Boliaris v Hurstville City Council

The site and its context 3The site comprises Lots 25 and 26 in DP 4817 and Lot 1 in DP 433634 known as No 14 Cook Street, Mortdale. Lot 1 is a 2.5m wide drainage easement that runs along the north eastern side of the site. 4It is a rectangular block with a frontage of 14.695m, depth of 37.98m and site area of 558.4sqm. The land slopes from front to rear with a fall of approximately 2.5m. 5A single storey detached dwelling is erected on the site with a detached garage and carport in the rear northern corner accessed via a driveway over the easement running down the side of the dwelling. 6Development to the south west adjoining the site is a single storey detached dwelling (No 16 Cook Street) and a small lot housing development is currently under construction on the opposite side of the site to its north east (No 12 Cook). That development comprises two attached dwellings. A two storey dwelling adjoins the rear of the site (No 105 Victoria Ave). 7Development in close proximity to the site including on the opposite side of Cook Street comprises generally one and two storey detached dwellings with the Mortdale shopping centre, carpark and railway station further to the south and west. The Ellen Subway intersects with Cook Street almost opposite the site.

Background and the proposal 8The original development application as determined by the council proposed the construction of a one and two storey building containing 10 boarding rooms lodged under the provisions of State Environmental Planning Policy - Affordable Rental Housing (SEPPARH). The council officer report to the council meeting of 27 November 2013 recommended consent be granted however the council resolved to initially defer consideration pending a site inspection and subsequently, at its 10 December 2013 meeting, to refuse the application. The following is a summary of the grounds for refusal:

• Proposal is incompatible with the established and future character of the local area;
• Proposal fails to achieve the amenity objective point 3 under Zone R2 of Hurstville Local Environmental Plan 2012;
• The proposed development will result in adverse amenity impacts due to the number of persons intended to reside on the property and the reliance on access to units and private open space oriented to the side and neighbouring boundaries;
• The site is not suitable for the proposed development;
• The proposed development is not considered to be in the public interest given submissions received and concerns raised. 9In accordance with the Court's standard practice, a conciliation conference was held in February 2014 and evidence heard on site from a number of persons who object to the development as proposed. Whilst no agreement was reached, the applicant prepared amended plans that addressed some of the original contentions in the case. Leave to rely on those plans was granted on 21 March 2014 and the council notified objectors of those plans. 10The plans provide for:
• Demolition of all existing site improvements;
• Construction of a part one and part two storey boarding house comprising 10 boarding rooms (nine double and one single), two of which are accessible; common room; accessible carspace; second parking space, bin store, bicycle parking (4), motor cycle parking (2) and common open space/landscaped area. 11The main changes made to the design from that refused by the council involve the reduction in size and building footprint, internalisation of access to rooms, provision of highlight windows to the central rooms, increased side and rear boundary setbacks and landscaped area.

The planning controls 12The site is in Zone R2 - Low Density Residential under the provisions of Hurstville Local Environmental Plan 2012 (LEP). The objectives of that zone, to which, in accordance with clause 2.3(2), the consent authority must have regard to are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.
• To ensure that a high level of residential amenity is achieved and maintained.
• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.
• To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity. 13Boarding houses are permitted with consent in the R2 zone. Clause 4.4 of the LEP contains a development standard for Floor Space Ratio (FSR) with a maximum 0.6:1 FSR permitted on the site. The FSR proposed is 0.598:1 so complies with that standard. 14Hurstville Development Control Plan 1 (DCP) applies to the site however, according to the evidence, does not contain any specific controls that apply to boarding house development. 15Part 2, Division 3 of SEPPARH applies to boarding houses. Clause 29 contains standards that cannot be used to refuse consent. Those standards are building height, landscaped area, solar access, private open space, parking and accommodation size. The proposal satisfies all of the numerical standards in that clause. The height of the building varies from 5.6m-7.5m and the maximum height that applies to the site is 9m. The communal room would receive in excess of 3 hours sunlight per day in midwinter, an area of 316sqm or 57% of the site is landscaped with the rear yard area (approximately 95sqm) and a terrace area adjoining the proposed common room available as private open space. Parking for 2 cars is provided and the area of the rooms range from 14.2 - 16.6 sqm. 16Clause 30 of SEPPARH is in the following terms: Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house. 17The applicant has prepared a Plan of Management deemed acceptable to the council. That includes controls for room occupancy and details the furnishings to be provided within each room. That is to include single or double beds, cupboards, desk, kitchenette, laundry, shower, washbasin and toilet. All of the standards are met by the proposal with the exception of the motor cycle parking spaces with only 2 spaces proposed. The council did not raise this issue as a contention and accepted a proposal discussed by the planning experts whilst giving evidence that the spaces should be provided at the front, centre of the site. 18Clause 30A is in the following terms: 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.

The issues 19The contentions in the case are:

• The proposed development is out of character with the local area, in particular because of the orientation of the boarding rooms to the side boundaries which is said to be uncharacteristic of residential buildings in the local area, which focus living areas to the front and rear of the sites;
• The proposed development will have an adverse impact on the amenity of the adjoining property due to the number of persons intended to reside on the property and the reliance on private open space oriented to side and neighbouring boundaries.
• The proposed development will have an adverse impact on amenity of the surrounding area due to the above matters, contrary to objective 3 of the R2 zone;
• The proposed intensity of the development results in unacceptable impacts for future residents due to the front of the site being dominated by vehicular access, parking and bin storage which compromises pedestrian safety, particularly for mobility impaired residents;
• The proposal is not in the public interest for the reasons set out in the letters of objection/petition received by the council in response to notification of the development. 20Contentions in relation to accessibility have been resolved through the submission of additional details on plans provided to the Court as Exhibit J, the Revision E plans.

The evidence 21Resident evidence was heard on site at the commencement of the first conciliation conference. That evidence reflects the issues raised in submissions lodged with the council and included in its Bundle of Documents, Exhibit 1. The following is a summary of the issues raised:

• Lack of onsite manager to monitor behaviour of residents;
• Privacy acoustic impacts affecting the amenity of adjoining residents;
• Inadequate provision for car parking, there is an extreme lack of parking associated with the vicinity of the site to the railway station and Mortdale shopping centre;
• Traffic and pedestrian safety concerns;
• Public safety concerns due to the transient nature of occupants;
• Development not in keeping with the single dwelling character of the locality;
• Loss of property values;
• Private commercial venture in a residential street;
• Excessive density;
• Concerned premises will not be maintained;
• Privacy, overlooking impacts;
• Additional driveway crossing will result in the loss of one on-street parking space;
• Overshadowing impacts; 22In addition, the owners of two adjoining properties provided evidence to the Court. The issues raised by those persons are noise, proximity of motor cycle parking space to front entry and second bedroom, traffic issues particularly because of the need to reverse from the site into a busy street, inadequate provision for carparking, elevated private open space and terrace area overlooks rear living room and yard, concerned about safety of children, no provision to drop off groceries or personal items. 23Expert town planning evidence was heard from Mr S McDonald for the council and Mr G Chapman for the applicant. 24They agree that the boarding house has a capacity to accommodate a maximum of 19 persons, that adequate provision has been made to address the DCP accessibility controls, that 6 of the 10 boarding rooms have dual orientation and 3 of the 4 ground floor units are oriented to have doors opening to outdoor space to the side boundary. The amendments made to the plans to indicate how the concerns of council in relation to accessibility are addressed (Exhibit J) resolve contention 2(d). 25They also agree that the boarding house provides for a range of housing types in the R2 zone however disagree whether the development compromises the amenity of the surrounding area or is of an appropriate intensity and in the public interest. 26Mr McDonald says that because the rooms will be occupied as separate individual living areas, the design of the building should orient the major outlook and any private open space of all rooms to the front and rear and not the site boundaries, in order to minimise the potential for visual and noise impacts on neighbours. The proposal for 10 rooms is an overdevelopment of the site forcing some rooms to be oriented to side boundaries resulting in unacceptable amenity impacts to neighbouring properties and unacceptably compromised internal amenity to rooms 7 and 8. He cites rooms 1-3, which have the potential to house 6 persons and says those rooms are in close proximity to the only bedroom window to bedroom 3 approved at No 12 Cook Street. He references the DCP controls for dwelling houses and dual occupancies (clauses 4.1.3.2 and 4.2.3.1) and says that these controls assume that living areas are oriented to the front and rear and not to the side boundaries. The objectives and design principles of those clauses state: Dwelling houses Objectives The landscaping controls for single dwelling houses aim:
• To develop a building setting that encourages visual privacy between properties.
• To provide sufficient and usable private open space in the rear or side yard for the recreational needs of residents and landscape amenity to dwellings.
• To require new development to integrate and blend into the existing streetscape and neighbourhood character.
• To ensure that new development does not result in excessive excavation and protects any natural rock formations, cliffs, canopy vegetation, or any other significant vegetation on the subject land or adjoining land.
• To ensure that new development provides areas for deep soil landscaping catering for indigenous native plants and animals.
• To contribute to water and stormwater efficiency by integrating landscape design with water and stormwater management to reduce stormwater runoff. Design Principles Nil Dual Occupancy Objectives To ensure a more certain building bulk and scale outcome while creating:
• A coherent and attractive streetscape.
• Off-street parking and vegetation corridors at the rear of sites.
• Better opportunities for natural light, ventilation and privacy.
• Design Principles
• Dwellings are private and allow adequate natural light into living areas.
• Windows are provided in all rooms and allow for cross ventilation.
• Dwellings minimise overlooking to adjoining dwellings, and orientate the main living areas to the front and rear, rather than the side boundary.
• Designs include attractive open space that is private, receives sunlight and allows for rainwater infiltration.
• Designs allow for areas of landscaping and retain significant trees.
• Dwellings provide off-street parking for two cars (one garage and one driveway space) and other site services without compromising the above criteria.
• Designs highlight corner sites and relate to both street frontages. 27It was agreed during the hearing that in the case of single dwellings, the controls provide for open space to be oriented to the side of dwellings whereas in the case of dual occupancy developments it is contemplated the living areas will be at the rear of the building. 28Mr Chapman says that the proposed 3 m side boundary setback is considerably greater than the setback controls for a residential dwelling or dual occupancy (0.9 - 1.2m) and notes that the openings on the northern side of the rooms contribute to residential amenity whilst there is no requirement to provide open space to each room. The communal open space required to meet the controls in SEPPARH is provided to the rear of the site adjacent to the common room. He says the privacy impacts to No 12 are mitigated by the increased setbacks, the height of the existing boundary fence and the offsetting of windows consistent with the controls in clause 4.1.3.9 of the DCP. 29It became apparent during the hearing that the plans before the Court did not include sufficient detail to fully understand the treatment of the areas adjacent to rooms 1, 2 and 3. In addition, incorrect levels were shown on the plans. In response to a question from the Court as to whether the issues associated with the designated area adjacent to these rooms was deleted and the area reinstated as landscaped area, Mr McDonald advised that provided the doors incorporated a barrier that prevented direct access from that space or a window, it would overcome the problem. 30On the upper floor, rooms 7 and 8 are centrally located and incorporate north facing highlight windows (sill height 2m) located 5.5m from the boundary. Mr McDonald says that these windows provide poor amenity to the rooms because there is no outlook. Mr Chapman says the amenity of the rooms is acceptable with no privacy impacts and good solar access. They both agreed that a more acceptable solution would be to lower the sill height to 1.6m so as to provide acceptable amenity to the rooms and still address potential privacy impacts to No 12 Cook Street. 31Mr Chapman says that the design of the boarding house ensures that the amenity of the surrounding area is not compromised, with the changes outlined above, any potential impacts are mitigated by the orientation of rooms, setbacks to the side boundary and landscape works. The development has been designed to present a similar form to the residential development in the locality with the front elevation having defined pedestrian entries with the landscape area forward of the building consistent with the streetscape and greater soft landscape area than the approved development at 12 Cook Street. He concludes the development provides for a well-designed housing type which will not adversely impact on the amenity of the local area, is compatible with that area and provides for a range of housing and affordable housing within 100m of Mortdale town centre and 150m from the Mortdale railway station and is in the public interest. 32Mr McDonald disagrees and says the proposal is an overdevelopment of the site, out of character with the existing and anticipated form of residential development in the local area and for those reasons is not in the public interest in the form proposed. 33In relation to those issues raised in evidence by the neighbours, the experts agreed that the two motor cycle parking spaces should be relocated to the centre of the site and the pedestrian access pathway adjusted to accommodate the second space; the south western boundary wall forward of the building line should be of an appropriate height to provide safe access from the adjacent driveway; the common open space area at the rear of the site should be at natural ground level and the upper floor rear balconies off rooms 9 and 10 deleted to address overlooking of the rear property and consequential amendments made to the terrace and ramp access to that space. 34Those changes together with the changes to sill height to rooms 7 and 8 and the deletion of the retained platforms adjacent to rooms 1, 2 and 3 as outlined above were shown on sketch plans and incorporated by the applicant into draft conditions (Exhibit L). 35The council proposed draft without prejudice conditions (Exhibit 4) and these were agreed by the applicant with the exception of the need to provide a BASIX certificate.

Conclusion and findings 36As the result of the proposed changes made to the plans during the hearing and agreed acceptable by the experts, the issues that remain are whether the development compromises the amenity of the surrounding area and is out of character with the local area and in the public interest. 37For consent to be granted, I must be satisfied that, pursuant to clause 30A of SEPPARH, that the design of the development is compatible with the character of the local area. 38Having regard to the evidence, I agree that the deletion of the designated areas adjacent to rooms 1, 2 and 3 along the northern side of the site would satisfactorily address the amenity concerns to No 12 Cook Street. Similarly, I accept the agreed position of the experts that the open space area to the rear of the site should be retained at natural ground level and the upper floor balconies to rooms 9 and 10 deleted to address the privacy concerns of the neighbour to the rear. Those amendments to the plans combined with the generous setbacks to boundaries would ensure that the amenity of those properties is not compromised. Before consent can be granted, these changes should be detailed on proper plans to ensure that the suggested access arrangement and additional landscaping can be achieved at the levels proposed. 39I do not consider, particularly having regard to the DCP controls for dwelling houses, that it is inappropriate to locate open space areas to the side of the development and to do so would be inconsistent with the character of the area. Those DCP controls contemplate open space to both the rear and side of a dwelling house. In this case, the aspect to rooms 2, 3, 4, 7 and 8 is to the north east, a desirable aspect in terms of solar access. The remaining rooms have a similar access and alternate orientation to the street or rear yard. The common room is at the rear of the building and opens to the common open space, which is at the rear of the site. 40The character of the local area comprises a mix of single storey dwelling houses, which are being replaced by larger two storey developments as evidenced from the building currently under construction at 12 Cook Street and the dwelling to the rear of the site. The FSR of the proposal is compliant with that provided for under the LEP. Accordingly, the bulk and scale of the proposal is consistent with that contemplated by the development standard. The design of the building is also compatible with the character of the local area, adopting a similar height, bulk, scale, setbacks and landscaped areas to that of developments in close proximity to the site. 41In relation to the issues raised by objectors to the site and not addressed above, I must have regard to the provisions of clause 29(2)(e) of SEPPARH. Consent cannot be refused if at least 0.2 parking spaces are provided for each boarding room where the site is in an accessible area. Because the site is approximately 150m from the Mortdale railway station, it is in an accessible area and accordingly 2 parking spaces are required under that clause. The development complies with that control and it cannot be used as a ground for refusal. 42Because the site is in such close proximity to the railway station and bus services that connect to the station, residents of the site would have alternate transport options to owning a vehicle. The council has not provided any evidence, other than relying on that presented by objectors who say the road network is busy and they have concerns about people not obeying the stop sign at the nearby intersection and the associated consequences that this action may cause, that the development will result in adverse impacts to the road network. The need to reverse cars onto or off site is similar to all other properties along Cook Street and in this case a maximum of two vehicles will be parked on site whereas the adjoining development No 12 accommodates four vehicles. Provided the fencing that is constructed forward of the building line provides for appropriate sight lines, I am satisfied that the design is appropriate in terms of traffic and pedestrian safety. 43The development is compliant with the provisions of SEPPARH with the exception of the number of motor cycle parking spaces. The council did not raise this as a contention and I am satisfied that the proximity to good public transport and the concerns of residents in relation to noise impacts that the provision of two spaces is acceptable. As the boarding house contains 10 rooms, an on-site manager is not required. 44A number of residents expressed fears about the nature of people who will occupy the property. There is no evidence that those fears will eventuate. Whilst I recognise that concern, the test to be applied is that stated by Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154, where his Honour stated: That the subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them. 45There is no evidence that the development, if approved would affect property values in the area. The boarding house is a use permitted in the R2 zone and is a residential use. 46The council considers the draft Plan of Management to be acceptable and will regulate the occupation of the premises. The increased side boundary setbacks ensure that adequate solar access is enjoyed by adjoining properties and is compliant with the council's control in cl 4.1.3.10 of the DCP. 47For the reasons outlined above, I am satisfied that, subject to receipt of plans that address the changes agreed between the experts, the development could be approved. The development is compliant with the provisions of SEPPARH, its design is compatible with the character of the local area and is not inconsistent with the objectives of the R2 zone. 48Clause 2A to Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (Regulation) requires a BASIX certificate to be submitted with development applications for any BASIX affected building. Clause 3 of the Regulation includes the following definition: BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel. 49Clause 97A of the Regulation is in the following terms: 97A Fulfilment of BASIX commitments (1) This clause applies to the following development: (a) BASIX affected development, (b) any BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied). (2) For the purposes of section 80A (11) of the Act, fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development. 50Accordingly, any consent issued for a BASIX affected building must include a condition that requires the fulfilment of the commitments listed in the BASIX certificate that accompanied the development application. The original development application was accompanied by such a certificate, as required by the Regulation. 51Mr Pickles, for the applicant, submits that a BASIX certificate is not required. That is because he says the building would not contain dwellings but rather boarding rooms. A boarding room is defined in clause 4 of SEPPARH as follows: boarding room means a room or suite of rooms within a boarding house occupied or so constructed or adapted as to be capable of being occupied by one or more lodgers. 52Boarding house in the policy has the same meaning as it has in the Standard Instrument (Local Environmental Plans) Order 2006. boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. 53A dwelling has the following definition: 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. 54As the boarding rooms contain bathrooms, kitchen and laundry facilities they would fall within the definition of a dwelling and therefore would be a BASIX affected building. The only buildings containing dwellings that are excluded from the operation of the provision are hotels and motels. Boarding houses are not so excluded. Accordingly, unless additional evidence to the contrary can be provided, a condition of consent must be imposed requiring the fulfilment of the BASIX certificate commitments. 55Until such time as proper plans are prepared that reflect the agreed position of the experts as outlined above, it is not appropriate that consent be granted. 56Those plans are to be generally in accordance with the details shown in red on the plans referenced SK01 - Exhibit L and must include:

• Fully dimensioned site and floor plans indicating boundary; setbacks, room and hall sizes and finished floor and ground levels;
• Fully detailed elevations including finished floor levels and ridge heights;
• The deletion of the upper floor balconies to rooms 9 and 10 and the openings to be protected by balustrading that is compliant with the Building Code of Australia and not extending beyond the outer face of the building;
• The south western side boundary wall forward of the building line is to be no higher than 500mm above natural ground level at the front boundary including on the return across the frontage. The wall is to be at RL42.52 at the point at which it meets the front building line and entry gate;
• The motorbike parking space adjacent to the south western boundary is to be relocated to a position north east of the central motorbike space and the area adjacent to the south western boundary is to be landscaped with low shrub plantings the central access path is to be adjusted to accommodate the relocated motorbike space;
• The side boundary setbacks and rear common open space areas are to remain at natural ground level. Doors to Rooms 1, 2 or 3 shall only be provided where no more than one step would be required so as to maintain the area as deep soil planting;
• The doors on the north western side of the common room are to be replaced by a window with sill height at 900mm above FFL and 2.7m wide;
• A new opening is to be provided to the common room on the north eastern elevation opening to a terrace. That terrace is not to extend beyond the outer wall of studio 4;
• The disabled access ramp leading from the terrace and common room is to be relocated to the north western side in front of the window to the common room and is to comply with AS 1428.1;
• Drying areas adjacent to rooms 1, 2 and 3 are to be deleted and an additional drying area provided in the rear yard area;
• Relocation of water tank;
• The sill heights to the north east facing windows of studios 7 and 8 to be lowered to be 1600mm above finished floor level;
• The location of the bin store and bicycle parking spaces to be reversed so that the bicycle spaces are adjacent to the side boundary and shared parking zone and the bin store located between the block fence and outer wall enclosing the south western ramp. 57In addition, a landscape plan that reflects the amended architectural plans and provides screen planting around the perimeter of the common open space areas and the amended BASIX certificate is required. 58To allow making of final Orders the applicant is to lodge amended plans and BASIX certificate and the council is to finalise conditions of consent that reflect those plans.

Directions (1)The applicant is to file and serve plans and the amended BASIX certificate that reflect the details in [56] and [57] by 4pm Friday 6 June 2014. (2)The council is to file agreed conditions that reflect those plans by 4pm 13 June 2014.

Sue Morris 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: 23 May 2014