Badaoui v Hurstville City Council

Background and proposal

1. The development application was lodged with council on 27 May 2014. It was exhibited and a number of objections were received. An appeal against council's deemed refusal of the application was lodged on 10 July 2014. The applicant was granted leave to rely on amended plans on 6 November 2014, which were re-exhibited and further objections received. An Amended Statement of Facts and Contention was filed on 4 December 2014 (Exhibit 1) in response to these amended plans.
2. Leave was granted to further amended plans on 26 February 2015, which are the plans for which consent is sought (Exhibit A). The development application, as amended, seeks consent for the demolition of existing structures and construction of a two storey building comprising non-residential use and parking for six cars at ground floor and a ten room boarding house accommodating a maximum of 19 people at first floor.

Planning controls

1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies. The aims of the policy include: (f) to support local business centres by providing affordable rental housing for workers close to places of work,
2. Clause 8 provides: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
3. Part 2, Division 3 of SEPP ARH applies to boarding houses. It applies to land in the B1 zone (cl 26) and permits boarding houses with consent (cl 28). Clause 29 contains standards that cannot be used to refuse consent, including building height, landscaped area, solar access, private open space, parking and accommodation size.
4. Clause 30(1) of SEPP ARH provides standards for boarding houses, including requirements for communal living room, size and occupancy of a boarding room, provision of bicycle and motorcycle parking.
5. Clause 30A provides: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
6. The parties agree that the proposal meets the requirements of SEPP ARH.
7. The site is in Zone B1 - Neighbourhood Centre under the provisions of Hurstville Local Environmental Plan 2012 (LEP). The objectives of the zone which, under cl 2.3(2), the consent authority must have regard to are: To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.
8. Boarding houses, and a range of non-residential uses, including Business premises; Medical centres; Neighbourhood shops; Office premises; Restaurants or cafes; Take away food and drink premises are permissible with consent in the B1 zone.
9. Clause 4.4 of the LEP contains a development standard for Floor Space Ratio (FSR) with a maximum FSR of 1.5:1 permitted on the site. The FSR proposed is 0.88:1, which is below the maximum. Clause 4.4A of the LEP provides: 4.4A Exceptions to floor space ratios for buildings on land in certain zones (1) Despite clause 4.4, development consent must not be granted for development on land in Zone B1 Neighbourhood Centre or Zone B2 Local Centre unless the non-residential floor space ratio is at least 0.5:1. (2) In this clause, non-residential floor space ratio means the ratio of the gross floor area of that part of a building used or proposed to be used for any purpose other than a residential purpose in a building on the site to the site area.
10. The non-residential floor space proposed is less than 0.5:1 and the applicant provided a written request under cl 4.6. The council contended that the cl 4.6 objection did not justify the contravention of cl 4.4A. However, during the hearing, the parties agreed that cl 4.4A would have the effect of prohibiting a boarding house use, which is permissible under SEPP ARH. Clause 4.4A is therefore inconsistent with SEPP ARH and under cl 8, the SEPP prevails. Consequently cl 4.4A is not engaged and an exception to the development standard under cl 4.6 is not required (see Hastings Point Progress Assn Inc v Tweed Shire Council [2009] NSWCA 285). Contentions 1 and 2 in the proceedings were therefore not pressed.
11. Hurstville Development Control Plan 1 (DCP) applies to the site. It does not contain any specific controls that apply to boarding house development but s 3-General Planning Consideration includes requirements for parking (S3.1.4.1).

Evidence

1. The Court visited the site and heard from objectors whose key concerns were that a boarding house was an unsuitable development for the area due to the type of people who are likely to live there and the potential for anti-social behaviour; the traffic and parking issues that would result; the bulk and scale of the proposal, which they considered to be an overdevelopment; and the loss in value of their properties. The adjoining owner at 62 Lorraine Street was also concerned about privacy impacts from the windows facing her back garden, the blank two storey wall, type of trees for screening, existing sewage problems, security and construction impacts. The objectors in Isaac Street considered that the rear windows and balconies would overlook their properties and that the traffic entering the car park would result in noise, light spillage and safety impacts.
2. Statements of Evidence and Joint Reports were tendered from the following experts: For the applicant Mr E Sarich, planning consultant Mr N Lycenko, architect for the proposal Mr S Cooper, acoustic consultant Mr S Gauld, acoustic consultant For the council Mr D Ryan, planning consultant Mr M Zanardo, architect Dr R Tonin, acoustic consultant
3. The experts were not required for cross examination as they had reached agreement that the contentions relevant to their expertise had been resolved through the further amended plans and conditions. The key changes include: 1. the relocation of the communal open space and common room to the north east end of the building and deletion of a boarding room to improve amenity and outlook (Contentions 4, 7, 9 and 12); 2. the provision of landscape screen planting on the northern boundary and privacy louvres to windows that are setback from the boundary about eight metres, which together with the changes in (1) minimise impacts on 62 Lorraine Street (Contentions 4); 3. the deletion of a boarding room, change three balconies to Juliette balconies, setback and landscaping at the rear of the building to minimise privacy and streetscape impacts on the properties in Isaac Street, and overshadowing to the first floor terraces at the rear of 66 Lorraine Street (Contentions 6 and 9); 4. increased setback and deep soil landscaping to respond to the streetscape character and relationship with 62 Lorraine Street (Contentions 7 and 9); 5. changes to rooms 5, 6, 10 and 11 to address acoustic issues and improve internal amenity (Contention 12).
4. I accept the experts' evidence that the matters raised in the Contentions have been adequately addressed and resolved through the amendments to the application and the proposed conditions.
5. The additional matters raised by the objectors are not matters that were raised or pressed by council. The objectors' concerns principally relate to the proposed boarding house use and its impacts on their residential amenity. The use is permissible under both the LEP and SEPP ARH and complies with the provisions of both instruments and is clearly a form of development that is envisaged by the planning controls and its impacts must be assessed within this statutory framework.
6. The site is located at a zone boundary and adjoins residential development. In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at [25] Bly C discussed principles that apply to development at a zone interface. He states at [25]: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south­east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.
7. In applying these principles, the proposed development has not sought to maximise its development potential. It has a FSR and height which are below the FSR of 1.5:1 that is permissible under cl 4.4 and the 9m height limit in cl 4.3 of the LEP. Through the amendments, the proposal has minimised privacy impacts and addressed the streetscape character of a business zone adjoining residential uses. Parking for the boarding house use meets the requirements of SEPP ARH and cannot be a reason to refuse the application. The parking for the neighbourhood shop or business premises does not comply with the numerical requirements in the DCP, however, the applicant has submitted a traffic report, which has been reviewed and accepted by council, that concludes that the shortfall in is acceptable as there is adequate on-street parking in the vicinity. The proposed boarding house will generate significantly less traffic than a development for other uses that are permissible in the B1 zone, such as business premises or cafes. The other issues raised by objectors would not be reasons to refuse the application.
8. Agreed conditions and amended plans, which incorporate further minor changes such as privacy louvres to the windows of Units 4 and 5, were filed on 11 March, 2015. The conditions include a requirement for a separate development application for the use of the ground floor non-residential space (Condition 2) and that the boarding house must be operated in accordance with a Plan of Management approved by the Council as well as conditions which limit the number of lodgers to 19 people and noise limits (Condition 38-41).
9. For the above reasons, I am satisfied that the Contentions are addressed and that the development consent may be granted.

Orders 1. The appeal is upheld. 2. The development application (DA/2014/0919) for demolition of existing structures and construction of a two storey building comprising non­residential use and parking for six cars at ground floor and a ten room boarding house accommodating a maximum of 19 people at first floor at 64-64A Lorraine Street, Peakhurst, is approved subject to the conditions in Annexure "A". 3. The exhibits, except Exhibits 1, A and B, are returned. Annelise Tuor Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2015