Buman v Newcastle City Council

Site and locality

1. The subject site contains existing structures including three residential buildings and a locally listed heritage item, the former Royal Standard Hotel.
2. The total site area is approximately 1,804m2 and has frontage to Victoria Street and Gosford Road, Adamstown.
3. The site is located in the Adamstown residential area, approximately 110m east of the Brunker Road local shopping area. There are regular public transport services, with a bus stop located on Brunker Road some 140m from the site.
4. The development surrounding the subject site is a mixture of single storey and two storey development, predominately single dwellings with some multi- dwelling sites.
5. The Statement of Significance on the NSW Heritage Register for the item states: "Formerly known as the Royal Standard Hotel, this building is significant as an example of a hotel of the late 19th century and it still retains its chamfered form to the street. The former hotel is now used as flats. The roof form remains as do the original front walls and there is evidence of the fenestration pattern to the two street frontages. The item is historically of local significance as a place of social life in the local community and for its provision of low cost accommodation. Although it has been modified it still retains its essential form and character. Interior features. Date significance updated: 29 Oct 12"
6. The layout of the subject site and the proposed development is detailed in the following extract of the site plan (Exhibit A):

Public submissions

1. The application was publicly notified by the Respondent, 31 submissions were received in objection to the proposed development. The concerns raised by the objectors in respect of the original development application are summarised as follows: 1. that the existing buildings on site are illegal and are occupied by renting boarders; 2. that the use proposed is not permissible in the zone; 3. that the proposed use is located too close to large Department of Housing complexes creating a cluster of social housing issues; 4. that the site is within 200m of a childcare centre making the boarding house use inappropriate; 5. that the proposal will have an unreasonable impact on on-street parking in the vicinity of the site; 6. the existing use of the site has created issues for residents, including noise, antisocial behaviour and violence; 7. that the redevelopment raises fire safety impacts and issues; 8. that the proposal is of a size and scale which will have unreasonable impacts in the area due to the density of occupants; 9. the proposed modifications will impact on the heritage item; 10. that the waste generated by the development will increase; 11. that the proposal will place strain on the existing sewer infrastructure; 12. that the proposed development has insufficient supporting information and requires reports on heritage, social impact, and crime prevention through environmental design; and 13. that the proposed development will negatively impact property prices.
2. At the hearing the Respondent does not press that the issues raised by the residents separately warrant the refusal of the application. I am satisfied that the concerns of the residents are either: addressed by condition, incorporated in the Respondent's contentions, or taken into consideration in the determination of the application.

What is the development for which consent is sought?

1. Pursuant to s 4.12(2) of the EPA Act, a single application may be made in respect of one or more of the types of development referred to in paragraphs (a)-(f) of the definition of development.
2. Pursuant to s 1.5(1) of the EPA Act, 'development' is defined as: 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following - (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument
3. The Applicant sought leave of the Court to amend their development application by notice of motion on 17 March 2020 (the motion). The Registrar granted the motion subject to costs. The orders of the Registrar granted leave to the Applicant to rely on amended and additional plans and material as listed in the schedule to the motion. By reference to the motion, and its annexures, the amendments to the application can be summarised as follows:

• Deletion of timber framed structures/cabins to allow for an expansion of the car park and reduce impact on the heritage item;
• Deletion and relocation of Building E to allow for an expansion of the carpark and provision of an accessible boarding room and bathroom cubicle;
• Expansion of the car park to increase the provision of off-street parking from 6 to 13 car spaces;
• Non-structural internal alterations within Buildings B, C and D to provide larger rooms as well as a communal living room in Building C;
• Bi-fold doors added to the communal area outside Building A and skylight added to covered roof area to improve amenity of communal area;
• Fire Sprinkler system added;
• An overall reduction in rooms to 44; and
• By reference to the amended Statement of Environmental Effects, the description of the proposed development was amended, and consent is no longer sought for the use of Buildings A and C, on the basis that they 'are subject of an existing consent' (Exhibit A).

1. The application before the Court, for which consent is sought, is this amended development application.
2. Relevantly, following the amendment of the development application on 17 March 2020 the Applicant no longer seeks approval for the use of Buildings A and C as a boarding house.
3. By reference to the Applicant's amended Statement of Environmental Effects (Exhibit 2) and the Applicant's written submission (AWS) the amended development application seeks consent for: Use: * Of the whole site as a boarding house. * Approval for the use of 3 additional rooms in Building A. * Those rooms being already in existence on site, but not approved in DA1984-147, namely: the partition of the former dining room into rooms nominated as Room 1 and Room 2; the enclosure of an internal balcony and part of the corridor on the first floor to create Room 23; and the conversion of a bathroom to create Room 24. * Change of use of an existing dwelling, being Building B, to boarding house use. * Use of Building C in its altered configuration. * Change of use of an existing dwelling, being Building D to a boarding house use. * Approval for the use of proposed Building E as a boarding house. Erection of a building: * Erection of a new building, Building E to contain showers and toilets and one accessible boarding room. Relevantly, if consent is granted to the erection of Building E, s 4.19 of the EPA Act authorises the use of the building for the purpose of a boarding house. Carrying out of a work: * Alterations to an existing building, being Building A, comprising: (i) removal of part of an internal wall in Room 4 to create one larger boarding room of 19.8m2; (ii) installation of bi-fold doors in the communal area to create an internal space to the outdoor communal area; (iii) installation of a skylight in the existing roof of the outdoor communal area; and (iv) installation of obscure glazing to an existing verandah opening to Room 24. * Alterations to an existing building, being Building C, comprising: (i) Re-configuring of internal walls to create an internal communal room on the western elevation; (ii) Re-configuring of two rooms and part corridor on the southern side of the building to create two rooms (Rooms 28, 29); (ii) Conversion of former Room 27 into a caretaker's suite. * Alterations to an existing building, being Building B comprising: (i) minor re-configuration of two boarding rooms, laundry and storage area to create boarding rooms generally 12m2. * Alterations existing building, being Building D comprising internal reconfiguration to provide 6 rooms. * Enlargement of the car park to provide 12 car spaces including one accessible space. * The fitting of a fire sprinkler to all buildings, consistent with the Fire Engineering Reports prepared by Building and Fire Surveying Consultants for the subject site. Demolition: * Demolition of an unapproved outdoor shower area and structure containing two boarding rooms. (AWS, 15 May 2020)
4. Ms Berglund for the Respondent summarises the extent of the development sought by the Applicant in similar terms: "The amended development application seeks approval for 'the change of use of two existing residential dwellings to a boarding house, the rebuilding of an accessible boarding room and adjoining bathroom cubicle and reinstatement of an awning between Building A and Building C at the subject site; 67 Victoria Street, Adamstown NSW 2289." (Respondent's written submission (RWS), 21 May 2020, p 2)

Existing consents

1. A key issue contended by the Respondent in the proceedings is the characterisation of the historical consents that apply to the site. The Applicant submits that Buildings A and C already have development consent for use as a boarding house, on the basis of existing consents and approvals. The Respondent does not concede that Buildings A and C have consent for use as a boarding house.
2. The Court was assisted by town planning experts Mr Damian Jaeger, for the Respondent, and Mr Patrick Quinlan, for the Applicant. The experts participated in joint conferencing and produced a joint planning report that was tendered as Exhibit 3. The experts also gave oral evidence in the proceedings.
3. In the joint report, Mr Jaeger provides the following summary of the history of consents for the subject site: "DA1984-147 - Approved as a hostel for the aged (Buildings A & C). The approved floorplans are not reflective the current proposal. Any reference to a later Building Certificate 7 May 2007 is irrelevant. It is additionally advised that the report to 'full Council' recommending approval of the development on 6/11/84 detailed that the aged care hostel was permissible within the Residential 'A' zone under the Northumberland Plan No1 as a aged car hostel under provisions of the then State Environmental Planning Policy No 5. BA1985-0468 - The approved floorplans are not reflective the current proposal (Buildings A & C). It is notable that a large dining and lounge room is provided in the south western corner of Building A. The approval issued under this building application specifically describes the proposal as '..buildings for the purpose of alterations and additions to a nursing home..". It is also notable that this BA approval flows with the DA1984-147 approval above. Notwithstanding that there are various references (e.g. internal memos) to boarding house made by the applicants, and at times building officers, consent issued was not for a boarding house and these internal memos and similar are irrelevant to the question of whether consent exists for a boarding house. DA1989-0215 - The proposal involves additions and change of use to the managers residence (nominally Building C) as part of the existing aged person hostel. The layout of the floorplan is not reflective of the current floor plan. BA1989/01485 - The layout of the floorplan is not reflective of the current floor plan (nominally Building C). The approval issued under this building application specifically describes the proposal as '..additions to hostel..'. It is also notable that this BA approval flows with the DA1989-0215 approval above. BA1992-1961- The approval issued under this building application specifically describes the proposal as '..additions to hostel..'. There was no corresponding previous DA to this BA. The proposed addition consisted of a small storage room to southern side of Building A when the current waste storage is currently located. BA1994-0104 - The approval issued under this building application specifically describes the proposal as '..a sprinkler system and general fire safety upgrade..'. There was no corresponding previous DA to this BA. It is questionable that this consent and associated sprinkler plan is of much relevance to the question of whether a boarding house approval exists, but regardless, the associated plans do not reflect the currently proposed use and layout of Buildings A and C. BC2007-0136 - Building Certificate for a boarding house. This is not a consent and furthermore does not include any internal plan details only showing external layout of buildings. It does not assist in showing any consent exists for a boarding house." (Exhibit 3)
4. Mr Jaeger concludes that the subject site has no existing approval for a boarding house use. He states: 'The consents that have been approved were for an aged care hostel/hostel notwithstanding the Building Certificate issued (BC2007-0136)'. (Exhibit 3)
5. In the alternative Mr Quinlan argues that Buildings A and C as a boarding house had been established both through the applicable consents and the actions of Council over the history of the site. His reasoning is as follows:

• Consent was provided in 1985 for 'alterations and additions to nursing home' for a 'class 3' building. No documentation from the Applicant had been saved, but Mr Quinlan places weight on an internal memo which notes: 'the plans submitted provides for the conversion of an existing nursing home into a boarding house and caretakers residence and the erection of a new detached 5 bedroom building'.(Exhibit 3)
• Mr Quinlan argues that 'It is clear from the consent which was issued in 1985 was to amend the use of the building from an aged care facility to a hostel/ boarding house which was limited to being used by the aged'. (Exhibit 3)
• Subsequent Building Certificates were issued in 1989, 1992, 1994 and 2007.
• Mr Quinlan notes that the description of the site in the 2007 Building Certificate (07/0136) is: Two storey brick, rendered and fibro clad boarding house and single storey hardiplank boarding house. The 2007 Building Certificate applies to Lot 100 DP 715282.
• Mr Quinlan argues that Building Certificates are 'the opportunity for Council to take appropriate enforcement action should a relevant consent or approval not be in place'.(Exhibit 3)
• Finally, he argues that cl 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 provides that Building Applications are to be treated as development consents. As such he argues that BA 1989/01485, BA 1992/1961 and BA 1994/0136 in effect 'provide clear indication that the building (was) considered a boarding house by the Council'. (Exhibit 3)

Do Buildings A and C have consent for a boarding house use?

1. I note that the Respondent's Statement of Facts and Contentions includes the following statement as part of the description of the development: 'The applicants (sic) amended Statement of Environmental Effects (dated March 2020) now claims that Building's "A" and "B" have consent which is in contention" (Exhibit 1). The remaining documentation relevant to the development and the evidence of the expert's reference Buildings A and C. I have adopted this designation over that in the Statement of Facts and Contentions.
2. Mr Pickles SC, for the Applicant places emphasis on the 1989 development consent (DA 147/84) which was granted for the change of use of Buildings A and C from a 'nursing home' to a 'hostel for the aged', along with consent for the erection of Building C. At the time of consent Building C was designated as the manager's flat.
3. By reference to the planning assessment report for the development, Mr Pickles notes that the development is described as: 'being for the purposes of a boarding house'. Mr Pickles acknowledges that the consent describes the approved use as a 'hostel' but gives weight to the engineer's report, and the later Building Application (BA 468/85), that describe the application as a 'conversion of a nursing home to boarding house and caretaker residence'. Further, he submits it is relevant that the assessment of the Building Application notes that the change of use will involve a change in the building classification. Mr Pickles argues this is relevant as follows: "The report also noted that there was a change of classification from the then 1Xa to a class III building. This is consistent with the building being approved for use as a boarding house or a hostel, which were considered to be the same class, whilst a nursing home was considered to be the same class, while a nursing home was regarded as an institution or 'hospital', being a class IX building." (AWS, 15 May 2020, p 4)
4. At the time of consent for the DA 147/84 (the 1984 consent) the relevant planning instrument that applied to the land was the Northumberland Local Environmental Plan No 1 1981 ('Northumberland Plan'). Under the Northumberland Plan the subject site was zoned Residential A. Under Residential A all uses other than those specifically excluded were permissible, or permissible with consent. The listed prohibited uses were: Advertising structures; automotive uses; bulk stores; commercial premises; heliports; hotels; industries (other than home industries and rural industries); junk yards; liquid fuel depots; mortuary chapels; motor showrooms; recreational facilities; residential flat buildings; shops (other than general stores); transport terminals; warehouses.
5. Pursuant to cl 5(1) of the Northumberland Plan it adopted the definitions in the Environmental Planning and Assessment Model Provisions 1980 ('Model Provisions').
6. In his submissions Mr Pickles notes that the Model Provisions provide no definition of 'hostel' or 'hostel of the aged', but that the definition of 'boarding house' is as follows: 'boarding house includes a house let in lodgings or a hostel but does not include a motel' (Exhibit 2)
7. Further, Mr Pickles notes that the Model Provisions provide a definition of 'nursing home' as part of the definition of 'hospital': "'hospital' means a place or building used as a- (a) hospital; (b) sanatorium; (c) health centre; (d) nursing home; or (e) home for aged persons, infirm persons, incurable persons or convalescent persons; Whether public or private, and includes a shop or dispensary used in conjunction herewith, but does not include an institution." (Exhibit 2)
8. Mr Pickles concludes that at the time of the consent a hostel was relevantly included within the meaning of a boarding house.
9. Finally, in relation to the 1984 consent, Mr Pickles argues: "At the time the term 'nursing home' fell within the definition of 'hospital' under Northumberland LEP 1. Accordingly, when the Council granted consent in 1984 for the change of use from 'nursing home' to 'hostel' in the context of the planning instrument then in force, it granted consent for a change from a prohibited 'hospital' to a permissible 'boarding house'. The term 'boarding house' remained the applicable characterisation under Newcastle LEP 1987 as the Model Provisions were also adopted by that instrument and 'hostel' continued to be included within the meaning of the term 'boarding house'." (AWS, 15 May 2020, p 5)
10. Mr Pickles argues that the relevant principles for characterisation of development to be applied are identified in Chamwell v Strathfield Council (2007) 151 LGERA 400 at [27]-[45] ('Chamwell') which was supported by the Court of Appeal in Abret v Wingecarribee Shire Council (2011) 180 LGERA 343 at [49]-[50].
11. Applying the principles in Chamwell, Mr Pickles argues that the use of the premises as a 'hostel for aged persons' was more generally a form of 'boarding house'. His reasoning is as follows:

• That 'boarding house' was the use found in the zoning table that was applicable.
• That there are no provisions in the 1984 consent that mandated the use of the hostel solely for aged persons. For example, there were no conditions on the consent that limited the age or type of occupants.
• The purpose of the use was as a 'boarding house', which the definition made clear could include a house let in lodgings or a hostel.

1. By reference to Grace v Thomas Street Cafe (2007) 159 LGERA 57 at [60] and [89], Mr Pickles notes that the principles of characterisation recognise the 'natural evolution of uses' (AWS, 15 May 2020, p 7). He notes that the development approval in 1992 (refer to [25]) referred to a hostel, without reference to aged persons. Further, he notes that the assessment report and plans reference a boarding house. Mr Pickles concludes that: 'A boarding house was a natural and permissible evolution of that which was approved as a 'hostel for aged persons'' (AWS, 15 May 2020, p 7).
2. Mr Pickles notes that s 4.70(1) of the EPA Act provides that: 'Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force'.
3. Based on the preceding Mr Pickles concludes: "… an existing consent granted under prior planning controls must be construed according to the principle in Chamwell, at [36], set out above. The language used in a development consent granted in 1984 cannot be construed according to the same language as it would be given today. This is evident in the fact that in 1984 hostels and boarding houses had the same characterisation under the instrument that applied at that time." (AWS, 15 May 2020, p 8)
4. Mr Pickles concludes that the correct characterisation of the existing consents is that Buildings A and C have consent for use as a boarding house. Accordingly, consent is not required for change of use and is not sought by the current application.
5. Mr Pickles submits that if the Court was not to accept the Applicant's primary submission on the characterisation of use, as a secondary position the use of Buildings A and C as a hostel is not 'relevantly distinguishable from that of a boarding house under the current LEP'. Accordingly, he argues that there is little practical definition between the two and 'the existing operation could continue to be regarded as a hostel' (AWS, 15 May 2020, p 8).
6. Mr Pickles confirms that an integrated consent for the use of the whole site as a boarding house is sought by the Applicant. Relevantly, boarding houses are permissible with consent in the R3 Medium Residential zone under the group definition of 'residential accommodation'.
7. Finally, Mr Pickles submits that if the Court is not in agreement with the Applicant's submissions of the existence of a consent for boarding house use for Buildings A and C, it is open to the Court to grant consent for the change of use for Buildings A and C to 'boarding house' in the determination of the matter. This submission is accepted by Ms Berglund. (RWS, 21 May 2020, p 2)
8. Ms Berglund submits that the Respondent does not accept that Buildings A and C have development consent for use as a boarding house. Based on Mr Jaeger's evidence, the Respondent's position is summarised as follows:

• Building A does not have development consent for use as a boarding house. The consent was granted for a hostel of the aged, which is not the same use. Further, the building layout does not reflect the consent.
• Adopting the evidence of Mr Jaeger, summarised at [26], Building C does not have consent for use as a boarding house and similarly its layout is not reflective of the consent that was granted.
• That even if Buildings A and C have consent, they are not currently being operated pursuant to that consent.
• (RWS, 21 May 2020, p 4)

1. In response to Mr Pickles' submissions on characterisation, Ms Berglund argues that he overlooks the role of State Environmental Planning Policy No 5- Housing for Older People or People with a Disability (SEPP 5). At the time the 1984 consent was granted for use as a hostel for the aged, SEPP 5 was in force and applied to the land. Under SEPP 5 'Hostel for aged persons' was a use permissible, despite it not being defined in the Northumberland LEP. Further, she argues: 'A hostel was for aged or disabled persons and anyone else was only permitted to reside there if living with an aged or disabled person. It was a use clearly distinguishable from a boarding house.' (RWS, 21 May 2020, p 5)
2. Ms Berglund argues that the following evidence, in the determination and the assessment report, support the conclusion that development consent was granted to 'hostel for the aged' and that SEPP 5 was relevant to the assessment of the application. 1. The Notice of Determination for the 1984 consent grants consent for "a hostel for the aged'; 2. The assessment report for the 1984 consent refers to 'conversion of an existing nursing home… into a hostel for the aged'. Further the assessment report refers to SEPP 5 and includes an assessment of the suitability of the site and Applicant for providing accommodation to aged persons; 3. The assessment report for the 1984 consent represented an amendment to the application, which in its earlier iteration was for a boarding house. Ms Berglund notes 'In addition to the change of description from 'boarding house' to 'hostel for the aged', the only reference to SEPP 5 in the earlier assessment report is to note the proposal would fall short of its criteria for open space'. (RWS, 21 May 2020, p 5) 4. 'A comparison of the two assessment reports demonstrates that the development consent sought and granted in 1984 was specifically for a 'hostel' under the meaning in SEPP 5 and was actively amended to that use from an earlier version of the application for a boarding house'. (RWS, 21 May 2020, p 6)
3. Ms Berglund argues that Mr Pickles places undue weight on the absence of a condition in the 1984 consent restricting the occupation of the site to only aged persons or their carer's. She submits that the Court would accept the evidence of the planning experts that the practice of placing conditions on consents was different in 1984, and that conditions were often less detailed. Further, she argues that characterising the whole consent based on the absence of a condition is unreasonable, and arguably an inference could be drawn that such a condition was unnecessary as it was self-evident from the description of the use as 'hostel for the aged'.
4. Ms Berglund argues that the Respondent's characterisation is supported by DA/1989/0215 which approved: 'alterations and additions to existing aged persons hostel'. (Exhibit 2)
5. In response to Mr Quinlan's evidence in relation to BC2007-0136, Ms Berglund submits that a building certificate is not a development consent. Further, she submits that the assumptions Mr Quinlan draws that the issue of a Building Certificate demonstrated that the "Council officers were comfortable that the site reflected a boarding house use" are not supported on the basis of the issue of the certificate. (RWS, 21 May 2020, p 6)

Consideration

1. As emphasised by Preston CJ in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 (Hunter Industrial v Dungog) at [289] the consent authority, in this case the Court is 'required to consider and determine the development application that had been made'. In assessing the application, the Court must take into consideration such of the matters in s 4.15(1) of the EPA Act that are relevant to the development the subject of the development application. The making, assessment and consideration of a development application requires identification and description of the development for which consent is sought.
2. Further, if the Court determines to grant conditional consent to the development, those conditions, pursuant to s 4.17(1)(a) of the EPA Act, need to relate to the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development. Development being that which is the subject of the consent or "the development the subject of the development application": s 4.17(1)(g) of the EPA Act.
3. Preston CJ outlines this in Hunter Industrial v Dungog, at [285]: "A development application seeks consent to carry out the particular development described in the application. A development application is determined by the granting or refusing of consent to that application. A development consent is therefore the determination of a development application by the grant of consent to the development for which consent was sought in that development application. A purported exercise of the power to grant development consent will not be valid unless it constitutes "the granting of consent to that application" (the words of the former s 91(1)(a)) or "granting consent to the application" (the words of the current s 4.16(1)(a)): see Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [13] and Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737. As Basten JA framed the proposition, "that to which the consent is given must accord with that for which application had been made": GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [44]."
4. Hunter Industrial v Dungog also cites the decision of the High Court in Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 which at [14] states: "A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought."
5. The consent authority must consider such of the matters in s 4.15(1) of the EPA Act as are of relevance to the 'development the subject of the development application'.
6. The Respondent's Amended Statement of Facts and Contentions details contention 1 in the following terms: 'The amended proposal as detailed with the applicants amended Statement of Environmental Effects dated 4 March 2020 removes Building's A and C and nominated a Building E as being relocated. This is a significant change to the application refused by the Council and otherwise the subject of the Land and Environment Court appeal.' (Exhibit 1)
7. The amendment to the development application, addressed by contention 1, was affected by orders of the Court on 17 March 2020. Those orders granted leave to the Applicant to amend their development application along with other consequential orders. It is this amended application that was the subject of the hearing. In that context, contention 1 is superfluous. An argument as to the significance or merit of the amendment was an argument that was relevant to the Court's exercise of discretion in March 2020 when the amendment was granted.
8. I accept Mr Pickles' submission that: 'Contention 1, does not, in terms contend anything the Court now has to decide. What is described as a significant change to the application does not preclude the Court from approving it. In any event, the Court has already granted leave to the amendment and leave to amend was not opposed by the Council. Whether those changes to the DA are large or small is a matter which ought, if it were a concern, have been argued against the grant of leave to rely on the amended plans, but it was not.' (AWS, 15 May 2020, p 9)
9. The particulars of contention 1, although not related to the contention itself, are the matters to which the parties have provided evidence and submissions. For the reasons that follow I am satisfied that it is not necessary, as part of these proceedings, to determine if Buildings A and C have consent for a boarding house use, or another use that has the same characterisation as a boarding house. 1. In its Class 1 jurisdiction the Court has jurisdiction to hear and dispose of appeals under s 8.7 of the EPA Act. On appeal, the Court exercises the functions of the Council as the consent authority, under s 4.16(1) of the EPA Act, to determine the development application (see s 8.14(2) of the EPA Act). The exercise of power can only relate to the development application. The task of the Court is to determine the development for which consent is sought. In these proceedings consent is sought for the forms of development listed at [21]. These matters, and necessarily the contentions between the parties, are the focus of the Court's assessment and determination. 2. An Applicant is entitled to apply for the form of development they seek, and one application may be made in respect of one or more of the types of development referred to in paragraphs: s 4.12(2) of the EPA Act. In the current proceedings, the particulars of the development sought are detailed at [21]. 3. The Applicant does not seek a change of use or establishment of use for Buildings A and C, other than the additional three rooms. I am satisfied that the determination of the appropriateness of the grant of consent for the use of these three rooms affected the works (refer to [21]) does not rely on determining the characterisation of the existing consents. The use of those three rooms is capable of being approved under either SEPP ARH or LEP 2012 as both provide 'boarding houses' as a permissible use. 4. The development application is determined by the granting or refusing of consent to the application: s 4.16(1) of the EPA Act. An exercise of power under s 4.16 to grant development consent will not be valid unless it constitutes a consent to the development application that was made to the consent authority (as amended under cl 55 of the Regulation as applicable in this case): Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508: [2001] NSWCA 17 at [13]; Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison) at [737]; Ku-rung-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [202]. 5. Despite Ms Berglund's submissions, in the Amended Statement of Facts and Contentions the Respondent concedes that: 'There is consent for Building C to be used as a boarding house, but the current layout and proposed layout require consent'. The Applicant seeks consent to undertake works to alter Building C. Those works will create a new communal room, reconfiguration of the existing rooms (with no increase in boarding rooms) and the conversion of former Room 27 into a caretaker's suite. 6. The Applicant seeks consent for the works involved in the reconfiguration of the rooms, the use of those reconfigured rooms, but not a change of use from that granted by DA1989-0215 and BA1989/01485 (refer to [25]). 7. The use of the three rooms affected by the works are capable of being approved under either SEPP ARH or LEP 2012 as both provide that 'boarding houses' are a permissible use. 8. The Court cannot grant consent for development that is not sought by the Applicant. To do so would not be a determination of the development application that had been made by "granting consent to the application": Hunter Industrial v Dungog, at [298]. The Applicant has expressly chosen to amend their development application to exclude the seeking of consent for the use of Buildings A and C as a boarding house. 9. The Applicant does seek consent for the use of the whole of the site for a boarding house. This, in effect, would apply to the land outside the external walls of Building's A and C and encompass the remainder of the site. I am satisfied that whether Buildings A and C have consent for a boarding house use, or a use that can be characterised as such, is not a matter relevant to the consideration of this component of the development sought or to the consideration of the matters in s 4.15(1) of the EPA Act that are relevant to the development the subject of the development application. 10. I am satisfied that the question of whether Buildings A and C have consent for a boarding house use does not arise in relation to the Court's determination of whether to grant consent to the development sought by the Applicant.
10. The Respondent raises no objection to the works proposed to be carried out in Buildings A and C.
11. In considering the remaining contentions advanced by the Respondent their applicability must be directed to the development sought. For example:

• The Respondent in its second contention argues that the proposal is not consistent with the provisions of SEPP ARH with respect to communal living rooms, parking, room sizes, solar access and open space.
• In its third contention the Respondent argues that the proposed development is not acceptable in terms of parking and parking impacts having regard to the provisions of SEPP ARH.

1. I am satisfied that in undertaking the assessment and determination of the development application, the Court, as the consent authority is required to take into consideration such of the provisions of SEPP ARH as are of relevance to the development the subject of the development application: s 4.15 of the EPA Act. These provisions are not directed to the Buildings A and C, except for the extent of works in these buildings proposed by the application.
2. Further, the assessment of the impacts arising from the development are those impacts that relate to the development for which consent is sought. I accept the submission of Ms Berglund that as consent is sought for the use of the whole site as a coordinated boarding house use it is appropriate that any impact of that use be assessed by the Court. But that assessment is directed to any impact that arises from any works or increase in use, or intensity, sought by the application.
3. I accept the submission of Mr Pickles that the need for compliance with the provisions of SEPP ARH is directed to the development proposed. This is consistent with the findings of Commissioner Morris in Petrovski v Inner West Council [2017] NSWLEC 1287 at [60] and the framing of the chapeau in s 4.15 and s 4.17(1) of the EPA Act. In other words, the determination of matters such as the parking requirements is directed at the proposed development (and any additional demand generated), not the development for which the Applicant does not seek consent.
4. Finally, the Respondent contends that the proposed development is not acceptable in terms of the provisions of the BCA with respect to fire safety, facilities, natural light and ventilation and disabled access.
5. The Respondent submits that Buildings A and C ought to be made compliant with current standards. It seeks to do so by application of cl 94 (1)(b) and cl 94(2) of the Regulation. The particularisation of the development for which consent is sought is relevant in the application of the discretion of the consent authority in undertaking the consideration at cl 94(2) of the Regulation, relevantly 'whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia'.
6. Contention 1 of the Respondent's statement of facts and contentions does not warrant the refusal of the application.

Does the development comply with the standards in SEPP ARH?

1. SEPP ARH provides the following development standards in Division 3 of the instrument relevant to the contentions: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area) - (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if - (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). (5) In this clause - social housing provider does not include a registered community housing provider unless the registered community housing provider is a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth. 30 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.
2. The Respondent contends that the proposed development is not consistent with the following provisions of SEPP ARH: 1. The proposed development does not provide a communal living room(s) as defined by cl 25 of SEPP ARH, namely: "communal living room means a room within a boarding house or on site that is available to all lodgers for recreational purposes, such as a lounge room, dining room, recreation room or games room" 1. Further, the Respondent contends the proposed communal spaces do not meet the solar access requirements of cl 29(2)(c) of at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. 2. The proposed development does not meet the open space requirements at cl 29(2)(d) of SEPP ARH. 3. The proposed development does not meet the provisions of cl 29(2)(e) of SEPP ARH and provides insufficient carparking. Respondent argues that the proposed development generates a parking demand of 24 spaces, including one for an onsite manager. 4. The proposed development does not meet the minimum room sizes detailed at cl 29(2)(f) of SEPP ARH.
3. The Respondent also objects to the allowance in the Plan of Management (POM) of children staying overnight in the boarding rooms and argues that children should be counted as 'lodgers' in applying cl 29(2)(f) of SEPP ARH.

Communal room

1. It is the evidence of Mr Jaeger that the communal living room proposed in Building C is of inadequate size for the number of residents proposed on the site. He emphasises that the provision of communal spaces, including kitchens, dining facilities and living spaces is of increased importance in the current application as there is no provision for these facilities within the boarding rooms.
2. Based on the number and size of the boarding rooms, Mr Jaeger calculates that there could be at least 57 adult lodgers on the subject site. It is his evidence that the size of the communal room proposed is insufficient for this number of boarders.
3. During the hearing the Applicant amended their proposal to incorporate a second window to the proposed communal room in Building C. Further, to improve solar access the Applicant proposes to cut back the external awning to Building C so that it is only 1.4 metres deep in front of the communal open room, and to remove altogether the awning in front of Room 30. These changes would need to be addressed by Conditions, consistent with the Court's directions at [175].
4. After considering these amendments and some updated information from the Applicant, Mr Jaeger was satisfied that the proposed communal room in Building C will achieve 3 hours direct sunlight between 9am and 3pm in mid-winter. He maintains his concerns that the communal living room is inadequate in size.
5. It is Mr Quinlan's evidence that the proposed development meets the mandatory requirement for provision of a communal room at cl 30(1) of SEPP ARH. Further, he argues that the sites provision of two communal spaces (in Building A and Building C) will provide suitable amenity for boarders. Mr Quinlan also accepts that the proposed communal living room in Building C will achieve a minimum of three hours sunlight in mid-winter.

Open Space

1. Mr Jaeger argues that the extent and quality of open space proposed is inappropriate. He notes that cl 29(2)(d) of SEPP ARH provides a criterion of a minimum size of 20m2 area and a minimum width of 3 metres, regardless of position, quality or the number of lodgers on site. Despite numerical compliance Mr Jaeger argues that the proposal is not acceptable on merit as the open space areas are of low amenity and quality.
2. Mr Quinlan notes that the requirement for the provision of open space is a standard that cannot be used to refuse consent: cl 29(2)(d) of SEPP ARH. Further, he notes that the numerical standard is met for the proposed development.

Parking

1. It is Mr Jaeger's evidence that the overall site generates a demand for 24 spaces, including one for an onsite manager. On the basis that there is no planning consent for Buildings A and C, Mr Jaeger argues that any boarding rooms proposed in those buildings are required to be included in the calculation of parking demand.
2. In the alternative Mr Quinlan argues that the parking demand generated by the proposed development requires a further seven spaces, which is accommodated in the extended parking area proposed. Mr Quinlan argues that the proposed development is compliant with the 'do not refuse' standard at cl 29(2)(e) of SEPP ARH. His reasoning is as follows: 1. The site benefits from a consent that currently requires 5 parking spaces. 2. SEPP ARH and the DCP 2012 both have a parking generation rate for boarding houses of 0.5 spaces per boarding room. SEPP ARH also requires provision for a parking space for a boarding house manager. 3. The additional rooms proposed generate a demand for seven spaces (one being an accessible parking space). 4. The site benefits from a consent that required 5 parking spaces: the 1984 consent. 5. That the proposed development makes provision for 12 spaces (one being accessible).
3. Mr Quinlan argues his approach is consistent with the provisions of DCP 2012 which at clause 7.03.02, Part A, control 5 states: "Where a development proposal involves alterations and additions to an existing building, a change in use or an intensification of use, the required on-site parking provision is based on the likely demand arising from the additions or intensification of use as assessed by Council."

Room sizes and children

1. Mr Jaeger identifies the following concerns in relation to the issue of the proposed room sizes:

• The submitted details do not state clearly the number of lodgers proposed per boarding room (i.e. whether they are intended to be for a single lodger: cl 29(2)(f) of SEPP ARH)
• Additionally, an issue arises between the differences between the use of the words 'lodgers' and adult lodgers in cll 29 and 30 of SEPP ARH and ultimately, what is an acceptable maximum number of lodgers for the overall site.
• The submitted POM appears to propose that children are not counted in the determination of the number of 'lodgers' for the purposes of determining compliance with room sizes, open space or the adequacy of communal living rooms.
• With the addition of 1 or 2 children to each of the boarding rooms (both existing and proposed) the total additional boarders on site could increase by 44, to 101.
• The proposition that the total lodgers onsite is not limited (e.g. that children are not counted) would negatively impact on the smallest rooms/undersize rooms and would be unacceptable. Similarly, the larger size rooms 16-25m2 (21.1m2 being the largest proposed) would be appropriate for two lodgers but not for an additional number of children lodgers not counted within the lodger limits.

1. It is Mr Jaeger's evidence that there is relevance to the distinction in wording utilised in cl 29 and cl 30 of SEPP ARH. It is his view that the reference at cl 29(f) to 'lodger' should be read to include children in distinction to cl 30 which references 'adult lodgers'. Applying this approach, the 'do not refuse' room size standard at cl 29(2)(f) of SEPP ARH of 12 sqm for a single lodger would mean room sizes of 12 sqm or less would exclude children.
2. In the alternative Mr Quinlan relies on the Oxford Dictionary definition of 'lodger' as: 'a person who pays to live in somebody's house' to conclude that children who stay at the boarding house as guests of their parents are not lodgers as referenced in SEPP ARH. Further, it is his evidence that, if the position of Mr Jaeger is accepted, and children are considered lodgers the provisions at cl 29 are able to be varied on merit. He argues that on merit the allowance in the POM for children to stay overnight is an acceptable outcome and creates no additional impacts but provides important social, societal and relationship benefits to the child and parent.
3. Mr Quinlan considers it is appropriate for children to be precluded from staying with their parents in those rooms that are below the minimum 12sqm provision in SEPP ARH at cl 29(2)(f). He proposes that such a control could be applied as a condition to the consent.

Submissions

1. Mr Pickles submits that the need for compliance with SEPP ARH only arises in relation to the additional rooms within the approved boarding house Buildings A and C and for the change of the existing dwellings to boarding house rooms. He argues that to require compliance across the whole of the site would be contrary to the aims of SEPP ARH, in particular: (c) to facilitate the retention and mitigate the loss of existing affordable rental housing (AWS, 15 May 2020, p 11).
2. Mr Pickles submits that the appropriateness of the communal living room should be considered in the context that SEPP ARH provides no minimum size; the proposed communal room will receive 3 hours sunlight in mid-winter; and the existing communal area adjacent Building A is to be improved by the addition of folding doors and skylights. Noting that the standard at cl 29(2)(c) of SEPP ARH is a 'do not refuse standard', Mr Pickles submits it is met by the proposed development. Further, he submits that the development standard at cl 30(1)(a) of SEPP ARH, requiring the provision of a communal room if a boarding house has more than five rooms, is met by the development.
3. In relation to the 'do not refuse' standard for the provision of private open space, Mr Pickles argues that the numerical requirement at cl 29(2)(d) of SEPP ARH, is met by the proposed development. Further, he notes that Mr Jaeger retreated from his evidence that the site lacked sufficient open space in his oral evidence. Mr Pickles concludes that the provision of open space is not a reason for the refusal of the application.
4. Mr Pickles submits that when the parking rates provided at cl 29(2)(e) of SEPP ARH are applied to the proposed development it generates a demand for 10 additional spaces. He notes that the subject site current provides parking for four vehicles, generating a requirement of six spaces. The proposed development includes provision of 12 spaces, including a disabled space. On this basis the shortfall for the development to meet the 'do not refuse' standard is two vehicle parking spaces. Mr Pickles argues that in considering the merits of the variation sought the Court should give weight to the provisions of DCP 2012 which detail the Council's approach to parking variations. He submits that the provisions of clause 7.03.02 of DCP 2012 support the approach that the Applicant has taken to parking provision and that the accessibility of the site to public transport, the availability of unrestricted kerbside parking, and the streetscape and heritage constraints are factors that warrant a variation to parking.
5. Clause 7.03.02 Parking Provision in Part A of DCP 2012 states: "… 5. Where a development proposal involves alterations or additions to an existing building, a change in use or an intensification of use, the required on-site parking provision is based on the likely demand arising from the additions or the intensification of use, as assessed by Council. The possibility of a future change of use is also considered when preparing a development proposal and, if appropriate, due allowance made for provision of supplementary parking spaces. This applies particularly to premises being constructed for leasing or renting or in those premises where the type of occupation could be subject to variation. Failure to provide adequate parking spaces under these circumstances could result in the refusal of a future development application for a change of use. …"
6. Clause 7.03.02 Variations to Parking Rates in Part B of DCP 2012 states: "Objectives 1. Allow variations to on site provision of parking Controls 1. Applicants comprehensively justify any departure from the parking rates set out in Table 1 in the Statement of Environmental Effects or Traffic Impact Study. 2. Council has regard to the following when considering any departures from the parking rates set out in Table 1: (a) the size and nature of the development, including any change of use proposed, the amount of additional floor area relative to the existing floor area and the increased parking demand likely to be generated. (b) the applicability of other Council policies (c) the mix of uses, the hours of operation and timing of peak demand for each use, including any overlap of parking demand (d) results of any comprehensive parking survey submitted in support of the application (e) whether a Green Travel Plan has been provided and a written agreement between Council and the owner/occupier is established for implementation of the Green Travel Plan (f) whether a car sharing scheme is proposed to be implemented (g) access to public transport services and the probable transport mode of staff and patrons or customers of the development (h) availability and accessibility of public parking facilities in the vicinity of the proposed development (i) the availability of kerb-side parking opportunities in the vicinity of the proposed development (j) continuity, streetscape and heritage significance (k) existing and likely future traffic volumes on the surrounding road network, traffic circulation and safety (l) the impacts of providing on-site parking (m) anticipated impacts of not providing for adequate on-site car parking. 3. For alterations, additions or change of use of an existing building, a departure from the rates set out in Table 1 may be considered if a historic parking deficiency applies. However, a historic parking deficiency does not apply in the case of total redevelopment of a site. …"
7. Mr Pickles concludes that the 'small deficiency in the provision of car parking relative to the DCP standard and the 'must not refuse' standard in the SEPP is not a basis on which to refuse the application' (AWS, 15 May 2020, p 15).
8. In relation to room sizes it is Mr Pickles' submission that the standard at cl 29(2)(f) of SEPP ARH is a 'must not refuse' standard. He argues that the minor non-compliance proposed should be considered by the Court in the context of the following factors:

• Rooms of a similar size (less than 12sqm) exist and have operated successfully in the existing buildings
• The proposed rooms will provide functional and affordable accommodation.

1. Mr Pickles disagrees with Mr Jaeger that child visitors should be regarded as 'lodgers' for the purposes of cl 29(2)(f) of SEPP ARH as they are not permanent boarders. He argues that: 'The structure of SEPP (ARH) is clear. Clause 29 contains requirements for room sizes depending on the intended occupancy. Clause 30 contains an overall limit on the number of adult lodgers in a room at 2. Yet, it is entirely silent about children. It must, therefore, be concluded that it was not intended to impose any restriction on the number of children that may visit or even occupy a room as boarders' (AWS, 15 May 2020, p 13).
2. Further, Mr Pickles submits it is not appropriate for a condition to be applied to the consent imposing a limitation on children of occupants who may stay from time to time. He concludes that, in his view, there would be no legal basis to impose any restrictions on children who are in the care of their parents in the boarding rooms.
3. Relying on the evidence of Mr Jaeger, Ms Berglund submits that in the absence of a development consent for Buildings A and C, or alternatively no consent for the boarding house in the layout in which it is currently operated, compliance with SEPP ARH is required for the whole site. Further, Ms Berglund submits that in assessing the development application on merit the amenity of the residents of the boarding house is unacceptable due to the inconsistencies with the provisions of SEPP ARH (RWS, 21 May 2020, p 7).
4. Ms Berglund submits that the poor amenity and the SEPP ARH non-compliances are exacerbated by the proposal to permit children to stay overnight. Ms Berglund argues this provision of the POM creates uncertainty regarding the overall number of boarders on the site. She submits it is the Respondent's primary position that children should not be allowed to stay on site overnight.
5. Ms Berglund does not accept Mr Pickles' submissions on the interpretation of cll 29 and 30 of SEPP ARH. She argues: "In relation to the interpretation of clauses 29 and 30 of SEPP ARH, the Respondent does not accept the Applicant's assertion that because clause 30 refers to "adult lodgers" and is silent on child lodgers that it must mean they are excluded from being counted as lodgers. It can just as readily be argued that because clause 29(2)(f) refers to simply "lodgers" whereas clause 30 refers to "adult lodgers" that the do not refuse provision is not limited to adults or it would have used the same term "adult lodgers" as in clause 30." (RWS, 21 May 2020, 7).
6. As a secondary position Ms Berglund submits that the Court should impose a condition that limits overnight stay by children to rooms that are over 12m² and for short periods only.
7. In relation to the question of parking provision, Ms Berglund relies on the evidence of Mr Jaeger and submits that the deficiency is significant and unacceptable.

Findings

1. It is appropriate to commence with consideration of the compliance of the proposed development with the preconditions contained in cl 30(1) of SEPP ARH (refer to [71]).
2. Clause 30(1)(a) of SEPP ARH provides that, as a precondition to consent, a boarding house of more than 5 rooms must provide 'at least one communal room'. I am satisfied that the proposed development, by the provision of a communal room in Building C, satisfies this requirement.
3. I am not persuaded by the evidence of the Mr Jaeger that the size and amenity of the proposed communal room in Building C is poor, or warrants the refusal of the development application. I am satisfied that the communal room is centrally located on the site, is of adequate size, will receive three hours of sunlight (as amended by Exhibit B) and is accessible to residents with a disability. I accept and adopt Mr Quinlan's evidence at [78] in this regard.
4. Clause 30 of SEPP ARH provides a number of other preconditions that are required to be satisfied prior to the grant of consent. In relation to those provisions I make the following findings.
5. Clause 30(1)(b) of SEPP ARH: on the basis of the architectural plans (Exhibit B), I am satisfied that no boarding room will have a gross floor area of more than 25 sqm. This precondition is satisfied.
6. Clause 30(1)(c) of SEPP ARH: the satisfaction of the proposed development with subcl (c) was the subject of evidence and submissions. I am satisfied that when the oral evidence is considered in full it was accepted by the experts that no boarding rooms the subject of the proposed development will be occupied by more than two adult lodgers. I accept their agreement and find that the precondition is met. This precondition is satisfied. Further, the conditions of consent at Annexure A include a condition mandating ongoing compliance: Condition 44.
7. Clause 30(1)(d) of SEPP ARH: on the basis of the architectural plans (Exhibit B), I am satisfied that adequate bathroom and kitchen facilities will be available for the use of the lodgers. I note that in their supplementary expert report Mr Chaplin and Mr Poole agree that the development complies with the requirements for Class 3 buildings in National Construction Code 2019 (NCC 2019) F2.1(b): Provision of Sanitary and other facilities in residential building.
8. Clause 30(1)(e) of SEPP ARH: A caretaker's room is included in Building C satisfying the requirement of this precondition.
9. Clause 30(1)(f) and cl 30(1)(g) of SEPP ARH: subcl (f) has been repealed and subcl (g) is not applicable to the subject development as the site is residentially zoned.
10. Clause 30(1)(h) of SEPP ARH: subcl (h) requires that 'at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms'. The architectural plans nominate spaces for approximately 18 bicycles in a rack adjacent the site entry, meeting the requirement of this provision.
11. However, following the close of the hearing, it was identified by the Court that it was unclear how the proposed development complied with the required provision of motorcycle spaces. The Court, via online Court, requested clarification from the parties and the matter was listed for mention. The parties provided the following submissions: Applicant: "Flowing on from the evidence of the town planners there is a disagreement between the parties as to how many motorcycle spaces are required. The applicant says that 5 motorcycle spaces are required and I understand that the respondent is of the view that 9 motorcycle spaces are required. The discrepancy in numbers is owing to the disagreement about whether or not the site benefits from an existing consent. Whilst the applicant submits that only 5 motorcycle spaces are required to achieve compliance, the applicant has prepared two site plans which demonstrate that compliance can be achieved in either scenario (5 or 9 motorcycle spaces) (both attached for the Court's reference). Accordingly, on this basis the applicant submits that the issue can be dealt with by way of condition of consent and by the inclusion of the plan as an annexure to the conditions. If the Court accepts the applicant's position that 5 motorcycle spaces are required, the applicant proposes that the following condition of consent would be inserted after condition 2(i) of the applicant's conditions of consent filed 15 May 2020 (attached for the Court's reference): "2(ii) to provide on-site motorcycle parking for 5 motorcycles as per the Site Plan prepared by Davidson Graphiix (rev 21-A dated 16 July 2020) at Annexure A to the conditions." In the alternate, if the Court prefers the Council's position that 9 motorcycle spaces are required the applicant proposes that the following condition of consent would be inserted after condition 2(i) of the applicant's conditions of consent filed 15 May 2020: "2(ii) to provide on-site motorcycle parking for 9 motorcycle spaces as per the Site Plan prepared by Davidson Graphiix (rev 22 dated 14 July 2020) at Annexure A to the conditions of consent." (Email correspondence, Mills Oakley on behalf of the Applicant, 16 July 2020) Respondent: "In relation to the question of Cl. 30(1)(g) of SEPP(ARH) and motorcycle parking, Council's position is that a boarding house of 45 rooms would require 9 motorcycle spaces. It is noted that Clause 30 is not a 'do not refuse' Clause and it is understood that this provision is a development standard. To vary the number of required spaces would be a SEPP1 objection. On that basis Council submits 9 motorcycle spaces are required. I confirm that the site plans and the alternate conditions of consent provided under cover of Mr Sandstroms email have been provided to the Council. I advise that the proposal set out in the Applicants email is acceptable to Council. Council agrees that the two site plans and related draft conditions provided by the Applicant demonstrate that compliance can be achieved for either 5 or 9 motorcycle spaces. Accordingly, Council considers that this issue can be dealt with by way of a condition of consent and by the inclusion of a plan as an annexure to the conditions. The alternate plans and draft conditions are acceptable to Council to resolve the matter once a determination is made as to the required number of spaces. Therefore, Councils position is that no further written submissions or evidence is required." (Email correspondence, James Marshall on behalf of the Respondent, 16 July 2020)
12. In addition to the preceding the Applicant provided an updated site plan indicating the capacity of the site to accommodate motorcycle parking. These amended plans are attached at Annexure A to this judgment. The Applicant has not sought leave to rely on an updated site plan.
13. The requirement for the provision of motorcycle parking at cl 30(1)(g) of SEPP ARH is a precondition to consent. As such it is appropriate that any architectural plans are updated to reflect the provision of the motorcycle spaces as part of the development application. The directions at [175] effect this outcome.
14. Recognising the deficit of carparking provision on the subject site (see [123]) and the capacity of the site to meet, and exceed, the required 5 motorcycle spaces I am satisfied, on merit, it is appropriate for the proposed development to provide 9 motorcycle spaces in the location nominated in the Annexed Site Plan prepared by Davidson Graphiix (rev 22 dated 14 July 2020).
15. SEPP ARH provides further development standards at cl 29, which if satisfied, mean that a consent authority must not refuse consent to a development to which the division applies on any of the listed grounds. The standards relevant to the proposed development are detailed in the following.
16. Clause 29(2)(c) of SEPP ARH: Solar Access 'where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter'. I accept and adopt Mr Quinlan's evidence at [78]. I am satisfied that the development (as amended by Exhibit B) will provide a communal room in Building C which meets this standard.
17. Clause 29(2)(d) of SEPP ARH: Private Open Space. It is the agreed oral evidence of the town planning experts that the proposed development meets the numerical standard at cl 29(2)(d)(i) of SEPP ARH. I accept the agreement of the experts.
18. The proposed development does not provide a designated private open space for the caretaker (Exhibit B and Statement of Environmental Effects in Exhibit A). On this analysis the 'do not refuse standard' at cl 29(2)(d) of SEPP ARH is not met. However, on merit I am persuaded that the provision of private open space within the proposed development provides adequate open space to fulfil the functional needs of the manager and the lodgers. The adequacy of the provision of opens space for the manager is not a contention in the proceedings. I find that on merit the adequacy of the provision of private open space does not warrant refusal of the application.
19. Clause 29(2)(e) of SEPP ARH: Parking. As the development is not undertaken by, or on behalf of, a social housing provider the development is required to provide at least 0.5 parking spaces for each boarding room and not more than one parking space for each person employed.
20. I rely on my comments at [64]-[66]. In relation to the question of the demand generated by the proposed development and the 'credit' provided by the existing consents on the site, the oral evidence and cross-examination was extensive. Read fairly I am satisfied that Mr Jaeger accepted the proposition of Mr Pickles that the deficiency in car parking associated with the proposed development is two spaces. In his cross-examination Mr Pickles asserted that this conclusion is derived from the following approach: • 2 spaces from new rooms in Building A • 1 space from new rooms in Building C, • 7 spaces from new rooms in Buildings B, D and E • The existing site has four vehicle parking spaces and two ambulance bays. • Total demand:14 vehicle spaces. • The proposed car park will provide parking for 12 vehicles, inclusive of an accessible space. • Deficit in parking: two vehicle spaces. (Tcpt, 11 May 2020, pp 85-86)
21. I accept that the additional demand generated by the proposed development is 10 additional parking spaces. On this analysis the 'do not refuse standard' at cl 29(2)(e) of SEPP ARH is not met. However, I accept the evidence of Mr Quinlan at [83] that the DCP 2012 at clause 7.03.02 Part A is relevant to the consideration of the proposed variation to the parking rate in SEPP ARH and DCP 2012.
22. I am persuaded that a variation to the do not refuse standard for parking and DCP 2012 is warranted on the following grounds: 1. Applying clause 7.03.02 of DCP 2012 the proposed development is 'alterations and additions to an existing building, a change in use or an intensification of use'. Therefore, consistent with DCP 2012, the focus of the assessment is on the likely demand arising from the additions or intensification. I accept that applying this approach the variation sought is two spaces. 2. The experts agree that the subject site has reasonable public transport access (Tcpt, 11 May 2020, p 87(20)). As detailed in [10] the site is also within walking distance of the Brunker Road local shopping area. 3. The subject site contains a building of heritage significance which is a constraint to the planning of the site. 4. The preceding are factors listed in clause 7.03.02 of DCP 20012 as considerations for the consent authority in considering the merits of a departure from the parking rates. 5. On balance I am satisfied that the anticipated impact of not providing the required spaces is offset by the provision of onsite parking for bicycles, the proximity to regular public transport and local shopping facilities. 6. I am persuaded that it is appropriate to be flexible in applying the provisions of clause 7.03.02 of DCP 2012 in the circumstances of the proposed development and the subject site: s 4.15(3A)(a) of the EPA Act. I find that the proposed development provides sufficient parking.
23. Clause 29(2)(f) of SEPP ARH: Accommodation Size. I accept and prefer the evidence of Mr Quinlan in relation to the Respondent's contentions in regard to the adequacy of the proposed room sizes and the provisions of the POM which seek to allow children to stay overnight. My reasoning is as follows: 1. I note that a boarding room is defined in SEPP ARH as: 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. 1. I accept the evidence of Mr Quinlan that when read in the context of the aims of SEPP ARH, in particular its aim of facilitating the effective delivery of new affordable rental housing, the term 'lodger' used in the instrument is connected with the provision of accommodation for payment. Such an approach is consistent with the definition of 'lodger' in the Macquarie Dictionary as follows: 'lodger: one who lives in hired quarters in another's house' cf boarder 1. I am persuaded by and accept the evidence of Mr Quinlan at [86] and the submissions of Mr Pickles at [96] that the reference to lodgers at cl 29(2)(f) of SEPP ARH is a reference to adult lodgers. 2. I am satisfied that, for those rooms with an area of greater that 12sqm, it is appropriate for children to stay with their parents on an occasional basis. The POM should be updated to reflect this finding. In this context I accept Ms Berglund's submissions in relation to the Respondent's secondary position at [101].
24. In the context of the preceding I am satisfied, notwithstanding the variation to the standard of 12 sqm at cl 29(2)(f) of SEPP ARH, the proposed rooms that have an area of less than 12 sqm the standard are acceptable on merit. I accept and adopt Mr Pickles' submission that despite the variation the rooms provide functional accommodation.
25. Finally, In determining the application, as required by cl 30A of SEPP ARH, I have given consideration as to whether the design of the proposed development is compatible with the character of the local area. I am satisfied that the development is compatible with the character of the locality: Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at 22-31.

What upgrade of the buildings is appropriate with regard to the Regulations?

1. Clauses 93 & 94 of the Regulations state: 93 Fire safety and other considerations (cf clause 66A of EP&A Regulation 1994) (1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building. (2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed use. (3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building's proposed use. Note. The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent. (4) Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4). (5) The matters prescribed by this clause are prescribed for the purposes of section 4.15(1)(a)(iv) of the Act. 94 Consent authority may require buildings to be upgraded (cf clause 66B of EP&A Regulation 1994) (1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where - (a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or (b) the measures contained in the building are inadequate - (i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or (ii) to restrict the spread of fire from the building to other buildings nearby. (c) (Repealed) (2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia. (2A), (2B) (Repealed) (3) The matters prescribed by this clause are prescribed for the purposes of section 4.15(1)(a)(iv) of the Act.
2. The Respondent contends that 'The proposed development is not acceptable in terms of the provisions of the Building Code of Australia (sic) with respect to fire safety, facilities, natural light/ventilation and disabled access' (Exhibit 1).
3. From a town planning perspective Mr Jaeger argues that: 'Insufficient details have been provided to demonstrate how BCA (sic) compliance can be reasonably achieved. Concern is raised that significant additional works would be required to achieve BCA (sic) compliance. In particular concern is raised that Buildings A and C would not be fully included in the requirements to be upgraded in accordance with the BCA (sic) with significant fire safety, disabled access, amenity and public interest ramifications.' (Exhibit 4)
4. In his evidence Mr Quinlan defers to the experts who assisted the Court with expertise in the building code standards, namely the NCC 2019.
5. The Court was assisted by building code experts Mr Tim Chaplin, for the Respondent, and Mr Garry Poole, for the Applicant. The experts participated in joint conferencing and produced a planning report that was tendered as Exhibit 4. The experts also gave oral evidence in the proceedings.
6. At the direction of the Court the experts prepared an addendum to their report to directly address contention 4: the proposed development is not acceptable in terms of the provisions of the Building Code of Australia with respect to fire safety, facilities, natural light/ventilation and disabled access. This report was tendered as Exhibit 5.
7. The most immediate difference between the evidence of the experts is the extent to which they rely on the reports prepared by the Applicant as part of their development application. The Applicant has prepared and file the following reports:

• Building Code Assessment - BCA Report and Fire Safety Improvement Strategy" Prepared by Building Code Advisory Services Pty Ltd - Garry Poole - A1 Accredited Certifier - dated 12 September 2017
• Fire Engineering Report - Building & Fire Surveying Consults Pty Ltd - Russel Grove - C10 Accredited Fire Engineer - dated 9 September 2019

1. It is Mr Chaplin's evidence that: "These reports do not form the basis for imposing the conditions of consent nor are Council consenting to any of the works proposed in the reports as part of any development consent. The assessment of compliance with the conditions of DA consent and any applicable Performance Solution will be undertaken during the assessment of the construction certificate." (Exhibit 4)
2. On that basis Mr Chaplin argues that:

• A detailed BCA (NCC 2019) assessment of the buildings on site has not been provided by the Applicant.
• A site inspection has been undertaken which revealed changes in building classification, substantial unauthorised works and NCC 2019 non-compliances especially in relation to that work.
• The proposed methods of upgrading of the buildings are not a matter of consideration under the development consent but should occur as part of a Construction Certificate application.

1. Mr Chaplin seeks the imposition of the following conditions. These conditions are objected to by the Applicant: "Condition No.13 The building is to be upgraded to meet the Performance Requirements of the National Construction Code, Volume 1 of the Building Code of Australia, for the following Sections:- V. Sections CP1 (a), (g), (i), and(k); CP2, CP4 and CP 8. VI. Sections DP1, DP2, DP3, DP4, DP6 and DP8. VII. EP1.1, EP1.2 and EP1.3. VIII. FP1.3, FP2.1, FP2.5, FP3.1, FP4.1, FP4.2, FP4.3, FP5.1, FP5.2 and FP5.3 Full details are to be included in the application for any construction certificate. (Exhibit 4) Condition No. 14 The buildings are to be provided with adequate means of access for persons with disabilities, to the extent necessary to comply with the Commonwealth Disability (Access to Premises - Buildings) Standards 2010. Full details are to be included in the application for a Construction Certificate." (Exhibit 4)
2. The reference in Condition 13 to "the building" is intended to refer to Buildings A, B, C, D and E (Tcpt, 12 May 2020, p 117).
3. Mr Chaplin argues that the requirements of Condition 13 stipulate only the minimum standards that the building is required to meet. Further, he argues that the construction certificate is the appropriate mechanism for the Applicant to provide detailed documentation to the certifier and for them to ensure compliance with the conditions of development consent and the NCC.
4. It was Mr Chaplin's oral evidence that the fire safety works proposed by the application in the reports detailed at [134] may meet the requirements of proposed Condition 13, but that the assessment of compliance should occur at construction certificate stage (consistent with his evidence in Exhibit 5).
5. In response to Mr Pickles' submissions, that a construction certificate may not be required, Mr Chaplin maintained his view that the proposed installation of a fire sprinkler was an 'alteration to a building' and therefore would require a construction certificate (Tcpt, 12 May 2020, p 106). Further, Mr Chaplin asserts that the assessment required pursuant to cl 94 of the Regulation is addressed by the imposition of proposed Condition 13 (Tcpt, 12 May 2020, p 107). In his reasoning Mr Chaplin, in part, seeks to ensure that 'the work that was previously done without any approval whatsoever is brought up to a certain standard' (Tcpt, 12 May 2020, p 110).
6. Mr Chaplin seeks the imposition of Condition 14, which seeks to address the provision of disabled access on the subject site, under the provisions of Disability (Access to Premises - Building) Standards 2010 (Premises Standard). His reasoning is as follows: 1. The determination of how and where access is to be provided is a matter of consideration by the building certifier, the building designer and the building developer as required by Part 2.2 of the Premises Standard; and 2. The site has been the subject of considerable unauthorised work thereby bypassing the requirements of the Premises Standard. Had the appropriate approvals been sought for the building work, the requirements of Condition 14 would have been applied by Council in relation to those works.

*BOW: Building Occupant warning system **SOU: Sole Occupancy Unit

1. The following essential fire safety measures are proposed for Building D. Item No. Proposed Essential Fire Safety and other measures required by the study Minimum standard of performance, ie. BCA clause and/or Australian Standard number/year Automatic fire suppression system

2.    with fast response heads thought out                                     Performance Solution Report prepared by
      the building
   

3.    Emergency lighting                                                       BFSC Pty Ltd, BCA19 Specification E1.5,
   

4.    Exit signs                                                               Sprinkler to activate building BOW.
   

5.    Paths of travel, stairways, passageways or ramp                          Windows in the southern elevation to be protected externally with a sprinkler head.
   

6.    Portable fire extinguishers                                              BCA Clauses E4.2 & E4.4 AS 2293.1-2004
   

7.    Fire blankets in kitchen                                                 BCA Clauses E4.5, E4.6 & E4.8, AS2293.1-2004
      Provide at least 35mm solid core
   

8.    doors that are self closers to doors to                                  BCA Section D
      SOUs and rooms opening onto
      enclosed corridors,
   

9.    BOWS                                                                     BCA Clause E1.6, AS2444
   

10.    Smoke alarm system throughout the building                               Performance Solution by BFSC Report, AS2444
    

11.   Alarm monitoring                                                         C3.11 (d)(ii)
    

12.   Windows within 1.5m of the southern boundary                             BCA Specification E1.5 clause 8, Clause 6 (b) Specification E2.2(a)
    

1. It is Mr Poole's evidence that a number of the matters referenced in proposed Condition 13 fall outside the scope of cll 93 and 94 of the Regulation in that they refer to matters beyond fire safety (Exhibit 4). Further, in his oral evidence he opines that the scope of the condition is so extensive it leaves the resolution of issues such as from fire safety, disability access, noise insulation etc to construction certificate (Tcpt, 12 May 2020, p 109)
2. In relation to proposed Condition 14, which seeks to address the provision of disabled access on the subject site, it is Mr Poole's evidence that new work proposed as part of the development application is required to comply with the NCC 2019. However, for the existing works on site his evidence is: "… as an existing development, determination of disability access is not a consideration under EPAA Reg 2000 Clause 93 or 94 for fire and life safety improvements. It should also be noted that disability access and facilities in not a head of consideration under NSW planning legislation. The provisions of disability access falls under Federal Legislation of the Disability Discrimination Act (DDA) and what is commonly known as the Premise Standard- Building 2010. It is only applied when a change in classification, building alterations or additions are proposed and a Construction Certificate or Complying development Certificate is being applied for. It is considered DP1 should be removed as it not applicable to existing development." (Exhibit 4)
3. In the joint report Mr Poole relies on Part A.7.1 of the Premises Standard which he extracts as follows: "A.7.1 Limited application to new parts and 'affected part' in existing buildings When new building work takes place in an existing building and a building approval is required for that new work, the requirements for upgrading access are limited to the area of new work and the 'affected part' (see Subsection 2.1(5) - Affected part on page 30 of this Guideline for more discussion on 'affected part'). For example, if a building owner undertakes renovations on one level of their building an application for building approval triggers the application of the Premises Standards. While the Premises Standards will apply to the area of new work and the 'affected part' of the building they will not apply to the other levels that are not being extended or modified. These areas of the building outside the area of the new work will continue to be subject to the existing DDA complaints provisions." (Exhibit 4)
4. Mr Poole concludes that proposed Condition 14 exceeds the requirements of State and Federal legislation and should not be imposed.
5. In their oral evidence the experts accepted that as part of the proposed development a room suitable for a person with disabilities will be provided including accessible kitchen laundry and bathroom facilities. In addition, the development proposes disabled parking and disabled access to the communal room in Building C.

Submissions

1. It is Mr Pickles' submission that any building upgrade to the existing buildings resulting from the proposed development should be pursuant to cl 94(1)(b) of the Regulation, i.e. on the basis that the existing fire safety measures are inadequate, not on the basis that the proposed works to Buildings A and C are of an extent that would 'trigger' the application of cl 94(1)(a) of the Regulation.
2. Mr Pickles argues that the provisions of cl 94(1)(b) of the Regulation do not mandate compliance with the current NCC 2019 but rather, as stated at cl 94(2), the consent authority is to consider 'whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.' He submits that a partial upgrade of the building in accordance with the Fire Engineering Report is the appropriate satisfaction of this requirement.
3. Further, Mr Pickles submits that the approach of Mr Chaplin of deferring the assessment of the proposed development against cl 94 of the Regulation to Construction Certificate is erroneous as the clause requires such an assessment to be undertaken 'in determining a development application'. He notes that the Respondent raises no concern, in either the contentions or the evidence, as to the content of the Fire Engineering Report.
4. Consistent with the evidence of Mr Poole, Mr Pickles submits that the scope of proposed Condition 14 should not include any reference to the deemed to satisfy provisions of the NCC 2019 in relation to light and ventilation (FP3.1, 4.2, 4.3, 4.4, 4.5, 5.2, and 5.3) as the provisions of cll 93 and 94 of the Regulations are restricted to issues of fire safety.
5. Mr Pickles submits that in his oral evidence Mr Chaplin accepted that the proposed kitchen facilities are acceptable. Further, he submits that 'subject to a condition requiring the installation of a wash basin to the toilet adjacent the covered communal area and the conversion of a laundry to provide for unisex facilities that would cater for women and children visitors and residual concern (of Mr Chaplin) is resolved' (AWS, 15 May 2020, p 19).
6. Mr Pickles submits that there is no requirement under the EPA Act, the Regulation or the NCC 2019 for the existing development to comply with the Premises Standard. Further, if compliance was to be sought, the extent of works to the existing building would be significant and would have a significant impact on the heritage building. Mr Pickles argues that the deferral of the consideration of such works and their impacts to post-consent (Construction Certificate) as sought by the Respondent would be inappropriate.
7. In her submissions Ms Berglund reiterates the Respondent's position that the development application relates to the whole of the subject site and that Buildings A and C should not be excluded from assessment. Ms Berglund argues that the resolution of the contention 'turns on the fundamental dispute regarding whether or not the Applicant requires consent for the use of Buildings A and C and therefore whether those buildings ought to be made compliant with current standards'. Consistent with the evidence of Mr Chaplin, Ms Berglund notes that the Respondent considers it appropriate for the resolution of the extent of upgrade required of the buildings to comply with the NCC 2019 to be 'left to the Construction Certificate stage' (RWS, 21 May 2020, p 8).

Findings

1. I accept the oral submission of Ms Berglund that cl 93 of the Regulation does not apply to the proposed development (Tcpt, 11 May 2020, p 7). As summarised at [157] it is also Mr Pickles' submission that consideration of any upgrade arises from cl 94(1)(b) of the Regulation.
2. For cl 94 of the Regulation to apply to the proposed development the development application must involve 'rebuilding, alteration, enlargement or extension of an existing building'. I am satisfied cl 94(1) applies to the development proposed (refer to [21]) for Buildings A, B, C and D. The provision is drafted so that the circumstances in either of subcl (a) or (b) can apply. I accept the submission of Mr Pickles that the Fire Engineering Reports establish that the existing measures contained in the Buildings A, B, C and D are inadequate to protect persons using the building, and to facilitate their egress from the building, in the event of fire. This is evident from the conclusion of the Fire Engineering Reports. I am satisfied that cl 94(1) of the Regulation applies as the circumstances in sub cl. (b)(i) are established.
3. I am not persuaded by the evidence of Mr Chaplin that the Fire Engineering Reports do not form the basis for the assessment of the proposed development against the provisions of cl 94(1)(b) of the Regulation and that such an assessment is properly deferred to the consideration of a Construction Certificate. My reasoning is as follows: 1. Cl 94(2) of the Regulation states: 'In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia' [emphasis added]. 2. A literal construction of the clause supports the submission of Mr Pickles that the assessment of the proposal and the exercise of discretion is required at the time of the determination of the application. Clause 94(3) of the Regulkation makes it plain that the considerations arising from cl 94 are matters of consideration under s4.15(1)(a)(iv) of the EPA Act, which is concerned with the evaluation of the development application. 3. In Mison, the Court of Appeal held that if a condition imposed on development consent has the effect of leaving an important aspect of the development for a later decision, which may alter the proposed development in a fundamental respect, then the consent is not consent to the application. I am satisfied that considering the fire safety matters identified at cl 94(1)(b) is essential to this proposal and leaving this aspect of the development to be dealt with at the Construction Certificate stage may have the effect of altering the proposed development in a fundamental respect. 4. I accept and adopt the submissions of Mr Pickles at [159].
4. Neither Ms Berglund or Mr Chaplin submit that the content of the Fire Engineering Reports is erroneous or insufficient to meet the provisions of cl 94 of the Regulation. I am satisfied that it is appropriate to condition the consent to require compliance with the recommendations of the Fire Engineering Reports. Such conditions should be prepared by the parties, consistent with the Court's directions at [175].
5. In relation to laundry and bathroom facilities I accept the agreed oral evidence of Mr Chaplin and Mr Poole that it is appropriate to include in any consent a condition requiring the installation of a wash basin to the toilet adjacent the covered communal area and the conversion of a laundry to provide for unisex facilities that would cater for women and children visitors (Tcpt, 12 May 2020, pp 124-125).
6. In relation to the remaining matters sought to be addressed by the Respondent in Condition 13 I find as follows:

• The condition is uncertain in its scope and in the extent of amendments that may be required to the proposed development in order to meet compliance. This form of condition also seeks to defer the assessment of the acceptability of the development to post-construction. Neither support the conclusion that the imposition of the condition is reasonable.
• The matters sought to be addressed by the condition seek to render the existing buildings onsite compliant with current controls under the NCC 2019. I am not persuaded by the evidence of Mr Chaplin that the consideration of the public interest under s 4.15(1)(e) of the EPA Act warrants the imposition of the condition.

1. I am satisfied that proposed Condition 13 should not be imposed. I accept and adopt Mr Poole's evidence at [147].
2. Consistent with the preceding I prefer the evidence of Mr Poole in relation to proposed Condition 14, in particular his evidence at [153] and [155]. I accept the submissions of Mr Pickles at [162]. Further, I find that the condition is uncertain in its scope and in the extent of amendments that may be required to the proposed development in order to meet its requirements. This form of condition also seeks to defer the assessment of the acceptability of the development to post-construction. Neither support the conclusion that the imposition of the condition is reasonable or appropriate in the circumstances.

Will the works have an impact on the significance of the heritage item?

1. At the hearing Ms Berglund confirmed that this contention is on longer pressed by the Respondent. In assessing the development proposed by the application, as required by cl 5.10(4) of LEP 2012, I have considered the effect of the development on the heritage significance of the existing heritage item within the site. I am satisfied that the works proposed will not have a detrimental impact which would warrant the refusal of the application.

Conditions of Consent

1. At the close of the hearing the remaining issue in relation to waste management was the quantity of bins to be provided and stored on site. I am satisfied by the agreed oral evidence of the experts, the architectural plans and site photos that the site has the capacity to store the agreed waste bin breakdown of: 2 x 360L Green bins, 5 x 360L Red bins and 5-7 x 360L Recycling bins.
2. Consistent with the directions at [175], the location of these bins should be nominated in the updated architectural plans and the breakdown of bin provision, their collection arrangements (frequency, location of collection etc) and management arrangements should be reflected in the updated POM. I accept the agreement of the experts that it is appropriate that the amount of waste generated, and the bin provision is reviewed with the Council after a year of operation.

Directions

1. The Court makes the following directions: 1. The Applicant is to update the architectural plans that form part of the development application to incorporate the required 9 motorcycle spaces in accordance with the findings at [113] and the plans at Annexure A. 2. The Applicant is to file and serve the amended plans and documents, reflecting the findings of this judgment, no later than two weeks after the date of the Court's directions. 3. The parties are to file, no later than two weeks after the filing of amended plans and documents, amended consolidated conditions of consent, reflecting the findings of this judgment. 4. Liberty to restore with two days' notice.

Addendum made on 29 September 2020

1. In accordance with the directions at paragraph [175] of my judgment delivered on 6 August 2020, the parties have provided me with a copy of the agreed draft conditions of consent and amended plans. Having formed the view that they accord with my reasons for judgment I am now satisfied that a conditional consent to the development application should be granted. As detailed in the judgment I am satisfied that all relevant jurisdiction preconditions are met.
2. Accordingly, the final orders of the Court are: 1. The appeal is upheld. 2. Development Application DA2017/01319 for the use of the site as a boarding house, demolition, alterations and additions, erection of a new building and associated works at 67 Victoria Street, Adamstown is approved in accordance with the amended plans and conditions set out in Annexure A. 3. The exhibits are returned with the exception of Exhibit 1.

Commissioner of the Court Annexure A: Conditions of Consent Annexure A Conditions (194308, pdf)

Amendments 01 October 2020 - See Addendum for final orders at [176]-[177]. 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: 01 October 2020