.

Reason

For the purpose of interpreting this consent, a Principal Certifying Authority (PCA) means a principal certifying authority appointed under Section 109E(1) of the Environmental Planning and Assessment Act 1979. Pursuant to Section 109E(3) of the Act, the PCA is principally responsible for ensuring that the works are carried out in accordance with the approved plans, conditions of consent and the provisions of the Building Code of Australia.

27. No work shall commence until:

a) A PCA has been appointed. Where an Accredited Certifier is the appointed, Council shall be notified within two (2) days of the appointment; and

b) A minimum of two (2) days written notice given to Council of the intention to commence work.

Reason: To comply with the provisions of the Environmental Planning and Assessment

Act.

28. A Construction Certificate shall be obtained before commencinq buildinq work. Building work means any physical activity involved in the construction of a building. This definition includes the installation of fire safety measures.

Reason: To comply with the provisions of the Environmental Planning and Assessment

Act.

29. Sanitary facilities are to be provided at or in the vicinity of the work site in accordance with the WorkCover Authority of NSW, Code of Practice 'Amenities for Construction'. Each toilet shall be connected to the sewer, septic or portable chemical toilet before work commences.

Reason: To ensure that sufficient and appropriate sanitary facilities are provided on the

site.

30. All demolition work shall:

a) Be carried out in accordance with the requirements of Australian Standard AS 2601 'The demolition of structures' and the Occupational Health and Safety Act and Regulations; and

b) Where asbestos is to be removed it shall be done in accordance with the requirements of the WorkCover Authority of NSW and disposed of in accordance with requirements of the Department of Environment and Climate Change.

Reason: To ensure that the demolition work is carried out safely.

31. Where any loading, unloading or construction is to occur from a public place, Council's Technical Services Division shall be contacted to determine if any permits or traffic management plans are required to be obtained from Council before work commences.

Reason: To protect the amenity of the area.

32. All services in the building being demolished are to be disconnected in accordance with the requirements of the responsible authorities before work commences.

Reason: To ensure that the demolition work is carried out safely.

33. A waste management plan shall be prepared in accordance with Marrickville Development Control Plan No. 27 - Waste Management and submitted to and accepted by the PCA before work commences.

Reason: To ensure the appropriate disposal and reuse of waste generated on the site.

34. The site shall be enclosed with suitable fencing to prohibit unauthorised access. The fencing shall be erected as a barrier between the public place and any neighbouring property, before work commences.

Reason: To secure the area of the site works maintaining public safety.

35. A rigid and durable sign shall be erected in a prominent position on the site, before work commences. The sign is to be maintained at all times until all work has been completed. The sign is to include:

a) The name, address and telephone number of the PCA;

b) A telephone number on which Principal Contractor (if any) can be contacted outside working hours; and

c) A statement advising: 'Unauthorised Entry To The Work Site Is Prohibited'.

Reason: To maintain the safety of the public and to ensure compliance with the

Environmental Planning and Assessment Regulations.

36. A Soil and Water Management plan shall be prepared in accordance with Landcom Soils and Construction, Volume 1, Managing Urban Stormwater (Particular reference is made to Chapter 9, "Urban Construction Sites") and submitted to and accepted by the PCA. A copy of this document shall be submitted to and accepted by PCA before work commences. The plan shall indicate:

a) Where the builder's materials and waste are to be stored;

b) Where the sediment fences are to be installed on the site;

c) What facilities are to be provided to clean the wheels and bodies of all vehicles leaving the site to prevent the tracking of debris and soil onto the public way; and

d) How access to the site will be provided.

Reason: To prevent soil erosion and sedimentation of the stormwater network.

37. The applicant shall apply as required for all necessary permits including crane permits, road opening permits, hoarding permits, footpath occupation permits and/or any other approvals under Section 68 (Approvals) of the Local Government Act, 1993 or Section 138 of the Roads Act, 1993.

Reason: To ensure all necessary approvals have been applied for.

38. Where it is proposed to carry out works in public roads or Council controlled lands, a road opening permit shall be obtained from Council before the carrvina out of any works in public roads or Council controlled lands. Restorations shall be in accordance with Marrickville Council's Restorations Code. Failure to obtain a road opening permit for any such works will incur an additional charge for unauthorised openings in the amount of $1,879.70, as provided for in Council's adopted fees and charges.

Reason: To ensure that all restoration works are in accordance with Council's Code.

39. The applicant shall provide details of the means to secure the site and to protect the public from the construction works. Where the means of securing the site involves the erection of fencing or a hoarding on Council's footpath or road reserve the applicant shall submit a hoarding application and pay all relevant fees before commencement of works or the issue of the Construction Certificate; whichever occurs first.

Reason

40. A detailed Traffic Management Plan to cater for construction traffic shall be submitted to and approved by Council before commencement of works or the issue of the Construction Certificate, whichever occurs first. Details shall include proposed truck parking areas, construction zones, crane usage, truck routes etc.

Reason: To ensure construction traffic does not unduly interfere with vehicular or

pedestrian traffic, or the amenity of the area.

41. The applicant shall submit a dilapidation report including colour photos showing the existing condition of the footpath and roadway adjacent to the site before the issue of the Construction Certificate or before the commencement of works (including any demolition works) whichever occurs first.

Reason: To ensure the existing condition of Council's infrastructure is clearly documented.

BEFORE THE ISSUE OF A CONSTRUCTION CERTIFICATE

For the purpose of interpreting this consent the Certifying Authority (Council or an Accredited Certifier) is that person appointed to issue a Construction Certificate.

42. Noise attenuation measures being incorporated into the development complying with Australian Standard 2021-2000 in relation to interior design sound levels, in accordance with details to be submitted to the Certifying Authority's satisfaction before the issue of a Construction Certificate together with certification by a suitably qualified acoustical engineer that the proposed noise attenuation measures satisfy the requirements of Australian Standard 2021-2000.

Reason: To reduce noise levels within the proposed development from aircraft.

43. Lighting details of the entrances to the boarding house being submitted to the Certifying Authority's satisfaction before the issue of a Construction Certificate.

Reason: To ensure appropriate lighting is provided to create a safe living environment.

44. Deleted.

45. Evidence of payment of the building and construction industry Long Service Leave Scheme, shall be submitted to and accepted by the Certifying Authority before the issue of a· Construction Certificate. The required payment of $4,970.00 can be made at the Council Offices. This fee has been based on an estimated cost of works of $1,420,000.00.

NB: The required payment referred to above is based on the estimated cost of building and construction works as stated on the development apJllication and the current long service levy rate, set by the Long Service Payments Corporation, of 0.35% of the cost of the building and construction work.

The payment is required to be paid before the issue of a Construction Certificate and the required payment may change if the estimated cost of works has increased at that time or the levy rate has changed. In such circumstances the necessary payment will need to be re-calculated.

Reason: To ensure that the required levy is paid in accordance with the Building and

Construction Industry Long Service Payments Act.

46. Deleted.

47. Subject to the provisions of this condition, site drainage shall be by means of a gravity system. The developer is to assess the property across which an easement to drain water is the most practicable (in terms of construction costs and value of the easement) and is to obtain:

(i) to protect and avoid damage to existing trees, including the preparation of an

arborist's report in regard to any tree that will be impacted upon by the proposed easement.

(ii) to reinstate existing vegetation.

(iii) to reinstate existing paths, driveways and/or car parking areas.

The developer shall serve such documents upon the adjoining owners of the lot the subject of an intended easement together with an offer to pay compensation (in accordance with the valuation report) and carry out works in accordance with those documents (which offer is to include the time for such events). The adjoining owners may, within 28 days of receipt of service of the documents accept the offer for the creation of the easement to drain storm water. If the adjoining owners do not accept the offer to create the easement within 28 days, or indicate that they require any amendments to the offer, or reject the offer, the developer may install a pump out storm water drainage system that will discharge to Wardell Road. If the adjoining owner does not permit reasonable access to the developer to the adjoining land for the purposes of the preparation of the documents referred to in this condition, the aeveloper may install a pump out storm water drainage system that will discharge to Wardell Road.

48. Plans, details and calculations of an on site detention system in accordance with Marrickville Council Stormwater and On Site Detention Code shall be submitted to and accepted by Council before the issue of a Construction Certificate. The design of the OSD system shall comply with the following:-

(i) The on site detention system shall be designed for all storm events from the 1 year to

the 1 in 100 year storm event, with discharge to a Council controlled storm water system limited to pre-development conditions with the maximum allowable discharge to Council's street gutter limited to 25 litres/second (20 year ARI);

(ii) Storage for the 1 year storm event shall be provided fully below ground;

(v) Details of the Height v Storage and Height v Discharge relationships shall be

submitted;

(vii) Details of the 1 in 100 year overflow route in case of failure\blockage of the drainage

system shall be provided;

(ix) The design of the pumpout/ sump system shall comply with the requirements of

AS/NZS 3500.3.2: 1998.

Reason: To ensure the development does not increase the stormwater runoff from the site

and to ensure that there are no dry-weather flows of any seepage water.

49. The applicant shall provide security in a manner satisfactory to the Director Technical Services in the amount of $1,220.20 before the issue of a Construction Certificate as surety for the proper completion of the footpath and/or vehicular crossing works required as a result of this development.

Reason: To provide security for the proper completion of the footpath and/or vehicular

crossing works.

50, Before the issue of a Construction Certificate the owner or builder shall sign a written undertaking that they shall be responsible for the full cost of repairs to footpath, kerb and gutter, or ,other Council property damaged asa result of construction of the proposed development. Council may utilise part or all of any Building Security Deposit (B.S.o.) or recover in any court of competent jurisdiction, any costs to Council for such repairs.

Reason: To ensure that all damages arising from the building works are repaired at no

cost to Council.

51 . Deleted.

SITE WORKS

52. All excavation, demolition, construction, and deliveries to the site necessary for the carrying out of the development, are restricted to between 7.00am to 5.30pm Mondays to Saturdays, excluding Public Holidays. Notwithstanding the above no work being carried out on any

Saturday that falls adjacent to a Public Holiday. I

Reason: To minimise the effect of the development during the construction period on the

amenity of the surrounding neighbourhood.

53. The area surrounding the building work being reinstated to Council's satisfaction upon completion of the work.

Reason: To ensure that the area surrounding the building work is satisfactorily reinstated.

54. The placing of any materials on Council's footpath or roadway is prohibited, without the consent of Council. The placement of waste storage containers in a public place requires Council approval and shall comply with Council's Policy - 'Placement of Waste Storage Containers in a Public Place'. Enquiries are to be made with Council's Technical Services Division.

Reason: To ensure the public ways are not obstructed and the placement of waste storage"

containers in a public place are not dangerous to the public.

55. All demolition and construction work being carried out in accordance with the following:

a)

b)

c)

d)

e) f)

compliance with the requirements of Australian Standard AS 2601 'The demolition of structures' with specific reference to health and safety of the public, health and safety of the site personnel, protection of adjoining buildings and protection of the immediate environment;

all works involving the demolition, removal, transport and disposal of asbestos cement is to be carried out in accordance with the 'Worksafe Code of Practice for Removal of Asbestos' and the requirements of the WorkCover Authority of NSW and the Department of Environment and Climate Change;

all building materials arising from the demolition and construction are to be disposed of in an approved manner in accordance with Marrickville Development Control Plan No. 27 - Waste Management and any applicable requirements of the Department of Environment and Climate Change;

sanitary drainage, stormwater drainage, water, electricity and telecommunications are to be disconnected in accordance with the requirements of the responsible authorities; the generation of dust and noise on the site must be controlled;

the site must be secured to prohibit unauthorised' entry;

g) suitable provision must be made to clean the wheels and bodies of all vehicles leaving the site to prevent the tracking of debris and soil onto the public way;

h) all trucks and vehicles associated with,the demolition and construction, including those delivering to or removing material from the site, only having access to the site during work hours nominated by Council and all loads must be covered;

i) all vehicles taking materials from the site must be loaded wholly within the property· unless otherwise permitted by Council;

j) all vehicles carrying materials to, or from the site must have their loads covered with tarpaulins or similar covers;

k) no waste collection skips, spoil, excavation or demolition and construction material frpm the site being deposited on the public road, footpath, public place or Council owned property without the approval of Council; and

I) the person acting on this consent is responsible for ensuring that all contractors and sub-contractors associated with the demolition and construction are fully aware of these requirements.

Reason: To ensure that the demolition and construction work is carried out safely and

impacts on the surrounding area are minimised.

56. The works are required to be inspected at critical stages of construction, by the PCA or if the PCA agrees, by another Certifying Authority. The last inspection (c) can only be carried out by the PCA. The critical stages of construction are:

a) At the commencement of the building work;

b) For Class 2, 3 and 4 buildings, prior to covering waterproofing in any wet areas (a minimum of 10% of wet areas within a building);

c) Prior to covering any stormwater drainage connections, and after the building work has been completed and prior to any occupation certificate being issued in relation to the building; and

Reason: To ensure the building work is carried out in accordance with the Environmental

Planning and Assessment Regulations and the Building Code of Australia.

57. If it is necessary to excavate below the level of the base of the footings of a building on the adjoining allotments, including a public place such as footways and roadways, the person acting on this consent shall ensure;

a) At least seven (7) days notice is given to the owners of the adjoining land of the intention to excavate below the base of the footings. The notice is to include complete details of the work; and

b) That any building is preserved and protected from damage.

before works continue on site

before work commences

Reason: To ensure that adjoining buildings are preserved, supported and the condition of

the buildings on the adjoining property catalogued for future reference in the event that any damage is caused during work on site.

58. A clear unobstructed path of travel of not less than 1000 mm is to be provided to all exits and paths of travel to exits.

Reason: To provide safe egress in case of fire or other emergency.

BEFORE OCCUPATION OF THE BUILDING

59. You shall obtain an Occupation Certificate from your PCA before you occupy or use the building. The PCA shall notify the Council of the determination of the Occupation Certificate and forward the following documents to Council within two (2) days of the date of the Certificate being determined:

a) A copy of the determination;

b) Copies of any documents that were lodged with the Occupation Certificate application;

c) A copy of Occupation Certificate, if it was issued;

d) A copy of the record of all critical stage inspections and any other inspection required by the PCA;

e) A copy of any missed inspections; and

f) A copy of any compliance certificate and any other documentary evidence relied upon in issuing the Occupation Certificate.

Reason: To comply with the provisions of the Environmental Planning and Assessment

Regulations'.

60. Occupation of the building shall not be permitted until such time as:

a) All preconditions to the issue of an Occupation Certificate specified in this development consent have been met;

b) The building owner obtains a Final Fire Safety Certificate certifying that the fire safety measures have been installed in the building and perform to the performance standards listed in the Fire Safety Schedule; and

c) An Occupation Certificate has been issued.

Reason

61. The owner of the premises, as soon as practicable after the Final Fire Safety Certificate is issued, shall:

a) Forward a copy of the Final Safety Certificate and the current Fire Safety Schedule to the Commissioner of the New South Wales Fire Brigades and the Council; and

b) Display a copy of the Final Safety Certificate and Fire Safety Schedule in a prominent

position in the building (Le. adjacent the entry or any fire indicator panel).

Reason: To ensure compliance with the relevant provisions of the Environmental Planning

and Assessment Regulations and Building Legislation Amendment (Quality of Construction) Act.

62. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan, and being maintained at all. times to Council's

Reason

63. (i) Upon completion of the required noise attenuation measures referred to in the "Before

the Issue of a Construction Certificate" Section of this Determination and prior to the occupation of the boarding house a report being prepared and submitted to Council's satisfaction by an accredited Acoustics Consultant, certifying that the final construction meets AS2021- 2000 as set down in the subject condition of this consent. Such report shall include external and internal noise levels to ensure that the external noise levels during the test are representative of the typical maximum levels that may occur at this development; and

(ii) Where it is found that internal noise levels are greater than the required dB(A) rating

due to faulty workmanship or the like, necessary corrective measures shall be carried out and a further certificate being prepared and submitted to Council in accordance with the requirements as set down in Part (i) of this condition.

Reason: To reduce noise levels within the proposed boarding house from aircraft and to

ensure that the proposed noise attenuation measures incorporated into the dwellings satisfactorily comply with the relevant sections of Australian Standard 2021-2000.

64. With the regard to the On Site Detention System (OSD), a Positive Covenant in accordance with supplement 7 of Marrickville Council Stormwater and On Site Detention Code shall be placed on the Title in favour of Council before occupation of the site.

Reason: To ensure that the integrity of the OSD system is maintained and to comply with

Marrickville Council Stormwater and On Site Detention Code.

65. All instruments under Section 88B of the Conveyancing Act used to create easements or right-of-ways shall include the condition that such easements or right-of-ways may not be varied, modified or released without the prior approval of Marrickville Council.

Reason

66. All works required to be carried out in connection with drainage, crossings, alterations to kerb and guttering, footpaths and roads resulting from the development shall be completed before occupation of the site. Works shall be in accordance with Council's Standard crossing and footpath specifications and AUS-SPEC#2-"Roadworks Specifications".

Reason: To ensure applicant completes all required work.

67. Before occupation of the site written verification from a suitably qualified professional civil engineer, stating that all stormwater drainage and related work has been and constructed in accordance with the approved plans shall be submitted to and accepted by Council. In addition, full works-as-executed plans, prepared and signed by a registered surveyor, shall be submitted to Council. These plans must include levels for all drainage structures, buildings (including floor levels), finished ground levels and pavement surface levels.

Reason: To ensure drainage works are constructed in accordance with approved plans.

ADVISORY NOTES

THAT

the applicant be advised that

(i) A complete assessment of the application under the provisions of the Building Code of

Australia has not been carried out.

(ii) The approved plans must be submitted to the Customer Centre of any office of Sydney

Water before the commencement of any work to ensure that the proposed work meets the requirements of Sydney Water. Failure to submit these plans before commencing work may result in the demolition of the structure if found not to comply with the requirements of Sydney Water.

(iii) The vehicular crossing and/or footpath works are required to be constructed by your own contractor. You or your contractor must complete an application for 'Construction of a Vehicular Crossing & Civil Works' form, lodge a bond for the works, pay the appropriate fees and provide evidence of adequate public liability insurance. before commencement of works.

(iv) Useful Contacts

Marrickville Council 9335 2222

Copies of all Council documents and application forms can be found on the web site.

Department of Fair Trading 13 3220.

wwwJairtradinq.nsw.qov.au

Sydney Water 132092

WorkCover Authority of NSW 13 10 50

Landcom 9841 8660 to purchase copies of Volume One of "Soils and Construction".

Department of Environment and Climate Change 9995 5000

NSW Government
(information on asbestos and safe work practices)

Waste Service NSWEnvironmental Solutions

CITATION:	Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23
PARTIES:	APPLICANT: Warlam Pty Ltd RESPONDENT: Marrickville Council
FILE NUMBER(S):	10623 of 2008
CORAM:	Biscoe J
KEY ISSUES:	EXISTING USE :- Principles of existing use rights – whether development application proposed that existing use for a boarding house be developed into a different use for a prohibited residential flat building – whether proposed development an evolution of existing use or an enlargement, expansion or intensification of existing use within cl 41(1) of the Environmental Planning and Assessment Regulation 2000 – whether council estopped from denying that proposed use was for purpose of a boarding house Estoppel – whether council estopped from denying that proposed development, the subject of a development application, was for the purpose of a boarding house. Development Consent - existing use, parking and drainage considerations.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 76B, 79C, 106, 107, 108, Pt 4 Div 10 Environmental Planning and Assessment Regulation 2000, cl 41 Marrickville Local Environmental Plan 2001 State Environmental Planning Policy No 10 – Retention of Low-Cost Rental Accommodation, cl 7(4)(e)
CASES CITED:	Adelaide Caravan Park Pty Ltd v Department of Industry, Technology and Commerce (1985) 7 ALD 756 Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGERA 151 Blair v Curran (1939) 62 CLR 464 Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502 Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 Dorrestijn v South Australian Planning Commission (1984) 54 LGRA 99 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57 Holidays - A - Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 Honig v Redfern [1949] 2 All ER 15 (1949) 47 LGR 447 Karmel & Co Pty Ltd (As Trustee for Urbanski Property Trust) v Federal Commissioner of Taxation [2004] ATC 2075 Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731 Ku-ring-gai Municipal v Minister for Planning [2008] NSWLEC 174 Mackay v Newcastle City Council [2007] NSWLEC 377 New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278 Roberts v Waverley Municipal Council (1988) 14 NSWLR 423 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O’Keefe (1964) 110 CLR 529 Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253 Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589
DATES OF HEARING:	2, 3 and 4 March 2009
DATE OF JUDGMENT:	19 March 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr A. Galasso SC SOLICITORS: Sattler & Associates Pty Ltd RESPONDENT Mr I. Hemmings SOLICITORS: Corrs Chambers Westgarth

Plan No. and Issue	Plan/Certificate Type	Date	Prepared by
0513- DA103C	Site plim	16 September 2008	Kennedy Associates Architects
0513- DA104C	Demolition plans	16 September 2008	Kennedy Associates Architects
0513- DA105C	Project overview	16 September 2008	Kennedy Associates Architects
0513- DA106C	Ground floor plan	16 September 2008	Kennedy Associates Architects
0513- DA106.1C	Ground floor showing furniture layout	16 September 2008	Kennedy Associates Architects
0513- DA107C	First floor plan	16 September 2008	Kennedy Associates Architects
0513- DA107.1C	Ground floor showing furniture layout'	16 September 2008	Kennedy Associates Architects
0513- DA108C	First floor plan continued	16 September 2008	Kennedy Associates Architects
0513- DA109C	Roofplan	16 September 2008	Kennedy Associates Architects
0513- DA110C	Sections	16 September 2008	Kennedy Associates Architects
0513- DA111C	Sections	16 September 2008	Kennedy Associates Architects
0513- DA112C	Elevations	16 September 2008	Kennedy Associates Architects
0513- DA113C	Elevations	16 September 2008	Kennedy Associates Architects
0513- DA114C	Elevations	16 September 2008	Kennedy Associates Architects
0513- DA115C	Material and colour finishes	16 September 2008	Kennedy Associates Architects
0513- DA121C	Accessibility plan	16 September 2008	Kennedy Associates Architects
-	Landscape Plan	August 2008	Therese McGroder Landscape Design