Proceedings No 10877 of 2012
4This is an application for a boarding house development at 83A Camden Street, Fairfield Heights by converting an existing two-storey dwelling into three boarding rooms with associated share facilities and the erection of five self-contained ground level units, each with a kitchen, bathroom/laundry and each having private access at ground level. One of the ground level units has a room attached with separate ground floor access which is designated as "common area".
5This property is within Zone No 2(a) Residential A under the LEP.
6The table to cl 8 of the LEP specifies the purposes for which development may be carried out without development consent, the purposes for which development may be carried out only with development consent, and the purposes for which development is prohibited. In Zone No 2(a) no development is permitted without consent. Development which is permitted only with development consent is any purpose other than a purpose which is prohibited. The extensive list of prohibited development includes "multi-unit housing" and "residential flat buildings". The Council submits that this development is properly characterised as "multi-unit housing" and is thus prohibited. The applicant contends, however, that the development is a boarding house as stated in the development application, which as an innominate use is not prohibited. The applicant alternatively submits that the development is permissible under the State Policy, which prevails over any other environmental planning instrument to the extent of any inconsistency: cl 8 State Policy.
7"Multi-unit housing" is defined in the LEP as meaning "2 or more dwellings (whether or not attached) on one allotment of land, each with private access to ground level open space".
8A "dwelling" is defined as "a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile".
9The definition of "multi-unit housing" means that the proposed five self-contained ground level units fall within that definition. Each unit is constructed so as to be capable of being used as a separate domicile, having all the facilities that one finds in a dwelling, including a bathroom/laundry and a kitchen; and each unit has private access to ground level open space. The fact that the plans show a room described as "common area" (which is separately accessed from ground level) does not disqualify these units from coming within the definition of "multi-unit housing".
10The ground floor of the two-storey building contains a single unit, together with a bathroom, a living area/kitchen, a garage, a storeroom, and a common laundry. The ground floor is thus also within the definition of a "dwelling" and since it has private access to ground level open space it, too, is within the definition of "multi-unit housing". The upper floor of the two-storey building has two units, with a shared bathroom, a shared living/dining/kitchen area and shared storeroom. This floor is accessed by external stairs, also shared, and so does not come within the definition of "multi-unit housing". That is, the upper floor of the two-storey building is a boarding house, being an innominate use not listed as prohibited development and would thus be permissible with development consent.
11The Council submits, however, that the fact that individual rooms within the two-storey building may be individually let to lodgers does not take away from the fact that the rooms and facilities provided within the building may be capable of being occupied or used as a separate domicile. I accept this submission as self-evident, but the fact that it does not have private access to ground level open space excludes the upper floor from the definition of "multi-unit housing".
12In the applicant's submission, notwithstanding the fact that (apart from the upper floor of the two-storey building) the development may come within the definition of "multi-unit housing", the stated purpose of the development is a boarding house; in this respect, cl 8 of the LEP and the zoning table governs "the purposes for which development may be carried out", and "the purposes for which development is prohibited"; that is, in planning law, use would be for a purpose and "purpose" is not concerned with the nature of the buildings that will be used to serve the purpose (citing Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [34]).
13A similar submission was rejected, however, by the Court of Appeal in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343. In that case the Court, applying settled authority (Egan v Hawkesbury City Council (1993) 79 LGERA 321 and Hawkesbury City Council v Sammut [2002] NSWCA 18, 119 LGERA 171), held, at [67] - [68] that if there are overlapping purposes where one use is an innominate use and another is a nominate use, then each is independently controlled by the local environmental plan and if one purpose is prohibited then the plan is disobeyed if the development proceeds on the basis of the other permitted purpose. The applicant's submission that there is one stated purpose, being a boarding house development - being the sole purpose - must thus be rejected.
14The applicant next relies upon the State Policy, which prevails over any other inconsistent environmental planning instrument, and submits that the proposed development is permissible under that Policy. Division 3 of Part 2 of the Policy is headed "Boarding houses". Clause 26 in Division 3 relevantly states:
26 Land to which Division applies
This Division applies to land within any of the following land use zones or within a land use zone that is equivalent to any of those zones:
(a) Zone R1 General Residential,
(b) Zone R2 Low Density Residential,
(c) Zone R3 Medium Density Residential,
(d) Zone R4 High Density Residential,
(e) Zone B1 Neighbourhood Centre,
(f) Zone B2 Local Centre,
(g) Zone B4 Mixed Use.
15Clause 27 relevantly states:
27 Development to which Division applies
(1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses.
(2) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area.
(3) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones.
16Clause 28 relevantly states:
28 Development may be carried out with consent
Development to which this Division applies may be carried out with consent.
17There is no zone in the LEP which is designated R1 General Residential. The applicant submits, however, that Zone No 2(a) in the LEP is "a land use zone that is equivalent to" Zone R1 General Residential in the State Policy. The reference to "a land use zone that is equivalent to" Zone R1 General Residential is a reference to that zone in the standard instrument: cl 4(2). Where the standard instrument has not been adopted, then the zone is "a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone": cl 5(1)(b). An assessment made by a relevant authority applies only in respect of the particular development that is proposed to be carried out: cl 5(2). It is necessary, therefore, to determine whether equivalent uses are permitted in the R1 zone in the standard instrument and in the 2(a) zone in the LEP: Chehade v Bankstown City Council [2012] NSWLEC 221 (Sheahan J), affirming the approach adopted by Commissioner Morris in Chehade v Bankstown City Council [2012] NSWLEC 1122 at [30]. This approach involves comparing the set of uses rather than a direct comparison with individual uses.
18The parties accept that the comparison to be made is between the permissible uses in the 2(a) zone and in the R1 zone respectively. That is, they accept that the permissible uses in the other zones in the standard instrument bear little comparison with the 2(a) zone.
19The analysis thus undertaken shows that there are 18 innominate permitted uses defined in the LEP in the 2(a) zone and 16 permitted uses in the R1 zone. Only 11 of the permissible uses are common to both zones. In another way, 11 of the 18 permitted uses in the 2(a) zone are also permitted in the R1 zone, and 11 of the 16 permitted uses in the R1 zone are also permitted in the 2(a) zone. That is, 61 per cent of the 2(a) uses are common and 69 per cent of the R1 uses are common.
20In addition to the numerical comparison, it is also appropriate to compare the two sets of uses in a qualitative sense. In the R1 zone the form of permissible residential development is of a relatively dense kind, such as attached dwellings, multi-unit housing, residential flat buildings and shop-top housing, none of which are permissible in the 2(a) zone. Shops are not permissible in the 2(a) zone, but neighbourhood shops are permissible in the R1 zone. A range of other uses are permitted in the 2(a) zone which are not permissible in the R1 zone such as clubs, education establishments, family day cares, hospitals, health consulting rooms, places of public entertainment, telecommunications facilities and utility installations. There are significant differences both in number and nature between the two sets of permissible uses. Whilst reasonable minds may differ, I am inclined to the view that in this case the two sets of land uses are not equivalent.
21Accordingly, Division 3 of Part 2 of the State Policy does not apply to the proposed boarding house development in the 2(a) zone under the LEP. I consider, therefore, that only the upper level of the two-storey building is permissible with consent as falling within the innominate use of a boarding house. The balance of the proposed development is properly characterised as multi-unit housing and is prohibited development.