Ekos (Kingsford) Pty v Randwick City Council

The site and its context

1. The subject site has an area of 708.2m² and is legally described as Lot 1 DP 312120 and Lot 1 in DP 129522. The site currently contains two single storey dwellings each with a detached garage. Along the Willis Street frontage of the site a row of existing street trees are present within the road reserve.
2. The locality is characterised by a mixture of single storey and two storey dwellings and town houses, as well as residential flat buildings ranging in height from two to four storeys.
3. The site is located approximately 400m from Kingsford, a retail and commercial centre, and is also in proximity to the University of New South Wales, Kensington Campus.

Planning Controls:

1. Section 79C(1)(a) of the Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The application is lodged utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). This policy commenced in July 2009 with the "local character test" included at cl 30A via amendments on the 20 May 2011. This clause states: 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. The objectors raise strongly in their submissions that the development is not compliant with cl 30A (the character test). However, the planning experts in their evidence written and oral evidence to the Court are agreed that the development as proposed is compatible with the character of the local area.
3. Relevantly under Part 1 clause (4)(1) of SEPPARH the following definitions are provided: habitable room has the same meaning as in the Building Code of Australia. Note. The term is defined as a room used for normal domestic activities, other than a bathroom, laundry, toilet, pantry, walk in wardrobe, hallway, lobby, clothes drying room or other space of a specialised nature that is not occupied frequently or for extended periods. (2) A word or expression used in this Policy (other than Schedule 1 or 2) has the same meaning as it has in the standard instrument (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011) unless it is otherwise defined in this Policy. gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
4. The relevant controls for this development are found in Part 3 Boarding Houses of SEPPARH: 29 Standards that cannot be used to refuse consent … (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (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). 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.
5. The experts agree the proposal complies with the mandatory standards is set out in clause 30 (1) of the SEPP, which are a precondition to consent. It is agreed between the parties and the experts that the proposal meets the remaining provisions of SEPPARH, where relevant to the proposal.
6. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. A BASIX certificate has been provided to the court for the amended plans and, subject to appropriate conditions, the proposal is considered to satisfy the requirements of this policy.
7. Randwick Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)): … (a) to foster a liveable city that is accessible, safe and healthy with quality public spaces and attractive neighbourhoods and centres, … (c) to support efficient use of land, vibrant centres, integration of land use and transport, and an appropriate mix of uses, (d) to achieve a high standard of design in the private and public domain that enhances the quality of life of the community, (e) to promote sustainable transport, public transport use, walking and cycling, (f) to facilitate sustainable population and housing growth, (g) to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick, (h) to promote the importance of ecological sustainability in the planning and development process, (i) to protect, enhance and promote the environmental qualities of Randwick, (j) to ensure the conservation of the environmental heritage, aesthetic and coastal character of Randwick, .. (l) to promote an equitable and inclusive social environment, …
8. Pursuant to LEP 2012 the site is zoned R3 - Medium Density Residential. The objectives of the R3 zone are as follows: To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. … To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. To protect the amenity of residents. To encourage housing affordability. …
9. The proposal is defined as a boarding house and is permissible, with consent, in the zone.
10. Part 4 of LEP 2012 contains principal development standards with clause 4.4 Floor Space Ratio (FSR) prescribing a maximum FSR of 0.9:1 for the site, and at clause 4.5 a maximum building height of 12 m. SEPPARH provides an additional floor space bonus of 0.5:1 which has the effect of increasing the FSR control, applicable for a boarding house use, to 1.4:1. The development complies with these increased development standards.
11. The Randwick Development Control Plan 2013, (DCP 2013) applies to the proposal. The clauses of DCP 2013 relevant to the appeal are: C2.1 Site Planning Objectives: To ensure the site layout and building location respond to the unique characteristics of the site and the surrounding context; To ensure development achieves adequate levels of natural lighting and ventilation, privacy, visual amenity and spatial separation from neighbouring properties C2.2.1 Landscaped open space Controls (i) a minimum of 50% of the site is to be landscaped open space … C3.4 Setbacks Objectives To define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that establish local character To ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views; … C3.4.2 Side Setback Controls (i) comply with the minimum side setback requirements stated below for residential flat buildings and multi dwelling housing: (ii) incorporate additional side setbacks to the building over and above the minimum standards in order to: Create articulations in the building facades Reserve open space areas and provide opportunities for landscaping Provide building separation Improve visual amenity and outlook from the development and adjoining residences Provide visual and acoustic privacy for the development and adjoining residences Ensure solar access and natural ventilation for the development and adjoining residences. C3.4.3 Rear Setback Controls (i) for residential flat buildings and multi dwelling housing, provide a minimum rear setback of 15% of allotment depth or 5m whichever is greater; … (iii) the rear boundary setback may be varied in the following scenarios: Allotments with an irregular shape; Allotments with the longest boundary abutting the street or the rear adjoining neighbour (that is the frontage width being longer that the site depth) Allotments with the rear boundary abutting a laneway A central courtyard is provided in the development. C5.1 Solar access and overshadowing Objectives: To ensure the design, orientation and siting of development maximises solar access to the living areas of dwellings and open spaces, and is encouraged to all other areas of the development; To ensure development retains reasonable levels of solar access to the neighbouring properties and the public domain To provide adequate ambient lighting and minimise the need for artificial lighting during daylight hours. Controls: (i) Dwellings within the development site must receive a minimum of 3hrs sunlight in living areas and to at least 50% of the private open space between 8am and 4pm on 21 June (mid-winter) … (iii) where an existing development currently receives less sunlight that this requirement the new development is not to reduce this further. C5.3 Visual Privacy Objectives To ensure a high level of amenity by providing for reasonable level of visual privacy for dwellings and neighbouring properties. To ensure new development is designed so that its occupants enjoy visual and acoustic privacy, whilst maintaining the existing level of privacy of adjoining and nearby properties. C5.4 Acoustic Privacy Objectives To ensure a high level of amenity by providing for reasonable level of acoustic privacy for dwellings and neighbouring properties. … To design buildings with adequate separation with the development and from neighbouring properties Controls (i) design the building and layout to minimise transmission of noise between buildings and dwellings by: Locating busy, noisy areas near each other and quiet areas such as bedrooms near each other Use storage and circulation areas to buffer noise where possible Minimise the extent of part walls … (iii) Use appropriate measures to maximise acoustic privacy such as: Double glazing Operable screened balconies Walls to courtyards Sealing of entry doors. C4 Boarding Houses Objectives: To encourage housing choice and affordability through the provision of high quality boarding houses in Randwick City; To achieve high standards of amenity for boarding house residents and surrounding neighbours through effective design and management controls. Building design Objectives: … Protect the acoustic and visual privacy and living amenity for both boarding house residents and neighbours.
12. The relevant provisions of DCP 2013 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

Public submissions

1. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the DCP 2013. A total of 40 submissions were received by Council, as well as a petition signed by 43 residents. In subsequent notification of amended applications, significant numbers of objections were lodged with the Council. At the commencement of the hearing, six residents provided evidence to the Court. The issues raised in these submissions can be summarised as follows: 1. Concern that the provision of landscaping and deep soil within the development is inadequate; 2. Concern that the development contains a lack of onsite parking and that parking availability in the area is limited; 3. The lack of garbage facilities on site and the extent of waste generated; 4. The effect of overshadowing from the proposed development on adjoining properties; 5. Potential for the development to impact property values in proximity of the site; 6. That the development is out of character with area and inconsistent with the streetscape; 7. That a boarding house use is inappropriate in a residential area and the development is inconsistent with the zone; 8. Concerns in regards to the acoustic impacts of the development; 9. Appropriateness of the garbage room location given its proximity to adjoining residential properties; 10. The potential for contamination, and in particular asbestos on the site; 11. Objection to the non-complaint setbacks, in particular to Willis Street; 12. The potential for crime resulting from the boarding house use; 13. The private open space and communal open space areas proposed do not meet the minimum size required by SEPPARH. 14. The front setback to Meeks Street has not been provided with a landscaped setback as required by SEPPARH. 15. Concern that the boarding house will not be used for affordable housing; 16. That the shadow diagrams provided are inaccurate; 17. The development does not comply with Councils controls (LEP 2012); 18. That the notification process was inadequate; 19. The site is not accessible to public transport; 20. No laundry facilities are provided; 21. Concern whether the development adequately addresses fire safety; 22. Objection to trees being removed along Willis Street; 23. Whether the drainage of the site has been adequately considered; 24. Concern that the number of boarders will not be able to be adequately controlled; 25. The adequacy of disabled access to the site; 26. Noise during construction; 27. Objection to the removal of heritage listing of 65 Willis Street; 28. Objection to the adverse visual impact of the development on the adjoining property at 29 Meeks Street. These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

1. The Court heard expert planning evidence from Mr Jeff Mead, for the applicant, and Mr Stuart Harding for the Council. The experts participated in a joint conferencing process prior to the hearing. The conference sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit B. Their report concludes that the issues in contention between the parties are resolved by the amended plans. Their agreement in relation to the key issues in dispute is detailed below. Following the hearing a supplementary report was prepared in relation to the overshadowing impacts of the proposed development. The conclusion of this report is that the impact is reasonable. This is discussed under the relevant section in the following.

Boarding House: Character

1. As noted at [12] SEPPARH at 30 A requires the consent authority to consider, prior to determination, the compatibility of the development with the character of the local area. Moore, SC in considering the question of compatibility in Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019 at [22] concludes that: the test of "compatibility" is distinctly different from the concept of "consistency" with the character of the local area. Compatibility is a less rigid and less demanding standard of assessment than that which is engaged by a test of consistency.
2. In relation to character the residents in their objections argue that: 1. the development proposed is of commercial proportions; 2. has a front setback to Meeks Street that is out of character with the streetscape; 3. relies on the screening of the existing street trees in Willis Street to achieve contextual fit; 4. is too large for the small blocks on which it is proposed; and 5. relies on a nil setback to Willis Street to accommodate the proposed development and that a nil setback is in contrast to the existing building form of the street.
3. The residents also raise the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 and its guidance in the assessment of compatibility. It is their view that the development is in their view not consistent with the two relevant tests in this planning principle, namely the impacts of the development are unacceptable and the development is not in harmony with the character of the local area.
4. The issue of compatibility of a proposal within an existing context has been considered by the Court on many occasions. Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provided guidance in the assessment of whether a development would be compatible and considered that for a development to be compatible it is to be capable of existing together in harmony and is different to sameness. He stated at [22] it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, the harmony is harder to achieve. He suggests there are two tests, one is whether a proposal's physical impacts on the surrounding area are acceptable and the second is if it is in harmony with the buildings around it and the character of the street. He states: 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials
5. In contrast to the lay evidence, the agreed evidence of the experts is that the amended plans before the court are acceptable and the development meets the planning principal and responds to the areas character.
6. In forming this view Mr Harding describes the relevant character as a mix of residential building forms ranging from two storey residential flat buildings with under croft parking through to four storey older style flat developments. The local area also comprises a small number of single storey dwellings and whilst brick is a unifying material overall there is a broad range of building heights and setbacks. Mr Harding's evidence is that the effect of Council's DCP, which allows merit assessment for setbacks where the site is narrower than 12m in frontage, is evident in the variety of built forms in the local area. In relation to the site, it is his view that the predominance of four storey buildings in proximity to the southern boundary supports the development presenting as four storeys at this elevation, whilst a three-storey presentation at Meeks Street is consistent with the existing streetscape of this elevation. In contrast with the views of the residents, it is his evidence that the setback to Meeks Street and Willis Street is compatible with the character of the local area and that cl30A of SEPPARH is satisfied.
7. The evidence of the planning concurs with the description of character provided by the Council planner in the assessment report for the application (Exhibit 1) which details the existing character as follows: When viewed from the corner of Meeks Street and Willis Street, development within the immediate visual catchment of the subject site is characterised by a mixture of 2, 3 and 4 storey residential flat buildings. … The scale of the surrounding areas is as follows: To the north there is a 3 and 4 storey scale fronting Willis Street; to the west there is a 3 and 4 storey scale which transitions down to 2 storey developments fronting Meeks Street; to the south there are 2 and 3 storey developments along Willis Street, this transitions to a few 4 storey developments towards Rainbow Street intersection; and to the east the scale is predominately 2 to 4 storeys.
8. In relation to the bulk and scale of the development, the agreed evidence of the planners is that the revision C.1 plans (the plans before the Court) are acceptable in terms of bulk and scale. This agreement is detailed in the following extract of the joint report: the proposal provides for an FSR of 0.89:1, where as the maximum FSR control for the site is1.4:1 (based on0.9:1 base FSR, with 0.5:1 bonus under ARH SEPP). That is, the proposal provides 63% of the allowable FSR. Even if corridor/horizontal circulation spaces are to be included (enabling further enclosure of them), the FSR would be 0.98:1; the revision C.1 plans provide for a 1.5 M setback to the Willis Street frontage which, in combination with the wide nature strip, assist in mediating bulk at the Street frontage; the northern building has been reduced to 3 stories in height which in relative terms has a maximum height lower than the Ridge of the adjoining building to the East at number 29 Meeks Street. The experts agree that this assist with moderating the verticality of the building form on what is a relatively narrow site; the experts agree that the four-storey building form to the southern building is acceptable due to the fact that it complies with the maximum height limit under the LEP, is set back from the lane frontage by 6935mm, sits opposite a 3 storey building meaning there is no abrupt change in scale (noting that four-storey buildings exist further south on the eastern side of Willis Street), and that the southern elevation has a narrow face of only 5m, excluding the south western balcony which also articulates the facade. The experts agree that the variation to the wall height control of 10.5m to the southern building is minor, a maximum of approximately 600 mm. This non-compliance is offset against large parts of the building that are well below the wall height control as well as the 10m separation between the north and south buildings. As viewed as an overall development, the scale is well within what could be expected by the planning controls. The experts agree that the shadow impact cast by the proposal is acceptable and therefore the wall height variation is satisfactory in this regard.
9. Ms McGrath submits, in seeking the Courts refusal of the application, that the Council relies on the residents submissions that the development does not meet the test in cl30A of SEPPARH and that applying the principles in Project Venture v Pittwater Council the development is not compatible with the context.
10. During the onsite view it was confirmed by the experts that the principal street trees in Willis Street are to be retained and will be unaffected by the proposal.

Findings

1. During the site view, I was taken along Meeks Street, Willis Street and Bow Lane. This allowed an appreciation of the character of the local area as relevant to this application. I agree with the experts that the dominant built form comprises three storey walk-up residential flat buildings and four storey developments, with a few remnant detached dwelling houses. I accept the description of the character provided by council's planner and Mr Harding at [30] and [31] respectively.
2. In weighing up the merits of the proposal under section 79C of the Act, the Court must consider the expert and lay evidence and give appropriate weight to the permissibility to carry out the use on the land: BGP Properties Pty Ltd v Macquarie City Council. 138 LGERA 237, [2004] NSWLEC 399 per McClellan CJ at [117]. In this case and the expert evidence supports a conclusion that the proposed boarding house development is compatible with the character of the local area. As the test is compatibility, not consistency, I am satisfied that the design of the building is in harmony with the buildings around it and the character of the local area. I find that the development is compatible with its context, thus meeting the requirements of cl 30A SEPPAH and the precondition to consent.
3. Whilst I appreciate that the resident objectors argue that the development is not compatible with the character of the local area, after appropriate assessment it is my considered opinion that their concerns should not be given determinative weight and that the conclusion of the joint expert report is sustained.

Maintenance of solar access to adjoining property at 29 Meeks Street

1. The apartments at 29 Meeks Street lie to the east of the subject property. In addressing the Court the residents' evidence centred on the impact of the development on their solar access, and the potential for solar access to their apartments to be reduced to one hour in mid-winter.
2. In evidence before the Court it is agreed between the parties that the apartments at 29 Meeks Street, which adjoin the development site, currently experience less than three hours sunlight in mid-winter.
3. Relevantly in the joint planning report the experts provide the following points of agreement:
4. In oral evidence, Mr Mead argued that in considering the impact on 29 Meeks Street it is important to consider the zoning of the site and the principal development controls. It is his view that the impact is reasonable, is reflective of the density of the zone, and the anticipated change in development form from single storey to the denser form of development foreshadowed in Councils controls and specifically in the R3 High Density Residential zone.
5. Following the evidence of the residents the experts were requested to provide additional evidence to the court in relation to: 1. The quantitative change in solar access that would be experienced by the apartments in 29 Meeks Street as a result of the development; and 2. The compliance of the development with Section 5.1 of the DCP which states where an existing development currently receives less sunlight that this requirement the new development is not to reduce this further.
6. The evidence of the planners in the supplementary report can be summarised as follows:
7. In contrast to the above agreed evidence Ms McGrath argued in submissions that the solar impact of the development is unacceptable on the basis that the units in 29 Meeks Street currently have uninhibited solar access between noon and 4pm and as a result of the development two of the six units will maintain less than two hours in mid-winter.

Findings

1. On the basis of the agreed evidence of the planners I find that the contention that the development will have an unacceptable impact on the solar access of the adjoining property at 29 Meeks Street is not sustained, and that the solar access cannot be held to be so inadequate as to warrant refusal of the application. I have reached this conclusion for the following reasons: 1. the subject apartments at 29 Meeks Street have a dual orientation which I am satisfied, on the basis of the expert evidence, will allow them to maintain appropriate solar access especially when the whole of the day is considered. 2. In determining the appropriateness of the impact of the development weight should be given to the zone of the land and the compliance of the development with the relevant planning controls [BGP Properties Pty Ltd v Macquarie City Council]. Relevantly in this case the development is compliant with FSR and height. I am satisfied that in the site design, and the creation of the central courtyard, the applicant has decreased solar impact to the adjoining site.

Compliance with minimum room sizes

1. In oral submissions to the Court the residents raised concerns that the proposed room sizes did not meet the minimum requirements of 29(2)(f) of SEPPARH. The proposal incorporates laundry facilities within the boarding rooms, in addition to the kitchen and bathroom service areas. The submissions of the residents is that this additional laundry area, which adjoins the kitchen, should be excluded from the minimum rooms size as it does not form part of the "liveable area". Further concern was raised in regard to the design of some of the boarding rooms which have extended corridors. In the objector's opinion, these corridors reduce the functionality of the boarding rooms.
2. In the planning joint expert report Mr Harding states that: Room 107 and Room 207 do not appear to meet the minimum room size requirement and include a large corridor area that erodes the ability to provide appropriate amenity into those rooms.
3. In contrast, it is Mr Mead's evidence that the dimensions provided on the architectural plans confirm rooms 107 and 207 meet the minimum size of 12sqm and it is his opinion that the room layout is relatively efficient.
4. Mr Eastman's submission is that the architectural plans demonstrate that the room size requirements of cl.29 (1) of SEPP ARH are met by the proposal.

Findings

1. In reference to the architectural plans before the Court (Exhibit A) the relevant units are nominated as having a floor area of 12.13m².
2. I note that the accommodation size requirement of SEPP ARH, being the 12 square metres for a single lodger's room, is a standard that cannot be used to refuse consent. In other words, if the rooms are 12 square metres or greater, the size of the room cannot be held to be inadequate and used as a reason to dismiss the appeal.
3. As noted in [14] the wording of Cl 29 (2)(f) of SEPPARH, as it relates to the determination of the minimum boarding room sizes, plainly only excludes kitchen and bathroom facilities. I accept that based on the evidence before the court the minimum size for the rooms is met. There is no ability, under this clause, for the area occupied by the laundry space to be excluded from the calculation of room area.
4. I note the concerns of Mr Harding in relation to the practicality of the layouts of Room 107 and Room 207, and the residents concern in relation to the prominence of the corridors as a component of the internal floor area.
5. The Court has an obligation to direct its consideration to the issue is primarily in contention between the parties, as set out in the statement of facts and contentions. In this case those matters were considered and agreed as part of a joint conferencing of experts, and the preparation of the joint report. The Council did not identify as an issue in the proceedings the functionality of the rooms, and this was not the subject of detailed expert evidence except in the brief references as detailed at [47-48]. As a result, I find that there is insufficient evidence before the Court to conclude that the layouts of the boarding rooms are not functional for a single lodger. In my view this matter of itself, would not be sufficient reason to refuse the application.

Appropriate conditions of Consent

1. In accordance with s80 of the Act in determining an application, a consent authority can either: (a) grant consent to the application, either unconditionally or subject to conditions; or (b) refuse consent to the application.
2. Relevantly pursuant to s80A(1) of the Act the consent authority may impose a condition of development consent if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or … (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1), or (g) it modifies details of the development the subject of the development application, or …
3. Relevantly s80(4) requires that conditions are expressed in terms of outcomes or objectives and requires conditions to expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.
4. In order for conditions to be successful they need to clear and certain, as outlined in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 which states at 24: (that there is no lawful development consent where the consent falls into one of two categories) 'the first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Preistly J A). The second category is where Council has purportedly granted consent, but in terms which lack finality or certainty, so that there is, in substance, no effective consent to the application.
5. As part of the proceedings adjoining residents raised a number of concerns with the Court in relation to the impact of the operation of the boarding house on their amenity. These issues are considered in the following sections, with reference to the draft conditions of consent prepared by the Council.

Acoustic impact on adjoining residences

1. As part of the development application the applicant provided an Acoustic Assessment prepared by Acoustic Logic Pty Ltd [Exhibit C]. This report provides the following recommendations:
2. In their submissions to the Court the adjoining residents raised concerns that the noise from the proposed use of the site will intrude on their amenity. They also raised concern about the practicality of ensuring compliance with the recommendations of the acoustic report.
3. In the joint expert report the planners discussed the treatment of the eastern elevation and whether it provided satisfactory oral privacy to 29 Meek Street. Mr Meads evidence in relation to this issue is as follows: in relation to the upper level circulation areas, and the potential impact on the adjoining property to the East at number 29 Meeks Street, it is my opinion that the infrequent use of these areas for circulation will cause insignificant impacts in terms of aural and visual privacy. Were this of concern, the matter could be dealt with by providing a great degree of enclosure to the circulation areas (by the way of condition). Mr Harding's evidence is that the proposed perforated screen treatment to the eastern facade of the building adjacent number 29 Meeks Street remained a concern. It is his evidence that this should be acoustically treated to reduce the potential for adverse noise impacts on adjoining residents.
4. In discussion of the draft plan of management, and the residents' concerns, the experts agreed it is appropriate that the plan be amended to include the requirement for a timer are to be incorporated in lighting of the common area so that it automatically switched off after 9pm.

Findings

1. I accept the evidence of Mr Mead that the corridor areas with in the development are likely to have infrequent use. However, I concur with the concerns of the residents that even with infrequent use, the noise generated could result in sleep disturbance. Therefore on the basis of the evidence of Mr Harding and the recommendations of the acoustic report I am satisfied it is appropriate to include conditions on the consent to ensure that development operates in a manner that minimises adverse acoustic impacts. These conditions are: Condition 2. The approved plans and documents must be amended in accordance with the following requirements: … b. Details of the proposed acoustic treatment to be applied to the Western facade of both buildings to limit the acoustic impacts to residents of the adjoining residential flat building … i. An amended plan of management, to reflect the conditions of this development consent is to be submitted to Council for the approval of Council's Manager of Development Assessment prior to the issuing of an Occupation Certificate. The updated plan of management is to incorporate the requirement for a timer are to be included in lighting of the common area to be automatically switched off after 9 PM.

Waste Management.

1. In their evidence, a number of objectors raised concerns with appropriate waste management. Their concerns are: appropriate operational waste management; bin storage; and the management of bulk waste at the changeover of tenants.
2. During the hearing, these concerns were put to the planning experts in concurrent evidence and it they concurred that it is appropriate for the consent to incorporate additional conditions requiring: 1. Waste collection to be managed by a commercial contractor 2. The bins servicing the development to be contained within the bin room, other than at the point of collection; and 3. An amendment to the Proposed Plan of Management requiring the manager to be responsible for the appropriate disposal of any bulk waste generated by the development or at the changeover of tenants.
3. It was the expert's view that these conditions, as well as the existing the proposal for the rooms to be leased of rooms as furnished, with furniture and whitegoods included in the lease arrangement, would satisfactorily address the concerns raised by residents.

Findings

1. Following a review of the concerns raised by residents, and consideration of the evidence of the experts, I find pursuant to s80A(1) of the Act that it is appropriate to include the following conditions on the application: Condition 29. the waste servicing of the proposed development is to be undertaken by a commercial contract at the frequency required to accommodate the waste generated by the development within bins wholly contained within the bin room. Bins are not to be located outside the bin room other than for the purposes of collection. Condition 29 (a) the number of bins provided for the development is that number that is able to be contained wholly within the bin room. Collection frequency is to be increased if demand exceeds the capacity of this number of bins. Condition 29 (b) the Proposed Plan of Management is to be amended to require the on-site manager to be responsible for the management of the appropriate disposal of any bulk waste generated by the development or the changeover of tenants. Condition 119: Boarding rooms are to be provided as furnished as outlined in the approved Plan of Management.

Plan of Management

1. A draft plan of management for the development was tendered as Exhibit D. In addition Councils proposed conditions of consent includes the following relevant conditions:

Operation of Premises All the items listed in the Plan of Management, titled "Annexure C Operational Plan of Management For Boarding House at 27 Meeks Street Kingsford" and dated April 2016 and any amendments to the Plan approved in writing by Council's Manager Development Assessment, shall be implemented at all times. The following occupancy rates shall apply to the ongoing use of the premises: Room Number Maximum occupancy G01 One (1) occupant G02 One (1) occupant G03 One(1) occupant 101 One (1) occupant 102 One (1) occupant 103 One (1) occupant 104 One (1) occupant 105 One (1) occupant 106 One (1) occupant 107 One (1) occupant 108 One (1) occupant 109 One (1) occupant 110 One (1) occupant 111 One (1) occupant 112 One (1) occupant 201 One (1) occupant 202 One (1) occupant 203 One (1) occupant 204 One (1) occupant 205 One (1) occupant 206 One (1) occupant 207 One (1) occupant 208 One (1) occupant 209 One (1) occupant 210 One (1) occupant 211 One (1) occupant 212 One (1) occupant 301 One (1) occupant 302 One (1) occupant 303 One (1) occupant 304 One (1) occupant 305 One (1) occupant Managers Room One (1) occupant Total 33 Occupants

The above occupancy rates and adopted Plan of Management shall be enforced by the appointed Manager at all times. Any variation of the above occupancy rates or provisions detailed within the adopted Plan of Management shall be subject to Council approval. The car spaces within the development are for the exclusive use of the occupants of the building. The car spaces must not be leased to any person/company that is not an occupant of the building.

1. In considering whether a plan of management is appropriate for a particular use or situation Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54] outlines a series of questions to be considered to ensure the effectiveness of the plan of management.
2. In the circumstances of this case the I find that the answers to these questions are as follows:
3. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? Yes. Subject to the changes identified in the preceding [63 - 67].
4. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? No.
5. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? Yes.
6. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? No.
7. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? Yes.
8. Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent? Yes. Subject to the changes identified in the preceding [63 - 67].
9. Does the Management Plan contain complaint management procedures? Yes.
10. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? No. Amendments required to be approved by Council [condition 86].
11. As such I find that the plan of management, in concert with the amended conditions, are an appropriate means of controlling the impacts of development on residential amenity.

Other issues

1. Resident objectors also raised concern in relation to the lack of clothes drying facilities provided in the development. I am satisfied that these concerns are addressed by the following conditions of consent proposed by the Council:
2. (d) A clothes drying area shall be provided on the eastern side of the common open space area
3. Two of the units within the development are nominated as Accessible Units in accordance with Australian Standards AS 1428.1 2009 Design for Access and Mobility. In evidence to the Court, the residents raised concerns that the addition of wall hung bike racks adjacent the accessible unit entries cratered and obstruction. Concern was also raised that the width of the corridors, internally to the units, may not comply with the standard. It was the agreed evidence of the planning experts that the bike racks are capable of being relocated if required. This is incorporated in the conditions as follows:
4. (g) the bicycle racks adjacent to rooms G01, G02 and G03 being located so as to not impede access to those rooms, particularly accessible rooms.
5. In relation to ensuring compliance of the remainder of the development with AS 1428.1 2000, currently the conditions of consent proposed by the Council include the requirement prior to Construction Certificate for certification to be provided that the development, when constructed, will comply with the requirements of the Building Code of Australia Disability (Access to Premises - Buildings) Standards 2010. [Condition 14].
6. I am satisfied that these conditions appropriately address the issues raised by the residents.

Costs

1. As identified at [3] the applicant made further changes to the proposal following the preparation of expert evidence. In seeking leave of the Court to rely on the amended plans it was agreed to by the applicant that the changes were not classed as minor, and that costs in accordance with s97B of the Act would apply. This would reflect those costs of the consent authority that are thrown away as a result of amending the development application.
2. Section 97B of the EPA Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
3. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'.
4. The step one of the above was met on the first day of the proceedings. In relation to step two, it was agreed between representatives of the parties that the amendment to the proposal, as detailed at [3], was not minor. Based on the changes to the proposal and the agreed submissions of the parties I am satisfied that the amendments made to the proposal are a not minor amendment for the purposes of s 97B of the Act and that an order for costs is appropriate.

Conclusion

1. I have reviewed the agreed evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that they appropriately consider the issues raised by the contentions, and the appropriate planning controls, and as noted in the proceeding I accept their conclusions.
2. In determining this matter, I have considered the evidence, resident objections, the submissions and undertaken a detailed view of the site. Having carefully considered the joint expert report and final submissions of the parties, I am satisfied in my s79C evaluation that no substantive issue warrants refusal of this amended proposal.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. The applicant is to pay the Respondents costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed; 3. The appeal is upheld; 4. Consent is granted to Development Application No. DA/795/2015 for the demolition and construction of a boarding house at 27 Meeks Street and 65 Wills Street (Lot 1 DP 312120 and Lot 1 in DP 129522) Kingsford subject to conditions in Annexure A and the following additional operational conditions: Condition 2. i. An amended plan of management, to reflect the conditions of this development consent is to be submitted to Council for the approval of Council's Manager of Development Assessment prior to the issuing of an Occupation Certificate. The updated plan of management is to be updated to incorporate the requirement for a timer are to be included in lighting of the common areas to allow them to be automatically switched off after 9 PM. Condition 29. the waste servicing of the proposed development is to be undertaken by a commercial contract at the frequency required to accommodate the waste generated by the development, and the number of bins able to be wholly contained within the bin room. Bins are not to be located outside the bin room other than for the purposes of collection. Condition 29 (a) the number of bins provided for the development is that number that is able to be contained wholly within the bin room. Collection frequency is to be increased if demand exceeds the capacity of this number of bins. Condition 29 (b) the Proposed Plan of Management is to be amended to require the on-site manager to be responsible for the appropriate disposal of any bulk waste generated by the development or at the changeover of tenants. Condition 119: Boarding rooms are to be provided with equipment and furnishings as outlined in the approved Plan of Management. 1. The exhibits are returned with the exception of Exhibit A, 2, 3 and the Class 1 Application lodged 25 July 2016 ……………. D M Dickson Commissioner of the Court Annexure A: Conditions Annexure B: Approved Plans 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: 28 March 2017