Chami v Bankstown City Council [2011] NSWLEC 1311 | Case summary

The evidence 16The Court visited the site and heard evidence from residents whose main concerns were the impact of traffic and parking. Horses, due to the proximity of the racecourse and the stables, use the street and surrounding streets. The residents were concerned the traffic generated by the proposal would affect the safety and well being of the horses and their riders. They were also concerned that inadequate parking was provided on site and that residents would park on the street. 17Expert town planning evidence was heard from Mr P Robinson, for the applicant and Mr L Fletcher, for the council. 18Written submissions and submissions in reply were filed with the Court in relation to the issue of permissibility/equivalent zones following conclusion of the case. Is the boarding house permissible? 19Clause 26 of SEPP ARH provides: This Division applies to land within any of the following land use zones or within a land use zone that is equivalent to any of those zones: (a)Zone R1 General Residential, (b)Zone R2 Low Density Residential, (c)Zone R3 Medium Density Residential, (d)Zone R4 High Density Residential, (e)Zone B1 Neighbourhood Centre, (f)Zone B2 Local Centre, (g)Zone B4 Mixed Use. 20Clause 26 includes all the residential zones under the Standard Instrument, other than Zone 5 Large Lot Residential, and 'boarding houses' are permissible with consent in each of these zones. 21The site is not within any of the zones specified in cl 26 and the parties disagree whether it is within a zone that is 'equivalent' to any of the zones in cl 26. 22Clause 5 of SEPP ARH defines what is meant by a 'land use zone that is equivalent '. It provides: (1)A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act: (a)that the Director-General has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or (b)if no such determination has been made in respect of the particular zone, is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone. (2) An assessment made by a relevant authority under subclause (1) (b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone. (3) In this clause, relevant authority means: (a)the public authority proposing to carry out the development, or on whose behalf the development is proposed to be carried out, or (b)if the development is to be carried out by or on behalf of a person other than a public authority, the consent authority. Note. Land use zones that are named in this Policy are those set out in the standard instrument 23The parties agree that BLEP 2001 is not an environmental planning instrument that has been made pursuant to s 33A (2) of the EPA Act and that a determination under cl 5(1)(a) of SEPP ARH has not been made. Further, they agree that in accordance with s 39(2) of the Land and Environment Court Act 1979 (L&E Act), the Court has the discretion to form the opinion under cl 5(1)(b) as to whether the 2(a) zone under BLEP 2001 permits 'equivalent' land uses to those permitted in any of the zones nominated in cl 26 of SEPP ARH. 24There is no definition of 'equivalent land uses' in SEPP ARH and the Court has not considered its meaning. Therefore, the parties agree that the Court must apply the ordinary meaning conveyed by the provision. Mr Rigg, for the applicant, refers to s33 of the Interpretation Act 1987, and he submits that i n the interpretation of a provision, a construction that would promote the purpose or object of the underlying Act or statutory rule (whether or not that purpose or object is expressly stated) must be preferred to a construction that would not promote the purpose or object of the underlying Act or statutory rule. 25The parties refer to the Macquarie Dictionary which relevantly defines 'equivalent' to mean:

equal in value, measure, force, effect, significance, etc
corresponding in position, function etc 26The parties disagree on the application of the definition to the discretion to be exercised under cl 5(1)(b) of SEPP ARH. Council's submissions 27Mr Seton, for the Council, submits that: "equivalent land uses" is properly interpreted as meaning uses that are the same or are of the same effect..... it is not sufficient for only some of the land uses in the 2(a) - Residential A zone to be the same or of the same effect as the land uses that are permitted in either Zone R1 General Residential or Zone R2 Low Density Residential under the provisions of the Standard Instrument in order for the zones to be equivalent because of the pluralised form of the phrase " equivalent land uses are permitted to those permitted in a named land use zone". The word "uses" and the word "those" in the phrase suggests that in order for the zones to be equivalent the permitted uses in one zone must all be the same or have the same effect as the uses that are permitted in the zone which is asserted to be equivalent in order for those zones to be considered equivalent. 28Mr Seton submits that as the uses in the Zone R1 and Zone R2 are not the same and do not have the same effect as those in the 2(a) zone the Court could not form the opinion that the 2(a) zone in BLEP 2001 is a land use zone in which equivalent land uses are permitted to those permitted in a named land use zone in clause 26 of SEPP ARH. It therefore follows that the proposed boarding house is prohibited, as Division 3 of SEPP ARH does not apply to the development and BLEP 2001 does apply and relevantly prohibits boarding houses on land in the 2(a) zone. Applicant's submissions 29Mr Rigg submits that the ordinary meaning of 'equivalent' does not mean the 'same' or 'identical', but 'corresponding to, of equal effect or force'. He submits that the 2(a) zone under BLEP 2001 is equivalent to the R2 Low Density Residential Zone in cl 26 of SEPP ARH. 30The 2(a) Residential zone permits 'dwelling houses' with consent. The uses permissible with consent for the R2 Low Density Residential zone in the Standard Instrument are 'boarding houses', 'dwelling houses' and 'group homes'. Mr Rigg submits that the land uses in these zones are equivalent in respect of the particular development that is proposed to be carried out. 31Mr Rigg submits that the Court, in forming the opinion whether the 2(a) zone is a zone in which equivalent land uses are permitted to those in the R2 zone, should have regard to:

the particular development proposed to be carried out;
the land uses in each of the zones nominated in clause 26 of the SEPP ARH and the permissible land uses in the 2(a) zone under BLEP 2001;
the zone objectives for both the 2(a) Residential zone under BLEP 2001 and the relevant zone objectives for the R2 zone in the Standard Instrument;
secondary documents such as the equivalent land use zone tables published by the Department of Planning, Bankstown City Council issue paper on the anticipated conversion to the Standard Instrument; and
the physical context of the site and the locality. 32Further, Mr Rigg refers to the aims of SEPP ARH which relevantly include: (a)to provide a consistent planning regime for the provision of affordable rental housing, (b)to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and not-discretionary development standards, 33Mr Rigg submits that that 'the Court ought to prefer a purpose seeking approach to forming the opinion in respect of the equivalent land uses as such an approach promotes the aims, or object, of the SEPP ARH. The aims are clearly to expand the zones in which affordable rental housing is permissible.' Findings 34I accept Mr Rigg's submission. To be an 'equivalent land use zone' for the purpose of cl 26 of SEPP ARH, the Court must be satisfied that the 2(a) zone in BLEP 2001 is a land use zone in which ... equivalent land uses are permitted to those permitted in any of the land use zones specified in cl 26. Mr Rigg submits that the 2(a) zone is equivalent to Zone R2 Low Density Residential. 35I do not accept Mr Seton's submission that the permitted uses in the 2(a) zone must all be the 'same' as the uses that are permissible in Zone R2 Low Density Residential or any other of the land use zones in cl 26 of SEPP ARH. It is unlikely that the list of permissible uses for these zones under the Standard Instrument would be the same as those listed for particular zones under different planning instruments. The inclusion of a use as permissible in Zone R2 Low Density Residential, when this use is not included as a permissible use in the 2(a) zone, does not of itself mean that the zones are not equivalent. If this were the case the provision would have required the respective zones to have the 'same' land uses rather than 'equivalent' land uses. However, I accept that the uses in the respective zones should have the same effect or, as Mr Rigg submits, the uses should ' correspond to or be of equal effect or force'. 36Under the Standard Instrument, for Zone R2 Low Density Residential, 'boarding houses', 'dwelling houses' and 'group homes' are the only uses permitted with consent and 'home occupations' are permitted without consent. Primarily the 'effect' of these uses is to zone land for low density residential use. 37Boarding houses are not permissible in the 2(a) zone under BLEP 2001. The permissible uses include a range of residential accommodation, such as 'bed and breakfast accommodation', 'dual occupancies', 'dwelling houses', 'family housing', 'housing for older people or people with a disability', 'row houses' and villas'. Other uses such as 'child care centres', 'community facilities' and 'educational establishments' are also permissible with consent. Primarily the 'effect' of these uses is to zone land for low density residential use and other consistent uses. 38The permissible land uses in a zone reflect or give effect to the objectives of a zone. The objectives of the 2(a) residential zone include: (a)to complement the single dwelling suburban character of the residential areas of Bankstown City, and (b)to enable dual occupancy, rowhouse and villa development that is otherwise consistent with the objectives of the zone, and 39The objectives of the Zone R2 Low Density Residential include: To provide for the housing need of a community in a low density residential environment. 40The objectives of the 2(a) zone in BLEP 2001 and Zone R2 Low Density Residential are generally for low density residential development and the land uses that are permissible are consistent with this objective. 41Clause 5(2) of SEPP ARH provides that an assessment under sub clause (1)(b) applies 'only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone'. It is therefore also appropriate to consider the particular development proposed to be carried out in the assessment of whether the uses in the respective zones are equivalent. The characteristics of the proposed boarding house use are residential. The definition of 'boarding house' in the Standard Instrument notes that it is a form of residential accommodation. The proposal is a place where people will live for periods greater than three months. The proposed building is low density in scale being single storey with a floor space ratio (FSR) of 0.5:1. 42The inclusion of boarding houses in the limited list of permissible uses in Zone R2 Low Density Residential under the Standard Instrument infers that there is a degree of consistency or compatibility between a boarding house use and a dwelling house use. The boarding house use proposed is similar to the uses in the 2(a) zone, which include dwelling houses as well as other residential accommodation such as dual occupancy, row houses and villas. 43The Director-General has not formally determined the equivalent land uses to meet the requirements of cl 5(1)(a) of SEPP ARH. However, on 5 August 2009 the Department of Planning published equivalent zone tables for the application of the SEPP (Exempt and Complying Development Codes) 2008 in respect of each local government area that had yet to finalise and adopt a local environmental plan conforming to the Standard Instrument. The table for Bankstown Local Government Area equates the 2(a) zone under BLEP 2001 with Zone R2 Low Density Residential under the Standard Instrument. The document has no statutory force and while it provides some guidance I have not given it, or the other documents referred to by Mr Rigg, weight in forming the opinion required under cl 5 (1)(b) of SEPP ARH. 44Finally, I accept Mr Rigg's submission that a purposive approach should be applied to forming the opinion in respect of the equivalent land uses as such an approach promotes the aims of SEPP ARH which include the provision of a consistent planning regime and to expand the zones in which affordable rental housing is permissible. 45While the uses in the 2(a) zone under BLEP 2001 and those in Zone R2 Low Density Residential are not the 'same', I accept that they are of 'equal effect' and that they are therefore 'equivalent' land uses for the purpose of cl 5(1)(b) of SEPP ARH. Therefore the 2(a) zone is an 'equivalent land use zone' for the purposes of cl 26 of SEPP ARH, and the proposal is permissible with consent. Amenity 46Mr Fletcher and Mr Robinson agree that with appropriate conditions of consent and management the proposal would have acceptable amenity impacts. However, they disagree on whether adequate measures are proposed and detailed to ensure the proper management of the proposed development. In particular, Mr Fletcher considered the Plan of Management should be amended to better address matters such as the obligations of visitors and guests, smoking in the courtyard, resident and complaint registers and the role of the manager. 47In Mr Fletcher's opinion, 18 unrelated people living on the premises have the potential to create significant impacts unless appropriately managed. He considered that an on site manager was not required however, a manager should be available at all times to deal with issues if they arise. Mr Seton submits that the Plan of Management should be required as a deferred commencement condition. 48Mr Robinson considered that the demographics of the occupants of the boarding house would be people seeking affordable housing, including single women, students, couples and people working in the racing industry. The rooms are self contained and, in his opinion, the proposal would not result in unacceptable amenity impacts. He considers the Plan of Management to be adequate and Mr Rigg objected to the deferred commencement condition requiring amendments. Findings 49A number of unrelated people living in close proximity has the potential to create adverse amenity impacts. I accept Mr Fletcher's evidence that the Plan of Management should be amended and that it should include the requirement that a manager be able to be contacted at all times to deal with issues, if they arise. Contact details of the manager should also be available to nearby residents so they have a point of contact for complaints. With these measures, I accept the evidence of the experts that the boarding house will achieve acceptable amenity impact. The required amendments should be imposed as a deferred commencement condition. Character 50Mr Fletcher and Mr Robinson agree that the 'streetscape appearance and height of the proposed building is in character with the predominantly one and two storey streetscape of the locality'. However, they disagree on whether the proposal as a whole is consistent with the character of development in the area. 51Mr Fletcher's principal concern related to the 900mm proposed rear setback of the development, which he considered to be different to the pattern of development existing in the locality. He noted that there are examples of sheds and stables which are built to rear and side boundaries but not of habitable rooms or dwellings. He also considered the length of the building and its site coverage to be uncharacteristic. 52Mr Robinson stated that the building presents to the wider area through its height, landscaped front setback and single driveway. Therefore, its built form and landscape setting is, in his opinion, compatible with the locality. 53Mr Robinson considered the area to be changing with increased densities and greater site coverage through villa developments. There are numerous examples of buildings in close proximity to side and rear boundaries, including habitable rooms. In this context, the proposal is consistent with the character of the area. Findings 54Clause 30A of SEPP ARH provides that consent must not be granted unless consideration has been given to whether the design of the development is compatible with the character of the local area. 55The proposal is located in a low density area that is a mixture of detached dwellings, dual occupancies and villa development. Stables and other structures are built to the rear of a number of allotments. Between the dwelling and these structures there is generally a degree of separation and landscaping. The proposed subdivision and a future dwelling in the rear allotment (proposed lot 2) is consistent with this character. However, the location of the boarding house in the 'green zone' and its proximity to the rear boundary (proposed lot 1) is not consistent with the character of the area. It will provide little separation or opportunity for landscaping between the boarding house and its rear boundary and any future development on Lot 2. 56I accept Mr Fletcher's evidence that the rear setback should be increased. This will also reduce the combined length of the buildings, which exceed 30m. The minimum rear setback for villas in s 5.27 of the DCP is 2.5m for non living areas. To achieve greater consistency with the existing and likely future character the rear setback should be increased to a minimum of 2.5m. I acknowledge that this may result in the deletion of one of the boarding house rooms and changes to the courtyard design. This change should be included as a deferred commencement condition. Car parking 57Mr Fletcher and Mr Robinson agree that the proposed car parking and bicycle facilities comply with the requirements of SEPP ARH. However, Mr Fletcher considered that unless properly managed people would park on the street. He and Mr Robinson agree that the Plan of Management should be amended to address car parking management. They also noted that if the landscape strip on the northern boundary were removed the stacked car park arrangement could be eliminated. Findings 58Neither expert raised concerns about the impact of traffic generated by the proposal on the surrounding street system, which was raised by the residents and in Mr Seton's submissions. Council's Assessment Report, which recommended approval of the application, did not consider the proposal would generate significant demand for on street parking or traffic volumes. In the absence of expert evidence to the contrary, I accept that the proposal will have an acceptable traffic impact. The proposed car parking arrangement, suggested by the experts, and changes to the Plan of Management are reasonable and should be incorporated into the deferred commencement conditions discussed previously.

Chami v Bankstown City Council

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cited By (3)