Chehade v Bankstown City Council

Background and the proposal 3The original development application was lodged with the council on 11 March 2011 and was refused on 2 September 2011. The reasons for refusal are summarised as the development is prohibited under the provisions of Bankstown Local Environmental Plan 2001 and is inconsistent with the residential 2(a) zone objectives under that plan; does not provide sufficient car parking; has not satisfactorily addressed stormwater management and is not in the public interest. 4Mr Chehade is appealing the council's decision and was granted leave by the Court to rely on amended plans. Those plans form Exhibits A and B and now resolve the council's contention in relation to stormwater drainage. A Plan of Management (POM) has also been prepared in an attempt to address the council's concerns in relation to the operation of the development. 5The proposed building is partly one and partly two storeys with a face brick finish and tiled roof and follows the fall of the land from the street to the rear. It would be erected on an alignment of 5.5 m to Hillcrest Avenue. The main entry addresses the street and adjoins a garage that would accommodate one car, 2 motor cycles and four bicycles. Eight boarding rooms would be located on this upper level. A further two boarding rooms and common room would be provided at the rear, lower level. Each room is self-contained with private kitchens and bathrooms although laundry facilities would be shared. All rooms are identical in size however the application is for 9 double and one single rooms with a maximum occupancy of 19 persons at any one time.

The site and its context 6The site is rectangular in shape and falls from the front to the rear by approximately 4 m and contains a single storey brick dwelling house with attached carport on its southern side, a garage accessed by a driveway to the north of the dwelling and a free standing shed in the south-western portion of the allotment. 7Dwellings immediately adjoining the site are single storey dwelling houses with a two-storey dual occupancy development currently under construction opposite and a newer two storey dwelling to its immediate south. It is apparent that the area was developed with post war housing of brick and tile construction with large setbacks to the side and rear and that form of housing remains the dominant built form. The area is undergoing transition with evidence of larger two storey single dwellings and a number of dual occupancy developments also of two stories with villa and townhouse development further to the west. Due to the slope of the land, the single storey dwellings step down the site and have a greater bulk at the low point. There is a group home further to the north within a public reserve where Hillcrest Avenue is closed to traffic. 8The site is approximately 800 m to the east of the Bankstown CBD, 450 m from Mount Lewis Infants School and a small group of shops on Wattle Street. The site is 328 m from a bus stop on the northern side of Wattle Street providing access to Punchbowl, Riverwood, Narwee, Beverley Hills, Hurstville and Penshurst Stations and 365 m from a stop on the southern side of that road connecting to Bankstown Station and bus interchange.

The planning controls 9The site is zoned Residential 2(a) under Bankstown Local Environmental Plan 2001 (the LEP). Boarding houses are prohibited in that zone. 10The application was lodged under the provisions of SEPPARH that provide for boarding house development within various residential zones or a land use zone that is equivalent to any of those zones. That policy was amended by State Environmental Planning Policy (Affordable Rental Housing) 2011 (the amending SEPP) on 20 May 2011. Clause 26 did not change and states: 26 Land to which Division applies 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. 11Clause 5 provides for the interpretation of the equivalent zone provisions where a site is not within those zones specified in clause 26 and states: 5 Interpretation-references to equivalent land use zones (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. 12It is common ground that the Director-General has not issued a determination referred to in clause 5(1)(a) and therefore, the Court must form an opinion as to the equivalence of the zone. If the site is not in an "equivalent zone" the policy would not apply and the development would be prohibited under the LEP. 13The amending SEPP introduced new clauses that have the effect of requiring additional considerations in the determination of the application and limiting the areas where boarding houses can be located to an accessible area if in the R2 zone or a zone equivalent to that zone. In particular, Clauses 27, 30A and 54A are relevant and state: 27 Development to which Division applies (1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses. (2) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area. (3) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones. 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 54A Savings and transitional provisions-2011 amendment (1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if: (a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and (b) the development is commenced not later than 2 years after the amendment. (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. 14An accessible area is defined as being: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 15The parties agree that the application is an existing application for the purposes of clause 54A(2) and that the Court has discretion to apply the provisions of the original SEPPARH or the amending SEPP due to the savings and transitional provisions in clause 54A. 16From the evidence provided and in particular a bus timetable for Route 940 (Exhibit C), the site would not be within an accessible area as defined in the amending SEPP because the last bus that runs on Sundays and public holidays would pick up at the northern bus stop prior to 5 pm so the site would not be serviced by bus between 17.00 and 18.00 on Sundays and any day that was a public holiday. The Court notes the variation to this clause is by, according to the planning evidence, between 2-6 minutes on one occasion only with hourly services available at all other times in accordance with the definition. Despite this fact, the effect of the servicing would be the site is not within an accessible area and its development as a boarding house under the amending SEPP would be prohibited in the event the 2(a) zone was found to be a zone equivalent to the R2 residential zone. 17Division 3 of Part 2 of SEPPARH applies boarding houses and the parties agree that the standards contained in the SEPPARH are met and the council raises no contentions in regard to those controls contained in the amending SEPP.

The evidence 18Expert town planning evidence was heard from Mr Bushby for the council and Mr Rowan for the applicant. In relation to the issue of permissibility, their expert report addresses three scenarios, whether the application is permissible under the LEP, secondly, without reliance upon the transitional provisions referred to in clause 54A of the amending SEPP, and thirdly, relying on those transitional provisions as it is agreed the application is an existing application. 19The experts agree that the proposed use would be characterised as a boarding house and is a prohibited form of development within Zone 2(a) under the LEP and therefore, an application relying on scenario 1 could not be made. As the site is not within an accessible area, development could not be approved under scenario 2 unless the 2(a) zone was found to be equivalent to the R1, R3 or R4 zones. Consideration of the equivalent zone issue is discussed below. They agree that scenario 3, that is, applying the savings and transitional provisions to SEPPARH allow the application to be made, determined and consent can be granted, but only if the 2(a) zone is an equivalent zone and the design of the development is compatible with the character of the local area. 20The planning experts agree that the local area includes both sides of Hillcrest Avenue and extends to the north, at least to the public reserve, to the west to Stacey Street, to the east to an undefined point but within the visual catchment of the site and to the south to Wattle Street. They also agree that the floor space ratio (FSR) of the development satisfies the standard for floor space under clause 29 of both SEPPs and cannot be used as a reason for refusal and that the bulk and scale, site layout, carparking provision, provisions of open space and general presentation of the proposed development is compatible with the prevailing local character of the locality. 21They disagree on whether the development is compatible in terms of use and occupancy. Mr Bushby says the prevailing development in the local area is detached single storey dwellings with examples of contemporary two storey development and a youth centre at the periphery of the site's visual catchments with low ambient noise levels. He says the highest density that occurs in the local area is dual occupancy development at a rate of 1 dwelling per 200 sqm land area and that it would be reasonable to expect that most residents are familiar or at least have an informal knowledge of who their neighbours are and that this familiarity is an element that defines the character of the area. He says the boarding house would accommodate up to 20 adults (19 under the POM) and equates that occupancy to a density of 1 room per 68 sqm of land area. He submits that there is a likelihood of a higher turnover of residents due to the affordable or short-term nature of boarding house accommodation, that this occupancy profile is not characteristic of the local area and concludes that, whilst the form of development is satisfactory, its function is not. He is not satisfied that the POM would address his concerns in relation to occupancy and impact on character and says that any form or design of boarding house, even one resulting from the conversion of the existing dwelling on the site with no external change to its built form, would not be compatible in the local area for that reason. 22Mr Rowan disagrees and says that the occupation of single dwellings by a number of different family units such as extended families is not unusual. He says this doesn't change the character of the area and that provided the boarding house is well managed, it wouldn't be any different to the single dwellings in the local area. He is satisfied that the implementation of the matters included in the POM would ensure the function of the boarding house is compatible with the character of the local area, particularly having regard to the more recent development that includes dual occupancy development and also the existing group home to the north of the site. He cites other non-residential uses contemplated by the council in the 2(a) zone that would result in similar impacts such as bed and breakfast establishments, home based family day care centres and housing for older people or people with a disability and says that these are likely to have similar characteristics to the proposed boarding house but would all be acceptable in the zone and are unlikely to impact upon the amenity of the residential area. 23Mr Bushy contends, despite the provisions contained within the POM, that the boarding house has the capacity to accommodate 20 or more lodgers because all of the rooms are of similar size. He says that a boarding house accommodating 20 lodgers requires an on-site manager, associated parking and open space and no such facilities are incorporated in the design of the development. Mr Rowan says the POM limits occupancy and the agreed consent conditions also limit the number of lodgers to a maximum of 19. The experts agree that the development meets all of the relevant controls for such an establishment under SEPPARH however, if the provisions of the amending SEPP are applied, there would be a deficiency in parking of three spaces and to comply, the design of the development would have to be amended. 24Contentions in relation to stormwater drainage have been resolved and a deferred commencement condition agreed that requires the registration of a stormwater drainage easement prior to the consent becoming operative. During the site view, the experts agreed that the sill height of windows of the adjacent property to the south were such that it is likely the rooms in the northern elevation of that dwelling would retain access to three hours sunlight during mid winter. Mr Bushby expressed a desire that elevational solar diagrams were prepared to verify this fact. 25The planners agree that the contention regarding character of the locality addresses the contention of public interest.

Conclusion and findings 26Determination of whether the site is within an equivalent zone for the purposes of SEPPARH is a pre-condition to the grant of consent. The Director-General of the Department of Planning has not made a determination in relation to this issue and had that been the case, the applicant, council, the community and the Court would be well placed to understand the application of the policy. As this has not occurred, each application has to have regard to the provisions of clause 5. Clause 5(1)(b) requires the Court to form an opinion whether the 2(a) zone is a land use zone in which equivalent land uses are permitted to those zones named in clause 26. This requires a review of the land uses permitted in the four residential zones contained within the Standard Instrument - Principal Local Environmental Plan (the Standard Instrument) and those uses permitted in the 2(a) zone under the LEP, having particular regard to the definitions as these vary between the instruments. I have undertaken this review and have excluded the Medium Density R3 and High Density R4 zones as being equivalent to the 2(a) zone, particularly because dwelling houses are not permitted in the R3 zone, other than as attached housing which is three or more dwellings and the R4 zone permits residential flat buildings, neighbourhood shops and shoptop housing, uses prohibited in the 2(a) zone and uses that suggest higher density development than that permitted in that zone. Similarly, I have excluded the B1, B2 and B3 zones due to the considerable differences in permitted uses. 27A more detailed review of the R1 and R2 zones was undertaken and compared to those uses permissible in the 2(a) zone. Those permissible uses are determined from the table included in clause 11 of the LEP and the uses permitted in the R1 and R2 zones added as follows: Development for the purpose of: BLEP Standard Instrument Residential 2 (a) R1 R2 Bed and breakfast establishments • Boarding-houses • • Car parks • Centre based child care centres • • Communications facilities • Community facilities • Dams • Dual occupancies • Dwelling houses • • • Educational establishments • Family day care centres • Family housing • Health consulting rooms • Home based child care centres • Home businesses • • Home offices • • Hospitals • Housing for older people or people with a disability • Landfilling • Marinas • Places of public worship • • Public buildings • Recreation areas • Residential flat buildings • Rowhouses • • Sanctuaries • Shops Neighbourhood Shops only Utility installations • Vehicle repair stations Villas • •

28In addition, group homes are permitted with consent in both the R1 and R2 zones and multi-dwelling housing, hostels, and respite day care centres are uses permitted with consent in the R1 zone. 29The only use common to all three zones is that of a dwelling house and it is clear that the 2(a) zone permits a greater number of land uses (25 in total) than that prescribed in the Standard Instrument in either the R1 (15) or R2 (3) zones. Comparing the R1 and 2(a) zones, uses common to both zones are childcare centres, community facilities, dwelling houses, places of public worship, rowhouses and villas (attached dwellings). A comparison of the R2 and 2(a) zones shows dwelling houses and home offices/businesses/occupations are common however the variation in the number of permitted uses is wide. The Court accepts that it is likely that any council, when adopting its local environmental plan, would add uses to those uses mandated by the Standard Instrument however, that is not a matter that I need to consider. My consideration is limited to that required under clause 5(1)(b). 30That consideration takes into account the land uses (plural) that are permitted and therefore, regard must be had of the set of uses rather that a direct comparison with individual uses. I have also considered the number of uses, and the nature of those uses however, in my opinion, either manner of assessment would lead to the same conclusion that the 2(a) zone is not equivalent to either the R1 or R2 zones under the Standard Instrument. 31Mr Rigg, for the applicant, relied on the decision of Tuor C in Chami v Bankstown City Council NSWLEC 1311 in which the precise question of equivalent zone was considered. On that occasion, the Commissioner concluded the 2(a) zone was equivalent to the R2 zone and, after merit review of the application, upheld the appeal. Mr Rigg urges the Court to have regard to that decision for the sake of comity. 32Consistency in approach is an important consideration in any procedings and has been considered on a number of occassions. Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 provides some guidance and in particular, relevant considerations are: 95 Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. 96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed. 33In this appeal, the Court is obliged to undertake a review of the issue of equivalence. I have reviewed the decision in Chami and note that the Commissioner has undertaken a thorough and comprehensive review of the issues, particularly having regard to proper planning principles. However, I consider that, as required under clause 5(2) of SEPPARH, the assessment 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. There is an obligation to consider the matter on each occasion an application is before a consent authority. In making my determination on the issue, I do not consider that it is necessary to go beyond considering the permitted uses within the two zones. Accordingly, I am of the view that what is required is that I must form an opinion as to whether the 2(a) zone is a land use zone in which equivalent land uses are permitted, in this case the Residential zones in the Standard Instrument. For the reasons stated above, I have found that they are not. This finding means the development application must fail as the proposed use is prohibited in the 2(a) zone and the provisions of SEPPARH do not apply to the land to which the application relates. 34However, if I am wrong, I provide a merit assessment of the remaining contentions on the contingency that the matter should be able to be dealt with between the parties by bringing orders back to me (if I am found to be incorrect and there is a remitter), that being consistent with the objectives of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties. In this regard, the application meets all of the relevant controls under SEPPARH. The application is an existing application for the purposes of the amending SEPP and, apart from the parking requirement, would also comply with the controls contained in that policy. 35Having regard to the local area, I find the design of the development is compatible with that character. Firstly, because the development has been designed to appear as a single dwelling house and fits within the existing streetscape. I agree with the experts that the bulk and scale, site layout, car parking provision, provision of open space and general presentation of the proposed development is compatible with the prevailing local character of the area. Whilst the issue of function also plays a role in determining the character of an area, I do not accept Mr Bushby's evidence that because lodgers will stay for short periods of time and may not be known to neighbours that this contributes to a different character in the area. I also do not accept the comparison of density as he is comparing dwelling units to what are essentially bedrooms. It was agreed between the experts that the council's planning controls would permit the construction of a dual occupancy development on the site and that such a development could, subject to compliance with all relevant controls, contain a total of 10 bedrooms. Accordingly, the occupancy of the development could be similar. 36I am satisfied that the final Plan of Management and the agreed conditions of consent are appropriate and that consent could be granted if the land was found to be in an equivalent zone and the provisions of SEPPARH were applied. I consider that the savings and transitional provisions should be applied consistent to the reasons provided by Tuor C in Huang & Lei v Parramatta City Council [2012] NSWLEC 1077 where the Commissioner says: 24In exercising the discretion, I acknowledge that the normal purpose of a saving clause is to have a savings effect on an 'existing application' by not introducing retrospective controls that are determinative. It preserves a developments permissibility while enabling a consideration of an application's consistency with the planning approach sought by the new controls. It would appear to be fair and reasonable that an application, which was permissible at the time of lodgement, should not be rendered impermissible by a new instrument. Rather a consideration of the merits of the application, under the Original SEPP ARH, including an assessment of the compatibility of the design with the local area, should be undertaken. 25In the circumstances of this case and in exercising the discretion under cl 54A(2), I find that the application should be determined as if the amending SEPP had not been made. 37The fact that the site would not be within an accessible area as defined in the amending SEPP due to the fact that on Sundays and public holidays, the requisite bus would arrive around 6 minutes earlier than required is not, in my opinion, reason to reject the application and the discretion to apply the provisions of SEPPARH should apply. 38Despite my findings on the merits of the application, consent cannot be granted as a boarding house is prohibited in the Residential 2(a) zone under the provisions of the LEP and the provisions of SEPPARH do not apply to the land. 39The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application DA192/2011, which proposed the demolition of an existing dwelling and associated outbuildings and construction of a 10 room boarding house at 172 Hillcrest Avenue, Mount Lewis, is refused consent. (3)The exhibits, other than exhibits A and 4 are returned. Sue Morris Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2012