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.