Fox Johnston Pty Ltd v Randwick City Council

Land and Environment Court (NSW)|2015-12-22|Before: Ms P

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 872/2014 for a boarding house of 22 occupants (the proposal) at 23 Courland Street, Randwick (the site) by Randwick City Council (the Council).
The appeal was subject to mandatory conciliation on 21 September 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 9 October 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 3 November 2015 for the applicant to rely on the amended proposal.
Following the amendments made to the proposal, the parties agreed to enter into consent orders.

Issues

The Council's contentions in the matter can be summarised as:

Consent orders

In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.

Public submissions

The Council submits that the resident objectors were notified by letter of the Council's decision to enter into consent orders in this matter on 9 December 2015 and were sent the proposed consent orders and conditions of consent on 16 December 2015. A number of objectors provided evidence at the commencement of the hearing on site and their objections to the proposal can be summarised as:

The proposed car stacker will be noisy and future residents will find it inconvenient and instead park in the streets around the site;
The proposal will result in additional parked cars in the vicinity of the site and this will impact on the availability of on-street car parking spaces in an area which is already heavily congested with on-street parking;
The proposal breaches the height of buildings development standard and should comply with the maximum height for the site;
The proposal will result in additional and unreasonable overshadowing of the northern façade of the adjoining residential flat building at 39 Dolphin Street;
The proposal will result in acoustic impacts when groups of people living at the boarding house congregate in the garden;
The proposed balconies on the northern elevation overlook the private open space of the dwellings to the north of the site;
The development could be used for tourist accommodation and not as a boarding house;
The Plan of Management is not finalised and is dealt with by a condition of consent, which excludes the community from making any contribution to the rules and requirements regarding the future management of the boarding house.

The proposal

The proposal is for a boarding house consisting of 17 rooms (maximum of 22 occupants). The design of the proposal is divided into two separate buildings, Block A is at the front, eastern end of the site, with a site entry adjacent to the southern boundary and Block B is at the rear, eastern end of the site. Block A includes a double garage fronting Courland Street with car-stackers, to accommodate 4 cars on-site. The proposal includes parking for 4 motorcycles and storage for 4 bicycles.
Block A is four storeys high and Block B is two and three storeys high.
Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original proposal. The changes made to the original proposal can be summarised as:

Block B is reduced in height and floor area;
The number of rooms is reduced;
The side setback of the rear portion of Block A from the northern boundary is increased to 2m;
The rear setback of Block B is increased from 6m to 6.5m;
The car parking spaces are increased from 2 to 4 spaces using car-stackers;
The motorcycle parking is increased from 2 spaces to 4 spaces;
The number of bicycle storage spaces is increased from 2 spaces to 4 spaces;
The size of the bin room is increased;
The main entrance is relocated to be adjacent to the southern boundary;
The manager's room is relocated to the front of Block B;
The façades are redesigned to increase articulation;
The floor space ratio (FSR) is decreased from 1.05:1 to 0.9:1.

Planning framework

The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Clause 29 of SEPP ARH is as follows: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if: (i) in the case of development in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
The site is zoned R3 Medium Density Residential and the proposal is permissible with consent, pursuant to Randwick Local Environment Plan 2012 (LEP 2012). 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 enable other land uses that provide facilities or services to meet the day to day needs of residents. • 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. • To enable small-scale business uses in existing commercial buildings.
The height of buildings development standard for the site is 12m (Height of Buildings Map Sheet HOB_007 LEP 2012).
The floor space ratio (FSR) development standard for the site is 0.9:1 (FSR Map Sheet FSR_007 LEP 2012).

Expert evidence

Mr Anthony Betros (applicant) and Mr Jeff Mead (respondent) provided a joint report on planning issues (exhibit 4). Ms Catriona Mackenzie (applicant) and Mr David Meredith (respondent) provided a joint report on arboricultural issues (exhibit 5).

Height of the proposal

The parapet of Block A is RL 32.524. Block A, at the street front, complies with the 12m height of buildings development standard of 12m, however, due to the fall of the site towards the rear, the height of the rear of Block A is 13.5m. Block B is well below the 12m height of buildings development standard at RL 28.960 for the three storey portion.
The parties agree that sub-cl 29(4) of SEPP ARH permits the Court, as the consent authority pursuant to s 39(2) of the LEC Act, to consent to the proposal notwithstanding its noncompliance with the height of buildings development standard, without requiring a cl 4.6 written objection under LEP 2012 (Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 [49]).
I accept the parties' agreement that sub-cl 29(4) of SEPP ARH allows the Court to determine whether the variation to the height standard is appropriate and I accept the planning experts agreement that the height of the proposal is acceptable for the following reasons:

The floor space ratio (FSR) of the proposal complies with the FSR Development Standard in LEP 2012 of 0.9:1 (without availing the proposal of the additional FSR of 0.5:1 available under sub-cl 29(1)(c)(i) of SEPP ARH), which indicates that the proposal is consistent with the bulk and scale permissible in the R3 zone;
The four level presentation of the proposal is compatible with the four level residential flat building immediately to the south of the site;
The exceedance of the height of buildings development standard by a maximum of 1.5m at the rear of Block A does not result in any additional overshadowing of the northern façade of 39 Dolphin Street on the winter solstice;
The proposal is compatible with the character of the local area, as the majority of the built form of the proposal is below the 12m height limit and the bulk of the proposal is divided into two separate blocks. The proposal will be within a landscaped setting;
The proposal accommodates underbuilding storage of water in the event of flooding at the rear of Block A;
The proposal has increased setbacks along the northern side of the site when compared to the original proposal, which suitably ameliorates previous concerns in relation to the height, visual bulk and scale of the development as viewed from the rear of properties at 46 and 48 Coogee Street;
The reduction in height and floor space of the rear building, Block B, assists in reducing the overall visual bulk of the proposal;
The reduced height of Block B does benefit 39 Dolphin Street by providing additional solar access when compared to the original proposal. There are no primary living area windows or balconies at 39 Dolphin Street affected by the proposal, as these areas are located on the east/rear and front/western elevation of the adjoining building; and
The planning experts agree that the proposal meets the objectives of the height of building development standard and that the proposal will be compatible with the desired future character of the locality and the impacts on neighbouring properties are acceptable.

I accept Council's submission that the amended proposal addresses the Council's contention regarding the exceedance of the height of buildings development standard in LEP 2012 and the objection regarding the height of the proposal raised by the resident objectors.

Insufficient on-site car parking

The proposal provides four on-site car parking spaces and the parties agree that the minimum requirement of on-site car parking spaces is three, at sub-cl 29(2)(e) of SEPP ARH. On that basis, the number of on-site car parking spaces cannot be used as a ground to refuse the proposal, at sub-cl 29(2) of SEPP ARH.
Condition 18 of Annexure A requires the applicant to demonstrate to the satisfaction of the PCA that the proposed car-stacker system is able to be provided within the space allocated for parking. Condition 91 of Annexure A for the Plan of Management (PoM) to be submitted to Council requires the PoM to include provisions for the adequate training of car owner occupiers of the boarding house on the use of the car-stacker system. Condition 84, regarding the lodgement of an acceptable PoM, requires a system to be installed for notice to be given to vehicles approaching the boarding house that the car stackers are full, or for car spaces to instead be allocated to particular units.
In regard to the resident objectors' concerns regarding the potential for acoustic impacts by the operation of the car stacker, condition 83 of Annexure A requires a detailed report from a suitably qualified and experienced acoustic consultant which demonstrates and certifies that noise and vibration from all plant and equipment of the proposal satisfies the relevant legislative provisions and policies of the applicable authorities.

Insufficient motorcycle parking

The planning experts agreed that this contention is resolved by the reduction in room numbers and the provision of 4 motorcycle parking spaces in the proposal and I accept their agreement.

Flooding impacts

Council submits that the Council's engineer is satisfied that the proposal will not result in any adverse impacts on floodplain storage or the movement of floodwaters through the site, as Block B is to be constructed as a slab on piers in order to satisfy Council's flood storage and floodway requirements and the floor level of Block B is now at RL 19.64 AHD, 500mm above the floodplain level. Council submits that the detailed requirements in conditions 22 and 23 of Annexure A regarding stormwater drainage will ensure the site's stormwater drainage system is adequate. I accept Council's submission regarding the resolution of this contention.

Impact on trees

The arboricultural experts agreed on amendments to the proposal, described in detail at conditions 9 and 59 - 64, which address the Council's contention regarding the potential for the proposal to have an adverse impact on two large and mature trees on adjoining properties close to shared boundaries. I accept the agreement of the arboricultural experts that the imposition of condition 9 and conditions 59 - 64 will ensure the preservation of the trees.

Waste management

The planning experts agreed that this contention has been resolved by providing the required number of bins in the proposal (as shown on the Ground Floor Plan, DA1.01G, exhibit A) and I accept their agreement.

Visual privacy

In response to an objection from a resident to the north of the site regarding overlooking from balconies of the rear yards of dwellings fronting Coogee Street, the parties agreed to an additional paragraph at (b) of condition 2, which requires amended plans that show privacy screens to the balconies of units 1, 4, 7 and 13 to prevent overlooking to the north.

Conclusion

In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders

The orders of the Court are: 1. By consent, the appeal is upheld. 2. Development Application No. 827/2014 for a boarding house at 23 Courland Street, Randwick is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1 and A, are returned.

Susan O'Neill Commissioner of the Court 10369 of 2015 O'Neill (C) (418 KB, pdf)

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: 05 January 2016

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