Gilfillan v Wagga Wagga City Council [2012] NSWLEC 1253 | Case summary

The evidence 12The Court heard expert planning evidence from Mr J Laycock, for the council and Mr G Salvestro, for the applicant. 13The Court visited the site and surrounding area and heard evidence from and on behalf of residents. The key concerns were that the proposed serviced apartments are a commercial use which is incompatible with the residential use of the area and that the form of development would have an adverse impact on the streetscape. The adjoining residents considered that the height, bulk and setback of the buildings along almost the whole length of the site would adversely impact on their amenity, particularly their rear open space. They were also concerned about loss of privacy and solar access. Residents were concerned about the increase in traffic likely to be generated by the proposal and the impact on the unnamed lane, which is narrow and unsealed. Permissibility 14Mr Laycock and Mr Salvestro agree that the proposal consists of "self-contained suites that are proposed to provide temporary or short-term accommodation on a commercial basis for tourists and visitors (generally working visitors) for periods of between one (1) night and six (6) months". 15Mr Laycock considers that the proposal is characterised as "hotel or motel accommodation" and as "serviced apartment" under the LEP. As "serviced apartment" is not "permitted with consent" in the Land Use Table for the R1 Zone and "hotel and motel accommodation" is prohibited in the R1 zone, Mr Laycock considers that development for the purpose of "serviced apartment" would also be prohibited in the zone. 16Whereas Mr Salvestro considers the proposal is clearly and most appropriately defined as "serviced apartment" under the LEP. Although he conceded under cross examination that the characteristics of the proposed use would fit into both definitions of "hotel or motel accommodation" or "serviced apartment". 17Development "permitted with consent" in Item 2 of the Land Use Table for the R1 Zone identifies "any other development not specified in Item 2 or 4". "Serviced apartment" is not identified in item 2 (without development consent) or item 4 (prohibited) and in Mr Salvestro's opinion is therefore permissible with consent in the R1 Zone. 18Mr Salvestro referred to Practice Note 11-001 Preparing LEPs using the Standard Instrument: Standard Clauses prepared by the Department of Planning (PN 11-001). Direction 3 for Land Use Table provides: Compulsory The following directions must be followed when developing the provisions to apply in each zone in the Land Use Table. ...... Direction 3. Items 2, 3and 4 of each zone requires a relevant entry to be inserted. The following may be entered: (a) particular uses, (b) the word "Nil" (c) the words "Any development not specified in item [specify item number or numbers]" so long as all residual (ie non-specified) uses are covered). 19In Mr Salvestro's opinion, "serviced apartment" and "hotel or motel accommodation" are separately defined uses in the LEP. Development that is permissible with consent includes "Any development not specified in item 4" which must include all residual (defined uses). Therefore as "serviced apartment" is not specified in Item 4, it would be permissible with consent, despite "hotel or motel accommodation" being a specified use (and therefore prohibited) in Item 4. Findings 20The Dictionary of the LEP relevantly includes the following definitions: hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that: (a) comprises rooms or self-contained suites, and (b) may provide meals to guests or the general public and facilities for the parking of guests' vehicles, but does not include backpackers' accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation. Note. Hotel or motel accommodation is a type of tourist and visitor accommodation-see the definition of that term in this Dictionary. serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents. Note. Serviced apartments are a type of tourist and visitor accommodation-see the definition of that term in this Dictionary. tourist and visitor accommodation means a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following: (a) backpackers' accommodation, (b) bed and breakfast accommodation, (c) farm stay accommodation, (d) hotel or motel accommodation, (e) serviced apartments, but does not include: (f) camping grounds, or (g) caravan parks, or (h) eco-tourist facilities. 21The proposed development is "tourist and visitor accommodation". The characteristics of the use falls within the definitions of both "hotel or motel accommodation" and "serviced apartment" as defined in the LEP. 22Development for the purposes of "hotel or motel accommodation" is expressly prohibited in Item 4 of the Land Use Table for the Rl Zone under the LEP. Development for the purposes of "serviced apartments" is not specifically referred to in the Land Use Table for the R1 Zone. The Land Use Table provides that "any other development not specified in item 2 (permissible without consent) or 4 (prohibited)" is permissible with consent. The key disagreement between the parties is whether because "serviced apartment" is not specified in Item 4 it is permissible as an innominate use in the R1 zone. 23Mr Bradbury, for the council, submits that "it is a well accepted principle of planning law that development falling within the definition of an activity which is expressly prohibited does not become permissible simply because it also falls within another definition: see Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343 (at [57] to [67]) applying Egan v Hawkesbury City Council (1993) 79 LGERA 321 and Hawkesbury City Council v Sammut (2002) 119 LGERA 321; see also Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2001) 114 LGERA 345." 24Mr Bradbury outlined the circumstances of the appeal in Abret, where "the applicant had sought a declaration that development for the purposes of a seniors living development was permissible with development consent under the Wingecarribee LEP. The proposed development, which comprised 138 dwellings and a number of community facilities, fell within the definitions of both "seniors housing" and "residential flat building" in the LEP. In the relevant zone, development for the purposes of a residential flat building was expressly prohibited while development for the purposes of seniors housing was not specifically referred to. Development for a purpose not specifically identified in the land use table was stated to be permissible with development consent. The applicant argued that, as seniors housing was not expressly prohibited by any provision of the LEP, it was therefore permissible with development consent". 25In Abret the Court of Appeal held that the express prohibition of residential flat buildings was determinative and that it did not matter that the proposed development may have otherwise been permissible as an innominate use. 26Mr Bradbury submits that "the facts before the Court here are materially the same as those dealt with by the Court of Appeal in Abret. The proposed development falls within the definitions of both "hotel and motel accommodation" and "serviced apartment". As development for the purposes of hotel and motel accommodation is prohibited, the development application must be refused. The fact that development for the purposes of serviced apartments may have otherwise been permissible with consent (as an innominate use) cannot overcome that express prohibition". 27The Applicant submits that the proposal is for a "serviced apartment" development as defined in the dictionary of the LEP. The development is properly categorised as a "serviced apartment', is permissible in the R1 General Residential zone and may be approved. Abret is distinguishable from the circumstances of this case as the LEP is made under the Standard Instrument and must comply with the requirements of PN 11-001. If the intention was that "serviced apartment " is a prohibited use in the R1 zone it should be specified as such in Item 4 of the Land Use Table. The absence of an explicit prohibition means that the use is permissible with consent as "other development not specified in item 2 (permissible without consent) or 4 (prohibited)". 28The applicant also submits that the development proposal involved a thorough pre-application consultation process with council to ensure the proposal was permissible. He referred to the council assessment report, which stated that under the Land Use Table for the R1 zone, serviced apartment is not a prohibited use and therefore the proposed development is permissible with consent. Further, the report recommended approval of the application as did the subsequent review under s82A of the EPA Act. 29I do not accept that the matters raised by the Applicant are reasons that would distinguish the application from the established principles in Abret. The characteristics of the proposed use fit into the definition of both "hotel or motel accommodation" and "serviced apartment". "Hotel and motel accommodation" is expressly prohibited in the R1 zone under the LEP, because it also fits into the definition of "serviced apartment" and may have otherwise been permissible as an innominate use, does not overcome this prohibition. For these reasons the application must fail. For completeness, I will discuss the other issues in dispute between the parties. Consistency with zone objectives 30The key disagreement between the experts is whether the proposal is "housing" for the purposes of the objectives for the R1 zone and consequently whether it is consistent with the relevant objectives. 31Mr Salvestro considers "serviced apartment" to be "housing" as people can live in this form of accommodation for up to six months. Further, in his opinion, "community" would include both temporary and permanent residents. The proposal meets the "housing needs of the community" and provides "for a variety of housing types and densities". The proposal is therefore consistent with zone objectives one and two in relation to housing. 32In Mr Laycock's opinion, the proposal provides for "temporary or short term accommodation on a commercial basis" and it is therefore not housing which would provide permanent residential accommodation for the community. The proposal therefore does not meet zone objectives one and two in relation to housing. 33Further, Mr Laycock considers that "residents" refers to the permanent occupiers of residential housing in the community and not to tourists and visitors visiting the community and occupying commercial accommodation. The proposal therefore does not meet zone objective three, as it is not "other land uses that provide facilities or services to meet the day to day needs of residents". As the proposal is for "housing", in Mr Salvestro's opinion, this objective is not relevant. 34Both Mr Salvestro and Mr Laycock agree that the fourth objective in relation to the provision of infrastructure is not relevant to the proposal. Findings 35Clause 2.3(2) of the LEP requires that the consent authority must have regard to the zone objectives. The objectives of the Zone R1 General Residential are: · To provide for the housing needs of the community. · To provide for a variety of housing types and densities. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To ensure co-ordinated and cost-effective provision of physical, social and cultural infrastructure in new residential areas. 36The applicant submits that the application is consistent with the applicable objectives of the R1 General Residential zone. It is consistent with the first and second objectives as the proposed serviced apartment development is a form of "housing" and the "community" would also include both permanent and temporary residents. The third and fourth objectives are not relevant to the proposal. 37Mr Bradbury submits that the R1 zone is a residential zone and that the permitted uses are either residential or uses that service residential. The term "residential" implies a degree of permanence and short term or temporary accommodation provided on a commercial basis for tourists or visitors is not residential development (see Graincorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143). 38Mr Bradbury submits that "housing" refers to other permitted residential housing land uses in the Rl zone such as "attached dwellings", "boarding houses", "dwelling houses", "group homes", "hostels", "multi dwelling housing", "residential flat buildings", "semi detached dwellings" and "seniors housing". 39Mr Bradbury referred to SJ Connelly Pty v Ballina Shire Council [2011] NSWLEC 1045 where at [103] to [108] Brown C recognised that "there is a fundamental incompatibility between short term and long term accommodation, particularly when they share a common level of a building". Brown C noted that there are differences in behaviour, living and activity patterns between short-term and permanent occupants and that short-term occupants are generally likely to have less concern about maintaining amenity. 40In relation to the third objective, Mr Bradbury submits that 'resident' means a person who lives within a reasonable distance of the site and who could gain reasonable access to the site and does not extend to all residents from the local government area or beyond (see Capuano v Port Macquarie-Hastings Council [2011] NSWLEC 1043). The only persons who would use the proposed development are persons who are visiting Wagga Wagga and who reside elsewhere; the proposed development does not provide facilities or services to meet the day to day needs of residents in the area. 41I accept the evidence of Mr Laycock and for the reasons outlined in Mr Bradbury's submission I find that the proposal is not "housing" and therefore does not meet the "housing needs of the community" or provide "for a variety of housing types and densities". The proposal would be an "other land use" referred to in the third objective but it does not meet the day to day needs of residents but rather provides temporary or short term accommodation on a commercial basis to visitors and tourists. Response to site and character of the area 42Mr Laycock and Mr Salvestro agree on the character of the locality as being "an established residential area characterised by mostly one-storey detached dwellings and units". They recognise that there are two storey elements within the locality and medium and higher density residential development to the south of the site in the R3 zone. 43The experts agree that the proposal does not significantly impact on the streetscape of Darlow Street when viewed from the east of the site along Darlow Street and the unnamed lane and further west from about 14 Darlow Street. However, they disagree on the impact of the proposal in the immediate vicinity of Darlow Street and adjoining properties. 44The experts agree that the DCP does not provide specific controls for serviced apartment development, but that the controls for residential development in Section 9 of the DCP provide guidance. They also agree that AMCORD as well as State Environmental Planning Policy No 65 - Design Quality of Residential Development (SEPP 65) and the Residential Flat Design Code (Code) assist in the assessment of streetscape impact. 45The key disagreement between Mr Laycock and Mr Salvestro is whether the proposal provides adequate side setbacks. Mr Laycock referred to s 9.3.7 of the DCP which states that "side and rear setbacks are important to maintain amenity between neighbouring sites, and to provide space for landscaping". He considered that side setbacks need to be increased for additional building height. However, the DCP does not provide numerical control for side setbacks and consequently Mr Laycock considered the AMCORD building envelope side boundary setbacks for development with a building height greater than one storey to be relevant. The proposal does not comply with the AMCORD controls. 46Mr Salvestro considered the proposal had a minimal impact on the streetscape and complies with all the controls in the DCP that would apply to a residential development on the site. In his opinion, the building bulk and scale is not excessive as it is consistent with that which is expected for the area under the relevant controls. The side setbacks meet the objectives for the DCP control. He considers that AMCORD is a guideline and that even if it is applied there is only a minor non compliance with the envelope resulting from the upper pert of the development. The setbacks and two storey form do not result in unacceptable privacy or overshadowing impacts and will be screened by vegetation. Findings 47Section 1 of the DCP includes Guiding Principles which apply to all developments. These relevantly include: GP 2 - Site responsive development i. To design for compatibility with topography, physical characteristics and setting. ii. To achieve a positive contribution to the streetscape and/or natural environment. 48Section 2 of the DCP provides controls that apply to all developments which include the parking requirements for tourist and visitor accommodation. The parties did not refer to specific controls relevant to the proposed development in this section. 49The experts agree that the controls for residential development in s 9 of the DCP provide an appropriate guide for development that is likely to occur in the area. The Principles for residential development include: Design Quality - P5 Building siting, footprint, scale and bulk should be compatible with adjoining development and the established or intended built form. Site responsive development - P7 Respond to the issues highlighted in the site analysis, taking advantage of natural features, minimising potential impacts to neighbours and achieving compatibility with neighbourhood character. 50Section 9.1.2 provides land use directions for the R1 zone - established suburbs "to provide a guide to the intended type, form and density of future development. It describes the existing built form, future direction and opportunities and key priorities for the R1 Zone established areas: Existing built form Wagga Wagga's established suburbs are characterised by predominantly single storey detached dwellings. Most streets have consistent front setbacks of 6m, although in some suburbs the front setbacks are 7.5m. The trend towards larger dwelling "footprints", combined with the generous front setbacks, means that there is often not much space at the rear of the dwelling for a "good back yard". The Residential Design Principles and DCP controls encourage future development to rethink residential design to improve thermal performance, and make better use of orientation and site conditions. Future directions and opportunities The LEP allows a range of housing types in the R1 Zone. Where possible developments should seek to include different dwelling types, such as secondary dwellings and attached dwellings, to achieve variety and housing choice for future residents, especially where the site characteristics or location are suitable. Future development should respect the established character in the vicinity of the site, and aim to contribute positively to the streetscape and overall environmental quality of the locality. Key priorities for the R1 Zone established areas are: · Avoid excessive site cover by buildings and improve design outcomes, including reducing the dominance of garages in the front elevation. · Make good use of site orientation and spaces around buildings to achieve good useable private open space. · Ensure good connections between indoor and outdoor living areas. · Incorporate quality landscaping including mature trees. 51Section 9.3 includes controls for different forms of residential development in the R1 zone. These controls include land area per dwelling (s 9.3.1) ranging from 375sqm for residential flat buildings to 400sqm for single dwellings; site cover for sites between 900sqm to 1500sqm of 40% (s 9.3.2); front setback of 6m (s 9.3.6). The stated objective of each of these controls is to achieve compatibility with the existing character of the area. 52The 9.3.7 refers to side and rear setbacks. It provides: Side and rear setbacks are important to maintain amenity between neighbouring sites, and to provide space for landscaping. Side setbacks need to be increased for additional building height. Objectives O1 Ensure adequate separation between buildings for landscaping, privacy, natural light and ventilation. O2 Ensure new development continues the rhythm or pattern of development in the locality. O3 Provide access for maintenance. Controls C1 The rear setback for detached secondary dwellings is determined by site conditions and the setbacks of similar structures on adjoining and nearby sites. 53The desired future character sought by the DCP for the R1 zone is to provide a range of housing and dwelling types that "respect the established character in the vicinity of the site, and aim to contribute positively to the streetscape and overall environmental quality of the locality". The established character in the vicinity of the site in the R1 zone is predominantly single storey detached dwellings. The adjoining dwelling at 4 Darlow Street has a two storey extension which is visible from the street and adjoining properties. 54The proposal has responded to the single storey character of the street by providing a consistent front setback and a single storey element at the front of the buildings which face Darlow Street. However, this element is about 5m in depth and the majority of the buildings are two storey in height and extend along almost the entire length of the site. The two storey buildings will be clearly visible behind the single storey element and the length of the building will be visible down the central driveway and from the street and adjoining properties. 55There are examples of two storey developments which run along the length of their lots at the rear of the site. However, these are in the R3 zone and I do not accept that this is the desired future character sought by the DCP for the R1 zone. 56The development covers about 40% of the site which is consistent with the site coverage control for residential developments in s 9.3.2 of the DCP. However a considerable part of the site (about 35%) is occupied by hard surfaces comprising the driveway and car parking, including in the front and rear setback areas. About 25% of the site is soft landscaping but in the front and rear setback areas this is predominantly turf and low shrubs with limited tree planting which would not soften or screen the development or the surface car parking from view from the public domain. Similarly, there is limited shrub planting along the length of the central driveway which would not soften or screen the development. A continuous row of pencil pines is planted along the length of the site within the side setbacks. 57The proposed side setbacks are splayed along the east and west boundaries and range from about 1.3m to 2.11m. In Mr Laycock's opinion the side setbacks should comply with AMCORD, which requires the setback of the building to increase as height increases. Compliance with this guideline would require an increased setback of the upper parts of the building but would enable the lower parts to be closer to the boundary. While this is an appropriate guideline to establish the side setback of single dwelling houses, I do not consider it is relevant for a building which is over 40m in length. The height, length and setback of the buildings was the principle concern of the residents and should be considered in combination to ensure that the built form and its landscape setting are consistent with the existing context. Measures such as deleting the upper storey connections between buildings 1 and 2 and buildings 3 and 4 and increasing the separation between these buildings to reflect the pattern of built form and open space which currently exists would assist in reducing the bulk of these buildings and provide greater opportunities for landscaping. 58The built form and its landscaped setting are not consistent with the existing or desired future character of the area sought by the DCP and on this basis the application must also fail.

Gilfillan v Wagga Wagga City Council

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (7)