Dib v Canterbury-Bankstown Council

The site and its context

1. The site is located at 82 and 84 Lancaster Avenue, Punchbowl and is legally described as Lots 32 and 33 in DP 11831 respectively.
2. The combined allotment is regular in shape. The site area is approximately 1,871sqm. The site has a primary frontage of approximately 24.38m to Lancaster Avenue and a depth of approximately 76.81m.
3. Due to the underlying subdivision pattern, the site is bounded by a total of eight neighbouring properties. One neighbouring property lies in a south westerly direction at 86 Lancaster Avenue. Another lies in a south easterly direction at 32 James Street. Given the relationship of the subject site to James Street, six neighbouring properties lie in a north easterly direction at 34, 36, 38, 40, 42 and 44 James Street, each presenting their narrower rear boundaries to the longer side boundary at 82 Lancaster Avenue.
4. The site is relatively flat and characterised by gentle topography, falling from the street frontage to the rear of by approximately 3.19m.
5. The site is currently occupied by two, single-storey, detached dwelling houses. These dwellings each benefit from garaging structures and associated outbuildings.
6. The site contains three trees located towards the rear, which are each proposed to be retained. An additional tree is situated outside the site in the public road reservation adjacent to the site boundary and is also proposed to be retained.
7. The immediate vicinity surrounding the site exhibits a consistent urban character. Gentle topography overlain by longer, straight residential streets, with a consistent subdivision pattern, properties of similar frontage, and predominantly single storey detached dwellings each work together to contribute to this consistent character.
8. A small number of nearby dwellings appear to have undergone renewal in recent years to introduce some two-storey forms within the streetscape. There also appears to be a small number of dual occupancy dwellings and multi-dwelling house developments. These each appear to be consistent with the suite of planning controls currently in place.

The planning controls

1. The key relevant planning controls are as follows: 1. State Environmental Planning Policy (Affordable Rental Housing) 2009; 2. State Environmental Planning Policy No 55 - Remediation of Land; 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 4. Bankstown Local Environmental Plan 2015 (BLEP); and 5. Bankstown Development Control Plan 2015 (BDCP).
2. The site is zoned R2 Low Density Residential under the BLEP.
3. Boarding house development is permissible with consent within the R2 zone.
4. Clause 4.1B of the BLEP establishes relevant development standards for boarding houses within the R2 zone of 1,200sqm minimum lot size and 20m minimum lot width.
5. Clause 4.3(2B)(c)(i) of the BLEP establishes further relevant development standards for boarding houses within the R2 zone, being a 9m maximum height of building for a dwelling facing a road, and a maximum wall height of 7m. At subcl (ii) the clause also sets out that the maximum building height for all other dwellings at the rear of the lot is 6 metres and the maximum wall height is 3 metres.
6. Clause 4.4 of the BLEP established a maximum floor space ratio for the site of 0.5:1.
7. Clause 6.1 of the BLEP - dealing with acid sulphate soils - is a relevant consideration and the site is mapped within an area identified as Class 5 Acid Sulfate Soils.
8. The parties generally agree the final amended proposal meets the relevant development standards applicable to a boarding house development within the R2 Low Density Residential zone under the BLEP.

History of the Development Application

1. On 6 October 2020, Development Application DA-845/2020 was lodged with the Respondent by the Applicant.
2. The application was notified between 21 October and 11 November 2020.
3. The application was referred to various internal departments by the Respondent.
4. On 4 December 2020 in correspondence to the Applicant, the Respondent raised a number of concerns with the application.
5. On 22 January 2021, the Applicant filed a Class 1 appeal against the deemed refusal of the application
6. The application remains undetermined by the Respondent.

The issues

1. The contentions set out by the Respondent can be found in the Further Amended Statement of Facts and Contentions forming Exhibit 1 in these proceedings.
2. These contentions are summarised as follows: 1. The Respondent is prohibited from granting consent in accordance with cl 30AA of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 2. The application should be refused as it exceeds the maximum permitted floor space ratio for the site. 3. The application should be refused as the proposal fails to provide adequate motorcycle or bicycle parking as required by SEPP ARH. 4. The application should be refused as the proposal fails to provide sufficient sunlight to boarding rooms as required by the BDCP. 5. The application should be refused as the proposal fails to consider adequate sight lines for pedestrians on Lancaster Avenue. 6. The application should be refused as the proposal fails to satisfy development engineering standards related to drainage. 7. The application should be refused as the proposal was lodged with insufficient information to allow the Respondent to undertake a comprehensive assessment. 8. The application should be refused as the proposal is not suitable for the site as a consequence of cl 30AA of SEPP ARH, which establishes the R2 zone is unsuitable for boarding houses of greater than 12 rooms. Further, the application should be refused as the proposal is similarly incompatible with the character of the local area as required by cl 30A of SEPP ARH. 9. The application should be refused as the proposal is not in the public interest.
3. The parties and their experts now agree the final amended proposal - Exhibit K in these proceedings - incorporates design changes that collectively work towards resolving a series of the contentions.
4. Consequently, Contentions 2, 3, 4, 5 and 6 are no longer pressed by the Respondent.
5. It is helpful to group the remaining live contentions into planning and merit issues as follows: 1. Whether or not cl 30AA of SEPP ARH is a development standard or a prohibition to development. 2. If determined to be a development standard, whether the Applicant's written request pursuant to cl 4.6 of the BLEP adequately justifies the proposed variation to this development standard. 3. Matters of neighbourhood character, the proposed building form and scale, and the site's suitability for a boarding house in excess of 12 rooms. 4. Matters of design and merit, including the adequacy of the proposed communal room, the utility and provision of maintenance access to proposed communal open space, confirmation the lift overrun can be accommodated within the proposed roof form, confirmation of the proposed waste management configuration and procedures, the detailed configuration of the lobby entry, and the proper depiction of the proposal in elevations.

The evidence

1. The Court was assisted by experts in planning, who conferred to prepare a joint report of planning experts. The experts are Mr Warren Terry for the Respondent and Mr Wil Nino for the Applicant. Their joint expert report forms Exhibit 2.
2. Dealing initially with the design and merit issues of Contention 7, Mr Terry set out his view, that although the final amended proposal generally represents an improved design, it includes a communal living room too small to be useful for the maximum number of 42 lodgers able to be accommodated within the boarding house.
3. Mr Nino offered an alternate view noting that cl 30(1)(a) of SEPP ARH requires only that a communal living room be provided, and does not nominate any particular size. Further, Mr Nino noted that such a communal living room is not intended to accommodate the entire resident population. Notwithstanding this, in its proposed form, the communal living room is approximately 4m by 7.4m in size and could be augmented by incorporating boarding room 07, or by providing a roof over the proposed open communal area immediately adjacent.
4. Mr Terry, addressing further particulars of Contention 7, set out the Respondent's concern for constrained access for landscape maintenance. In reply Mr Nino noted that a maintenance shed could be provided within the rear open space to accommodate the necessary maintenance equipment.
5. The experts then offered their general agreement that a series of minor design changes evident in the final amended proposal serve to largely resolve remaining particulars in Contention 7 related to waste management, the adequacy of the primary building lobby and address, and the integration of the lift overrun within the proposed roof form.
6. In their joint expert report, at pars 10-15, Mr Nino and Mr Terry set out the extent of their disagreement on the central planning questions: 1. The status of SEPP ARH cl 30AA as either a development standard (the view preferred by the Applicant) or a prohibition (the view preferred by the Respondent). 2. In the event cl 30AA is held to be a development standard, the adequacy or otherwise of the cl 4.6 written request to vary a development standard and its justification of the proposed variation.
7. Mr Nino, now addressing these substantive planning questions of Contention 1, supported the Applicant's view that cl 30AA of SEPP ARH is a development standard "as it prescribes a numeric standard".
8. He then set out the key environmental planning grounds relied upon to justify the proposed cl 4.6 variation to the 12 room limit set out in cl 30AA: 1. The final amended proposal is situated on two traditional low density residential lots. 2. Hypothetically, if each of these two lots were independently developed to the 12 room limit established by cl 30AA, it would represent a total of 24 rooms. 3. The implied objective of cl 30AA is to limit total room capacity and thereby establish compatibility with the R2 Low Density Residential zone objectives. 4. The final amended proposal represents 21 rooms over the two consolidated lots and is therefore within the total room capacity anticipated by cl 30AA, and is therefore compatible with the R2 zone. 5. The final amended proposal is consistent with other relevant development standards for floor space ratio, height of building and wall height as set out within the BLEP, thereby further demonstrating the site has capacity for more than 12 rooms. 6. The final amended proposal does not create adverse environmental impacts upon neighbouring properties.
9. In response, at par 12 of the joint expert report, Mr Terry sets out the Respondent's view that cl 30AA is a matter of "yes or no" satisfaction and for this reason is not a development standard as defined by the EPA Act.
10. In his oral evidence, Mr Terry acknowledged that although the final amended proposal achieves compliance with all other development standards, and also now with the relevant provisions of the BDCP - the SEPP ARH cannot be set aside. And to the extent of its inconsistency with the BLEP, cl 30AA of the SEPP prevails.
11. Returning to the joint expert report at pars 13-15, Mr Terry sets out his view that should cl 30AA be held to be a development standard, then the Applicant's cl 4.6 written request seeking to vary this development standard is in adequate for a number of reasons: 1. The cl 4.6 written request seeks to rely on demonstrating that compliance with the development standard is unreasonable or unnecessary due to the final amended proposal meeting the objectives of the cl 30AA (Wehbe way 1). 2. In this instance cl 30AA is not accompanied by an express objective. 3. Rather, the Applicant's implied objective derived from cl 30AA - to constrain the maximum resident population - is not met by the final amended proposal. 4. The written request is predicated on a notion of two typical allotments when no allotment criterion is specified within the SEPP ARH, instead referring to "land". 5. The Applicant's notion - that each of the two lots could be independently developed to accommodate 12 rooms - is undermined by cl 4.1B of BLEP, which establishes development standards for minimum lot width (20m) and minimum lot size (1,200sqm). Neither of the two lots meet these development standards. 6. The written request mentions the possibility of further cl 4.6 written requests to vary development standards for lot width and lot size, but these have not been provided to the Court, and in any case would represent a significant exceedance of both standards unable to be justified.
12. The planning experts then turned to the question of the compatibility of the final amended proposal with the local character with reference to cl 30A of SEPP ARH.
13. Mr Nino stated that the final amended proposal presents as two storeys to the street frontage and as a single storey to the rear, and adopts all relevant built form controls set out in the BDCP, particularly those dealing with front and side setbacks.
14. For these reasons, Mr Nino considers the final amended proposal to be compatible with both the existing character of the area and the desired future character as contemplated by the planning controls.
15. In response, Mr Terry accepted that a proposal of two storeys is capable of satisfying the test of compatibility with the local character, and that the final amended proposal did not resemble a more dense multi-dwelling development or residential apartment development, but stated it is "bigger" than its immediate neighbours, and would present more habitable rooms, with more windows towards adjacent neighbouring properties.
16. To close their evidence, the planning experts observed a range of similarities and differences that exist between development standards for other non-residential uses permissible within the R2 Low Density Residential zone as set out in cl 4.1B and 4.4(2A) of the BLEP.

Findings

1. I am satisfied an amended Development Application may be granted consent, subject to conditions.
2. The amended application is to be based on the Revision E plans tendered as Exhibit K in these proceedings, but further amended to reflect the reasons for my decision as set out in the following paragraphs.
3. As noted earlier in this judgment, it has been helpful to group the remaining contentions evident in the final amended proposal into several planning and merit issues: 1. Whether or not cl 30AA of SEPP ARH is a development standard or a prohibition to development. 2. If regarded as a development standard, whether the Applicant's written request pursuant to cl 4.6 of the BLEP adequately justifies the proposed variation to this development standard. 3. Issues of neighbourhood character, the proposed building form and scale, and the site's suitability for a boarding house in excess of 12 rooms. 4. Matters of design and merit, including the adequacy of the proposed communal room, the utility and provision of maintenance access to proposed communal open space, confirmation the lift overrun can be accommodated within the proposed roof form, confirmation of the proposed waste management configuration and procedures, the detailed configuration of the lobby entry, and the proper depiction of the proposal in elevations.
4. Firstly, on the question of whether SEPP ARH cl 30AA represents a development standard or a prohibition to development - the clause states: A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
5. I note that at first blush, the language used here is cast in the negative and may outwardly strike the reader as a prohibition due to the following phrase in particular: A consent authority must not grant development consent…
6. The definition of development standards in s 1.4 of the EPA Act states: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of - (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed.
7. It is critical to acknowledge the effect cl 30AA has in "fixing" an "aspect" of development - being the maximum number of rooms within a boarding house.
8. Referring then to the sub-clauses set out with the definition of development standards, I note that in fixing the maximum number of rooms within a boarding house, cl 30AA accords with sub-clauses (c) and (e) of the definition: (c) the character, location, siting, bulk, scale, shape, size, height, density, … (e) the intensity or density of the use of any land, building or work,
9. In closing submissions, I was directed by the parties to a number of relevant decisions of the Court. Foremost amongst these is Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 (Poynting).
10. In Poynting, Giles JA, at [96]-[98], established a two step test to determine whether any particular provision of a planning instrument is a development standard.
11. The first step in the test requires consideration of whether the proposed development is prohibited under any circumstances by the relevant provision, when that provision is read in the context of the instrument as a whole.
12. The second step - if reached - is to determine whether the relevant provision specifies a requirement, or fixes a standard, in relation to an aspect of the proposed development.
13. The two step test in Poynting has formed an established path at the Court, and in Laurence Browning Pty Limited v Blue Mountains City Council [2006] NSWLEC 74, at [26] Jagot J summarised the core principles from various cases: "The principles that I derive from the authorities may be summarised as follows: (1) The provision in question must be "seen as part of the environmental planning instrument as a whole" (Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others [2002] NSWCA 353; (2002) 123 LGERA 179 at 182 - 183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development (Poynting at 333 -334 [58]). (3) Although we must distinguish between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" (Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. (Poynting at 343 [98]). (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" (Carr at 269 -270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" (Poynting at 343 [99])."
14. I accept that in the context of SEPP ARH when read as a whole, cl 30AA does not serve to prohibit the development of boarding houses within the R2 Low Density Residential zone in all cases. Rather, the SEPP makes clear that a boarding house development may be permissible with consent in the R2 zone. This is the first step in Poynting.
15. Although cl 30AA is expressed in the negative, the outward form of the clause is not material to whether the provision is a development standard or prohibition. As Giles JA states in Poynting at [93]: "Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same."
16. Having determined that cl 30AA passes the first step of Poynting, I am satisfied it also passes the second step - that is, by specifying a requirement or fixing a standard, the provision will be a development standard by which permissible development may be carried out.
17. In this particular case a boarding house is permissible development able to be carried out within the R2 zone when an aspect of that development - being the number of boarding rooms - is fixed at 12.
18. Since I have determined that cl 30AA is a development standard, I am then satisfied it is amenable to cl 4.6 of the BLEP.
19. I then turn to the cl 4.6 written request prepared by the Applicant, which seeks to justify the departure from the standard of 12 rooms. The final amended proposalseeks consent for 21 rooms, representing an exceedance of approximately 75%.
20. Consistent with cl 4.6(3) of the BLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this particular case, and that there are sufficient environmental planning grounds to justify the contravention.
21. Further, and following the principles established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the written request adopts Webhe way 1, seeking to establish that the objectives of the development standard are achieved notwithstanding the non-compliance.
22. The objective of cl 30AA is not explicitly specified by SEPP ARH and must be implied. The Applicant's written request states at pp 4-5: "The implied objective of Clause 30AA is directed towards built form of a boarding house and the number of people within a boarding house. The implied objective [of] Clause 30AA also acts to limit the environmental planning impact of a boarding house within a low density area."
23. I accept the implied objective of cl 30AA is to achieve compatibility with the R2 Low Density Residential zone objectives by limiting total room numbers.
24. A further consideration here is cl 4.1B of the BLEP, which sets out its objectives as follows: (a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to ensure that boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development, (c) to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas, (d) to minimise any likely adverse impact of the development on the amenity of the area, (e) where an existing lot is inadequate in terms of its area or width - to require the consolidation of 2 or more lots.
25. The relevant development standards are then set out in cl 4.1B(2), and for boarding houses within the R2 Low Density Residential zone, they are a minimum lot size of 1,200sqm and a minimum site frontage of 20m.
26. I note the final amended proposal is situated on land comprising two adjacent lots, which by consolidation meet these development standards for site area and site frontage, and by doing so must satisfy the objectives of cl 4.1B.
27. This is relevant since the implied objectives of cl 30AA of SEPP ARH and the express objectives of cl 4.1B are largely in accord.
28. Clause 4.6(4) of the BLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
29. I accept the final amended proposal has demonstrated the implied objectives of cl 30AA have been achieved notwithstanding non-compliance with the 12 room development standard.
30. I also accept the final amended proposal is consistent with the objectives of the R2 Low Density Residential zone, which include providing for the housing needs of the community within a low density residential environment, to allow for the development of low density housing that has regard to local amenity, and to require landscape as a key characteristic of development in the zone.
31. The final amended proposal is compatible with the built form of the immediate vicinity. It presents as a united pair of two-storey dwellings to Lancaster Avenue, with a single-storey wing to the rear.
32. As two consolidated lots, the site has capacity beyond that able to be accommodated on a traditional single lot.
33. The final amended proposal is otherwise compliant with the suite of development controls established by the SEPP ARH, the BLEP and the BDCP, particularly those which determine built form and landscape character.
34. I accept a number of the environmental planning grounds relied upon within the Applicant's cl 4.6 written request to justify the proposed variation to the 12 room limit.
35. Although "environmental planning grounds" is not a defined term, sufficient grounds are needed to justify the contravention of the development standard, and these include: 1. The final amended proposal is situated on two traditional lots providing additional capacity for boarding house development and for the mitigation of associated impacts. 2. Hypothetically (and notwithstanding limitations created by cl 4.1B of the BLEP), if each of these two lots were independently developed to the 12 room limit established by cl 30AA, it would create a development with impacts equivalent to a combined total of 24 rooms. 3. The final amended proposal represents 21 rooms over two adjacent lots and therefore is within the total impacts anticipated by cl 30AA, and hence is compatible with the R2 zone. 4. The final amended proposal - at 21 rooms - is consistent with all other relevant development standards for floor space ratio, height of building and wall height set out within the BLEP, thereby further demonstrating the site has capacity for greater than 12 rooms. 5. The final amended proposal does not create adverse environmental impacts upon neighbouring properties in terms of privacy, overshadowing and building separation.
36. I note that the immediate neighbour to the south west at 86 Lancaster Avenue will be presented with windows serving 8 boarding rooms along the common boundary and each of these rooms are set back from the side boundary by 3m.
37. To the north east, the final amended proposal will present windows serving 7 boarding rooms to the common boundary with 4 of the 6 immediate neighbours on James Street - being numbers 38, 40, 42 and 44. In this instance the windows are set back from the side boundary by approximately 3.4m.
38. Additionally, cl 4.6(4)(b) of the BLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.
39. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I propose to uphold the written request to vary the cl 30AA development standard.
40. Next, Contention 8 remains pressed. It sets out that the application should be refused as the proposal is not suitable for the site as a consequence of cl 30AA of SEPP ARH. Further, the application should be refused as the proposal is similarly incompatible with the character of the local area as required by cl 30A of SEPP ARH.
41. This judgment has already dealt with much of this contention, but I specifically address cl 30A, and for the reasons already set out in this judgment, I accept the final amended proposal is compatible with the character of the local area.
42. I am satisfied that State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the proposal and has been properly considered. The parties agree that given the site's previous residential use, the land is unlikely to be contaminated nor to require remediation. I am satisfied the proposal does not require further consideration under cl 7(1)(b) and (c) of SEPP 55.
43. Finally, I am satisfied that the remaining matters of merit can be addressed in a further amended Development Application or are capable of resolution by way of conditions of consent.
44. Therefore, I now propose to grant consent to an amended Development Application that reflects the form and scale of the proposed boarding house currently described within the Revision E plans forming Exhibit K in these proceedings.
45. Prior to this, further amendments are to be made that result in the consolidation of boarding room 07 with the proposed communal living room in order to create a more generously sized communal living space. This expanded communal room is to include an accessible toilet and appropriate kitchen facilities.
46. Similarly, the outdoor space immediately adjacent to the communal room is to be provided with weather protection in the form of a posted awning or similar roof structure (rather than an open pergola) in order to extend its utility and amenity, and improve the range of communal spaces available to residents.
47. A single-level maintenance shed is to be provided towards the rear of the property, sited no closer than 5m from any neighbouring boundary in order to accommodate all necessary landscape maintenance equipment.
48. The nominated lift is to be concealed entirely within the proposed roof form and drawings prepared to demonstrate this is achieved.
49. An accessible platform stair lift is to be specified within the plans in order to facilitate universal access across the ground level of the final amended proposal.
50. The internal access point to the bin storage room is to be amended in order to provide the suitable corridor width necessary to permit an accessible path of travel for residents and to allow for the necessary maneuvering room required in all travel directions.

Directions

1. Accordingly, the Court directs that: 1. The Applicant is to prepare and file with the Court final architectural drawings, based on the Revision E plans tendered as Exhibit K, but further amended to reflect the reasons and required amendments set out in this judgment, within 7 days. 2. The Respondent is then to prepare a corresponding set of conditions of consent reflecting the reasons set out in this judgment and consistent with the Applicant's filed final drawings, and file these conditions with the Court within a further 7 days. 3. Upon receipt of the final architectural drawings (from the Applicant) and final conditions of consent (from the Respondent), the Court will give consideration to the making of appropriate further orders.

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: 22 September 2021