Hope No. 1 Pty Ltd v Blacktown City Council

The Site

1. The site is located in the suburb of Glenwood, at the intersection of Miami Street and Old Windsor Road. The site is legally described as Lot 102 DP1173797. The land is currently vacant. Adjoining the site along Miami Street is a two storey residential dwelling. Further along Miami Street the existing form of development is predominately two storey detached housing. There are a couple of home businesses and a medical centre in the residential development in proximity to the site.
2. Land to the north of the site (across Miami Street) has developed with fast food outlets, a car wash and a service station. No height or floor space ratio (FSR) controls apply to this land.
3. Land across Old Windsor Road to the east is located in The Hills Shire Council area and is zoned R1 General Residential under The Hills Local Environmental Plan 2012. Under this instrument the maximum height control for the land following the alignment of Old Windsor Road is 10m, and for the land further east (approximately 100m) from the site the maximum height control is 28m.
4. The Bus Transit Way and the Sydney Metro North West rail run parallel to Old Windsor Road. This infrastructure places the nearest bus stop within 120m and Bella Vista Station (under construction) is approximately 800m from the subject land.
5. When defining the local area, the planners agree that the following area bounded in green represents the local area: (Ex 3)

Relevant Planning Controls:

1. The development application is sited on the corner of a classified road. Pursuant to cl 102 of State Environmental Planning Policy (Infrastructure) 2007 the application was referred to NSW Roads and Maritime Service who raise no objection or conditions required for the development.
2. The application was lodged with a Preliminary Site Assessment of the subject land prepared by Envirotech Environmental and Engineering Consultancy Services in June 2017 (Ex A). This report concludes that the site is suitable for the development proposed. On the basis of this report, I am satisfied that the precondition at cl 7 of State Environmental Planning Policy No 55 - Remediation of Land is satisfied.
3. The application is made pursuant to the provisions of Div 3: Boarding Houses within SEPP ARH.
4. Division 3 of SEPP ARH at cl 27 details the following exclusions to the application of the instrument: 27 Development to which Division applies (1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses. (2) Despite subclause (1), clauses 29, 30 and 30A do not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area. (3) Despite subclause (1), clauses 29, 30 and 30A do not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones.
5. An 'accessible area' is defined in SEPP ARH as: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.
6. The Statement of Environmental Effects, and the amended Traffic Report of October 2018, argue that the development is in an accessible area as it is "400 metres walking distance of a bus stop used by a regular bus service that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday" (refer par [17]). This is accepted by the Council.
7. At cl 29 of SEPP ARH the instrument details standards that, if achieved by the development, cannot be utilised as grounds for refusal of the application. With the exception of the provision of off-street parking these are met by the development.
8. Relevantly cl 29(2)(e) of SEPP ARH states: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: …. (e) parking if: ... (ii) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 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,
9. The application of subcll 29(2)(e)(ii) and (iii) is that if 8 onsite parking spaces were provided, the adequacy of parking for the proposed use could not be utilised as a ground for refusal. The application proposes six onsite spaces.
10. Prior to an amendment to SEPP ARH in June 2018 the parking rate at cl 29(2)(e)(ii) was 0.2 spaces per boarding room. The Explanation of Intended Effect prepared by the NSW Department of Planning and Environment supporting the amendment states that: "The proposed new standard ay Clause 29(2)(e) is 0.5 spaces per boarding room. The intent is to reduce on-street parking impacts generated by boarding houses." (emphasis added) (Ex B)
11. At cl 30 of SEPP ARH the instrument details standards the consent authority must be satisfied are achieved by the development application. It is agreed by the parties that these standards are met by the proposed development.
12. Clause 30AA was inserted into SEPP ARH on 28 February 2019. It states: 30AA Boarding houses in Zone R2 Low Density Residential A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
13. Pursuant to cl 54C: Savings and transitional provisions, cl 30AA does not apply to the current development application as it was "made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement."
14. Pursuant to cl 30A of SEPP ARH the Court, prior to consent, is required to consider whether the design of the development is compatible with the character of the local area.
15. LEP 2015 applies to the site. Pursuant to LEP 2015 the site is zoned R2 Low Density Residential. The consent authority must have regard to the objectives of the zone when determining a development application (cl 2.3(2) of LEP 2015). The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.
16. Boarding Houses are permissible with consent in the zone.

Public Submissions:

1. In accordance with the provisions of Blacktown Development Control Plan 2015 (DCP 2015) the development application was notified to adjoining and nearby properties. Council received 46 individual letters and a petition objecting to the application. Council also received one submission in support of the application. The objections raised the following main issues:

• traffic problems
• lack of onsite parking will impact on-street parking in side streets
• safety issues arising from the driveway location
• privacy impacts
• amenity impacts
• scale of the development.

1. The amended plans were similarly notified and issues consistent with the preceding were raised in the submissions on the amended plans.
2. I have read and considered the submissions received from both notifications.
3. At the commencement of the proceedings onsite evidence was heard from a number of objectors to the application. The issues raised by these objections can be summarised as follows:- 1. residents have a significant concern in relation to the traffic generated by the development and its effect on the performance of Miami Street; 2. that the development provides insufficient onsite parking which will result in impacts to the availability of on-street parking in the vicinity of the site; 3. the location of the proposed driveway will create a safety risk for drivers and may result in traffic accidents. In particular when completing a left turn onto Miami Street drivers will watch for right hand traffic and have insufficient time to react to cars entering or exiting the site; 4. vehicle entry and exit to the existing residential properties can be difficult. The resident noted that she reverses out of her driveway; 5. the height of the development will result in overshadowing to the adjoining properties rear yard; 6. the use of a car stacker is inappropriate; 7. concern that the boarding house will not be properly maintained; 8. the development will impact on the privacy of adjoining dwellings by allowing overlooking; 9. concern about how traffic and parking will be managed during construction; and 10. that the proposed development does not fit into the residential and family nature of the existing area.

Experts:

1. For the applicant the Court heard expert planning evidence from Ms Nicole Lennon, and traffic evidence from Mr Ken Hollyoak. The Council relied on planning evidence from Mr Glen Apps and traffic evidence from Mr Craig McLaren. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention.
2. As a result of the conferencing process a joint planning expert report was prepared which was tendered as Exhibit 3 and a joint traffic expert report was prepared and tendered as Exhibit 4.

Is the development compatible with the character of the local area?

1. As noted at par [12] the planners have agreed an area of the locality which is relevant to determining the compatibility of the development with the character of the local area in accordance with cl 30A of SEPP ARH.
2. The planning experts are agreed that the relevant test for compatibility is expressed in one of the Court's planning principles: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 at [22]-[31] ('Project Venture').
3. In her evidence Ms Lennon emphasises the location of the subject site is at the junction of three different zones, namely: SP1 Special Activities, R2 Low Density Residential and R1 General Residential. She describes the local area as follows: "The area to the north is not restricted by height or FSR controls and the vacant land to the east enjoys height controls between 10 and 28 metres and FSR's at 1:1 and 1.5:1. The character of the local area is a mix of residential and commercial built forms surrounding large corridors of land dedicated to transport infrastructure. The emerging character particularly to the east will include taller and denser forms of development. The design of the proposal is considered consistent and compatible with both the current and emerging character of the local area." (Ex 3)
4. It is Ms Lennon's evidence that the architectural design of the proposed building 'has been described to reflect and compliment the dwelling forms that make up part of the local area' (Ex 3). Further she argues that the site coverage of the development would not be noticeably different to the adjoining residential development and has a proposed height under the 9m maximum height limit in LEP 2015.
5. Ms Lennon describes the following elements of the design and built form that in her opinion demonstrate consideration and compatibility of the development: "1. The building placement respects the Council's DCP controls relating to setbacks and conforms to the established setback of the site's only Miami street front neighbour to the west. 2. The use of both horizontal and vertical components to the façade, mixed materiality (rendered painted brickwork, sandstone and metal roof sheeting) along with a neutral colour palette make a positive contribution to the streetscape. 3. The car parking accommodation is recessive to the front façade by 2m. 4. Further, the proportions of the doors and windows are of a residential scale and the building will present to the street as a contemporary residential land use." (Ex 3)
6. In the alternative Mr Apps argues that the primary purpose of the requirement for the consent authority to consider the compatibility of the development with the character of the locality 'must be to ensure development respects the character of the zone. Any focus on character should be limited to what is taking place in the R2 zone, notwithstanding that the local area includes other zones and other forms of development' (Ex 3).
7. Notwithstanding the commercial development opposite the site, it is Mr Apps' evidence that: 'such forms should not be replicated in the residential zone' (Ex 3).
8. In contrast to Ms Lennon, Mr Apps argues that the design of the building, and in particular the provision of the car stacker under the first floor overhand, give the proposed building a commercial appearance. He concludes that this appearance is uncharacteristic in the local area. His reasoning is as follows: "31. The signage and the design of the building combine to give the development a commercial appearance which is out of keeping with the single dwellings in the area. 32. The scale of the development is evident by its site coverage, notwithstanding that it is comparable to the dwelling to the west which itself is uncharacteristically larger than other dwellings in the area. GA notes that the dwelling to the west is of greater articulation than that evident in the subject development, particularly to the southern elevation. … 35. Leaving aside the issue that the car stacker would be impractical when situated under the first floor overhang, the car stacker is not a common element in the residential zone, particularly when viewed from the public domain. This reinforces the position that the proposal presents more as a commercial style development than a residential development." (Ex 3)
9. In his oral evidence Mr Apps identified four elements that he argues creates the incompatibility between the proposed development and the local area. He categorised these items, or elements, as: 1. that the proposed development does not present as a residential use; 2. the extent of hard stand proposed and the lack of available space for landscaping in the front setback; 3. the inclusion of signage on the front façade and in the form of a pylon sign at the corner of the site bounded by Miami Street and Old Windsor Road; and 4. the location of the residential parking in the front setback and the use of a vertical car stacker.
10. Mr Eastman notes in his submissions that cl 30A of SEPP ARH requires the Court to consider the compatibility of the development with the character of the locality, but does not "require a conclusion of positive satisfaction of compatibility" (Applicants Written submissions [6]). Mr Eastman notes this is consistent with the finding of Smithson C in Epping Property Developments Pty Ltd v Parramatta Council [2017] NSWLEC 1095 at [32] which states: "Under clause 30AA of the ARH SEPP, the consent authority cannot consent to the development of a boarding house under the SEPP "unless it has taken into consideration whether the design of the development is compatible with the character of the local area". This does not mean that development cannot be granted even if the design is incompatible with the character of the local area but requires the consent authority, in this case the Court, to first consider the compatibility issue."
11. In his oral questioning of the planning experts about the compatibility of the development with the character of the locality Mr Eastman adopted the approach of Fakes C in Valen Properties v Hurstville City Council [2015] NSW LEC 1045 ('Valen'). The approach adopted in Valen distils the principles in Project Venture to four questions: 1. What is/ are the existing and desired future character; 2. Are there any physical impacts; 3. Are there any visual impacts; 4. Is the proposal, while not the same, therefore capable of existing in harmony?
12. On the evidence of Ms Lennon, Mr Eastman submits that the development has positive compatibility with the local area.
13. Mr Eastman argues that Mr Apps in his evidence places inappropriate emphasis on the residential character of the local area (refer par [40]) when assessing the compatibility of the proposed development. Further he argues that in his assessment Mr Apps discounts:

• the extent of hard paving, manoeuvring area and visible parking in the existing character of the R2 Low Density Residential zone in the local area;
• the range of other non-residential uses that are permissible with consent in the residential zone that would (and do) influence the character of the local area;
• the effect of the extent of hard infrastructure adjoining the site (Old Windsor Road, the T-Way, and the North West Rail link) and their influence on the existing and future character of the local area.

1. He argues on the above basis the assessment of Ms Lennon, and her conclusion that the proposed development is compatible with the local area, should be preferred by the Court.
2. Finally Mr Eastman submits that by design the proposal very closely resembles a dwelling house. He argues that the development cannot be incompatible with the character of the local area as, the characteristics Mr Apps defines as the cause of incompatibility, are characteristic of the local area. Applying the questions in Valen he argues that on basis of the evidence of Ms Lennon the proposed development is capable of existing in harmony with the character of the local area.
3. In the alternative Mr Loether argues that Mr Apps has not restricted his assessment of compatibility to the form of the residential zone, but rather he has focussed on this area. He submits on Mr Apps evidence the development is incompatible with the existing and desired future character of the local area. Mr Loether argues that Mr Apps approach is that the medical centre and the proximate home businesses are the exception. He notes that Mr Apps argues the focus should be on the remaining built elements which are highly consistent in form, scale and materials. In contrast the pylon signage, extensive hardstand and lack of landscaping are uncharacteristic. On the basis of Mr Apps' evidence these lead to a visual impact and incompatibility.
4. Further Mr Loether argues that in her evidence Ms Lennon places too much weight on the future development in the R1 General Residential zone across Old Windsor Road in determining that the proposed development is compatible with the desired future character.

Findings

1. I accept that the area agreed by the planning experts at par [12] is the appropriate delineation of the 'local area' for the purposes of considering the compatibility of the proposed development.
2. Further I accept that any assessment of the proposed development against the character of the local area should include an assessment of the existing built form and also the character envisaged by the form of development contemplated by the permissible uses in each of the respective zones.
3. Importantly the subject site sits at the junction of a number of land use zones. I prefer Ms Lennon's assessment of the existing and likely built form arising from these zones. I am satisfied she has given the diversity of elements found in these contrasting zones appropriate weight in the consideration of the compatibility of the development.
4. It is not the case that the subject site exists surrounded by residential uses. In my observation most (if not all) views of the subject site include a view of either significant regional road infrastructure, commercial or retail development within the field of vision. This influences the character of the local area.
5. Further, focussing on the R2 Low Density Residential Zone, I accept the submission of Mr Eastman that there are a broad range of non-residential uses that are permissible with consent in the zone. These uses influence the existing and likely future character of the local area.
6. If the proposed development is considered against the matters set out in Project Venture, and in the context of the character of the local area, I am not persuaded that the elements identified by Mr Apps are such that they preclude the proposed building existing in harmony with the character of the local area.
7. I am satisfied that the proposed development will be in harmony with the buildings around it and the character of the local area as defined.

Is the development consistent with the objectives of the zone?

1. Council argues that the development fails to satisfy the objectives of the R2 Low Density Residential zone. They contend that 'The proposed development does not constitute low density residential development as it is of a bulk, scale and design that is out of keeping with the predominate form of development in the low density residential environment on-site' (Ex 1).
2. It is Mr Apps' evidence that: 'Notwithstanding that the proposal would provide a form of accommodation that meets the housing needs of the wider community within a low density residential environment, GA considers the scale of the development to not be 'low density' (Ex 3).
3. Mr Apps reaches this conclusion by making a comparison between the population density of the proposed boarding house and other development types permissible in the R2 Low Density Residential zone. In the joint report Mr Apps makes a comparison between the development and the permissible use of a dual occupancy. He concludes: "The site could be developed as a dual occupancy and provide accommodation for 10 persons. The proposal almost doubles that and results in a population density that is of an intensity that is out of keeping with a low density residential development." (Ex 3)
4. In his oral evidence Mr Apps also nominated the intensity of vehicle and pedestrian movements on the subject site as a factor in his assessment that the development is not consistent with the objective of 'providing housing for the needs of the community in a low density residential environment'.
5. In contrast it is the evidence of Ms Lennon that the proposed development complies with the built form controls prescribed in both LEP 2015 and DCP 2015. Further she notes that the Council raises no contention that the development creates amenity impacts for the adjoining properties. On this basis Ms Lennon concludes that the development is able to 'meet the housing needs of the wider community whilst maintaining the low density residential environment' (Ex 3).

Findings

1. In determining the compatibility of the development with the objectives of the R2 Low Density Residential Environment zone it is relevant to consider the other permissible land use in the zone table. Relevantly in LEP 2015 those uses include: Boarding houses; Centre-based child care facilities; Dual occupancies; Dwelling houses; Exhibition homes; Exhibition villages; Group homes; Health consulting rooms; Home-based child care; Home businesses; Places of public worship; Public administration buildings; Recreation areas; Respite day care centres; Seniors housing; and Veterinary hospitals.
2. I accept the evidence of Ms Lennon that the compliance of the development with the built form controls prescribed in both LEP 2015 and DCP 2015 is a relevant consideration in determining whether the development is consistent with the objectives of the zone. This is because these controls, along with the zoning and the permissible uses, are key in codifying the desired future character of built form sought by the Council for the local area.
3. In the context of the other permissible uses, and the consistency of the development with the relevant built form controls, I am satisfied that the proposed boarding house is not antipathetic to the objectives of the R2 Low Density Residential zone.

Is it appropriate to issue directions for amendment to facilitate clearance for the car stacker?

1. As part of its Amended Statement of Facts and Contentions (ASOFC) Council argued that the car stacker proposed had insufficient head room. The particulars state: "Inadequate head room exists for the top vehicle to be raised to allow for the lower space to use the vertical stacker. If the 3 top spaces have to be vacated be vacated first before the lower spaces can be raised to meet the ground level, the potential exists for vehicular conflicts and defeats the purpose of the vertical stacker." (Ex 1)
2. During the oral evidence of the traffic experts it was agreed that in the raised position the top level of the car stacker would require a clearance of 3.6m. The architectural plans indicate a clearance of approximately 3m (Ground floor ceiling RL74.20, level of pavement in South Elevation shown as RL71.21).
3. During the course of the proceedings the applicant sought leave to amend their development application to increase the clearance between the proposed car stacker and the building overhang. This was proposed to be achieved by raising the floor level of proposed rooms 14 and 15, with a concurrent reduction in the floor to ceiling height in these rooms from 2.7m to 2.4m. This would result in an additional 300mm clearance for the car stacker.
4. The Council objected to the application for leave on the grounds that they were prejudiced by: the lateness of the motion; the fact that the planning experts had already been excused by the Court; and that the amendment sought may make consequential changes to the building and to the internal amenity of proposed rooms 14 and 15.
5. Following consideration of the submissions I refused leave to the amended plans for the following reasons: 1. The issue now sought to be addressed by the amendments were put to the applicant in the Council's ASOFC at contention 5(g). This document was filed in January 2019. The contentions raised by the Council were open to the applicant to address by the provision of amended plans or additional information prior to the commencement of the hearing; 2. The Court facilitated a conciliation process in September 2018 on the matters contended by Council that supported the refusal of the application. The provision of adequate onsite parking was one of those reasons; 3. Further, on the oral evidence of Mr Hollyoak, he sought to confirm head clearance during the joint conference process, providing an opportunity for an amendment to be made to resolve the inadequate clearance prior to the commencement of the hearing. 4. The Court's practice note for Class 1 appeals makes it clear that Applicant's should ensure, before commencing their development appeal, that their application, and the development proposed in the application, is considered, complete and final and suitable for assessment at the final hearing. 5. I accept the submission of Mr Loether that the Council is prejudiced by the amendment sought to the application. I accept his reasons as detailed at par [70].
6. Given the question of amended architectural plans was aired in the proceedings, Mr Eastman submits it is appropriate for the Court to consider if it should issue directions to allow for the amendment to facilitate the required clearance for the car stacker prior to the Courts final determination of the matter.
7. Mr Eastman submits that the amendments are minor and identifiable amendments on the following grounds: 1. they fall within the power of the Court to grant leave to an applicant to amend their development application 2. the changes involve the insertion of two steps at the entry to Rooms 13 and 14 to accommodate an elevated floor level of 300mm and a concurrent reduction in the floor to ceiling height in these rooms to 2.4m; 3. No changes are required to the external form of the building to accommodate the increased clearance, including fenestration. 4. Given the above there is no uncertainty as to the amendments.
8. Mr Loether argues that it would be inappropriate for the Court to issue directions for the application to be amended to facilitate clearance for the car stacker as to do so would result in the Court deferring a matter that is fundament and integral to the development proposed. Further he argues that the process of directions would allow no opportunity for the Respondent to provide evidence or submissions on the amendments proposed.

Findings

1. Clause 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides: 55 What is the procedure for amending a development application? (1) a development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. ...
2. Pursuant to s 39 of the LEC Act the Court may exercise the power of the Council under cl 55 of the Regulation. I am satisfied that the amendments sought by the applicant in seeking leave are not such that they convert the application the subject of appeal into an original application.
3. In his decision in Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156 Sheahan J detailed the Courts approach in some appeals of providing an opportunity to applicants to amend their application, prior to the making of any final determination. He notes in that judgement at [16] that the amber light approach 'involves delivery of an interim judgement which falls short of outright refusal of the appeal, but indicates elements of concern in the application which could be amended, such that the appeal could be upheld and approval granted' (emphasis added).
4. Critically the "amber light" approach is essentially a finding by the Court that a particular proposal is not, in its current form, acceptable, but that with certain minor and identifiable amendments, the proposal would be acceptable.
5. However I am satisfied that adoption of such an approach is not warranted for this application on the grounds outlined in the following paragraphs, namely that subsequent an amendment to facilitate clearance for the car stacker the appeal would not be upheld on merit grounds as I find in the following section of this judgment that the provision of onsite parking (whether three or six spaces) is insufficient for the proposed use.
6. Concurrently I am also not persuaded that the amendment to the building identified by the applicant, namely the reduction in the ceiling height of Rooms 14 and 15 would be the limit of the amendments that would result for the following reasons: 1. the clearance required, as agreed by the traffic experts, is 3.6m. The additional 300mm provided by the reduction in the ceiling height would provide a clearance approximating 3.3m without other consequential amendment; 2. An overlay of the first floor and ground floor plans indicate that some part of Room 13 may also be affected by the height clearance required for the car stacker proposed.
7. On this basis I am satisfied that the amendments required to accommodate the clearance for the car stacker are not minor and identifiable amendments.
8. These findings make Mr Eastman's alternative submission of affecting the head clearance changes to the proposed through application of conditions of consent under s 4.17(1)(g) of the EPA Act inappropriate.

Does the development provide sufficient onsite parking for the proposed use?

1. Council contends that the provision of six onsite parking spaces is insufficient for the proposed use and that the under supply of car parking will unreasonably impact on-street parking in the vicinity of the site.
2. In the absence of certainty of the feasibility of the car stacker Mr Loether argues that the development relies on the provision of three at grade spaces to service the 17 boarding rooms. Consistent with his submission on the inadequacy of six spaces, Mr Loether argues that three onsite spaces is insufficient and would create unreasonable impacts for proximate on-street parking availability.
3. Further Mr Loether argues that, whether the parking provision is considered to be six spaces or three spaces, the reduction from the standard of eight spaces should not be accepted on the following grounds: 1. the applicant has provided insufficient justification for not providing the number of onsite parking spaces in cl 30(2)(a) of SEPP ARH; 2. the evidence of Mr McLaren is that the survey data relied on by the applicant to support the variation is: limited in scope and time period, and lacks detail on factors such as the occupancy rates of the boarding rooms at the time of the survey. As such Mr McLaren concludes the survey lacks veracity in supporting the conclusion that the boarding rooms will have a demand for onsite parking of less than 0.5/ boarding room; 3. the on-street parking relied on by the applicant to absorb any potential unmet parking demand are at distance from the subject site. This would make their utilisation less desirable and not practical; 4. the development makes no provision for visitor parking and there is potential for visitors to park in the forecourt/ driveway; 5. A Plan of Management (POM) is an inadequate response to the potential for access to the car stacker being blocked by either visitors or the servicing of the site by a garbage contractor.
4. Further Mr Loether notes that submissions received in response to the notification of the application raise concern that insufficient onsite parking will result in impacts to the availability of on-street parking.
5. In support of the variation to parking the applicant seeks to establish: 1. That the proposal is located in proximity to excellent public transport. 2. That the six spaces provided will be sufficient for the twelve boarding rooms proposed. 3. That within proximity of the subject site there is abundant on-site parking in the event that it is required.
6. In the addendum to their traffic assessment report The Transport Planning Partnership the applicant provides detail about the proximate public transport. It includes data on three bus stops, their proximity and the frequency of services. This can be summarised as: 1. Glenwood Park Drive after Alwyn Cres (Stop number: 2768105) Proximity: 400m, Peak frequency Route T70 AM: 15min, and PM: 20min. Route T75 AM: 20min, and PM: 30min. 1. Balmoral T-way (Stop number: 2155219) Proximity: 160m, Peak frequency Route 602X AM: 15min, and PM: 20min. Route 607X AM: 10min, and PM: 10min. Route T65 AM: 20min, and PM: 20min. Route T66 AM: 15min, and PM: 10min. 1. Balmoral T-way (Stop number: 2155220) Proximity: 160m, Peak frequency Route 602X AM: 15 min, and PM: 20min. Route 607X AM: 10min, and PM: 10min. Route 617X AM: 20min, and PM: 20min. Route T65 AM: 15min, and PM: 10min. Route T66 AM: 20min, and PM: 20min.
7. Mr Eastman submits that whilst the ARHSEPP allows for a reduction of parking demand for boarding house developed in proximity to public transport if they are managed by a public housing provider; this reduction is not available to the applicant. In his written submissions Mr Eastman notes: 'Even if it does not strictly extend, it demonstrates that proximity to transport is a key factor in lessening the demand for parking spaces' (Applicant's written submissions at 44).
8. On the basis of his survey data Mr Hollyoak argues the parking demand for this type of development can be computed as 0.36 spaces/ boarding room. Applying this rate he concludes that the parking requirement at the subject site would be 5.8 spaces. This parking demand was generated from a survey that was undertaken at 2506 Bundaleer Street Belrose. The Belrose site is a 39 room boarding house with provision of 15 at grade and 14 basement car parking spaces.
9. On the basis of analysis of the survey data Mr Hollyoak concludes that: "- the traffic generation if the boarding house is 0.13 trips per room (AM) and 0.27 per room (PM) even through there is not a rail line close by, only buses. - No cyclists or motorbikes were recorded entering the site. - There were some 6 pedestrians leaving the site in the morning and 4 entering in the PM peak. - The external car park was not fully utilised with a maximum of nine cars using the 15 car parking spaces available. - The underground car park had five of its 15 spaces occupied at the start of the survey period. - So the maximum occupation of the 30 parking spaces was 14. This equates to a demand of 0.36 spaces per unit. - It is noted that the site is 500m from buses on Forrest Way, but it does not have a railway station in close vicinity of the site." (Ex B)
10. It is Mr Hollyoak's evidence that 0.25 spaces per bedroom for boarding rooms in an accessible location is acceptable (Ex B). Given the proposed development at 6 spaces provides 0.375 spaces/bedroom Mr Hollyoak concludes that the variation to the standard of 0.5 spaces is warranted as the development can accommodate the surveyed demand.
11. Mr McLaren has a number of reservations about the survey conducted and its reliability as a basis for supporting a variation to the onsite parking provision. He details his concerns as follows: "(k) CM has concerns related to unknown visitation levels related to boarding houses that accommodates 19 persons (16 rooms). Further, CM considers that a development with 19 persons would not be construed as a domestic property, even if only 6 parking spaces are provided, given that the requirement is for 8 car parking spaces and that visitation levels for the proposed scale of the boarding house has not been determined. … (l) The traffic generation and peak parking demand surveys presented in the TTPP Report are based upon findings over a very brief time period on (presumably) one day restricted to the 7.00am to 9.00am and 4.00pm to 6.30pm periods for a site not within the Blacktown LGA. This limited survey would not be statistically reliable. Concerns are raised related in relation to relevant factors such as the occupancy of the Belrose site, it's relevance to Glenwood, the limited survey period, details of peak visitation levels on weekends by friends / family members of boarders, the use of Ubers and taxis for recreational trips and food deliveries (e.g. Uber Eats). (m) Without statistically significant data, inadequate data on unknown effects such as visitors / deliveries and no appropriate comparison site for the Blacktown LGA, it is recommended that the court exercise a cautionary approach and refuse the application. (n) CM considers that it is inappropriate and contrary to Clause 6.2 of BDCPA 2015 to rely upon on-street parking for the needs of residents of the proposed boarding house. That clause relates to non-resident demand such as visitors and short term parkers, not long term parkers, based upon KH's experience to date and with reference to the RMS Guide." (emphasis altered) (Ex 4)
12. In response to these concerns raised by Mr McLaren, Mr Hollyoak argues that most of the surveys underpinning the RMS Guide to Traffic Generating Developments were undertaken as one day peak hour surveys. Further Mr Hollyoak notes that he is not aware of any surveys undertaken by Government to support the increase from 0.2 spaces per boarding room to 0.5 spaces per boarding room in the amendment to SEPP ARH in June 2018. He concludes that in his opinion the survey figures are robust and may be an overestimate when comparing to the subject site as the rate of 0.36 spaces per boarding room recorded in Belrose was:

• Based upon a site with lesser accessibility whereas the subject site has a wide range of good public transport (T-Way and rail/metro)
• The parking rates may have included visitors to the site. (Ex 4)

Findings

1. The consent authority can grant consent to development that does not meet the parking standard at cl 30(2)(a) of SEPP ARH on the basis of a merit assessment of the application.
2. It is accepted by the parties that for a development to be compliant with the parking standard at cl 30(2)(a) of SEPP ARH on the subject site it would require a reduction in boarding rooms.
3. The first item advanced by the applicant in support of the variation to parking is that the subject sites location in proximity to 'excellent public transport'. This is argued on the basis that car reliance would be reduced.
4. I accept that the subject site meets the definition of an 'accessible location', refer pars [20] and [21]. It is on this basis that the site is able to access the provisions of SEPP ARH. The parking standard in the SEPP ARH is the same for boarding houses in accessible and non-accessible areas.
5. I have considered the information submitted by the Applicant in relation to public transport provision. The provision of public transport, its proximity and frequency and the relationship of these factors to the provision of onsite parking have been a consideration in a number of boarding house development decisions of the Court. For example in Sheer Property Group Pty Ltd v Randwick City Council [2013] NSWLEC 1168 ('Sheer Property') Fakes C made the following statement: "62 While it is clearly desirable for anyone who owns a car to park close to his or her dwelling, planning strategies that encourage higher density living in areas close to the city on public transport routes will inevitably lead to measures to decrease dependence on individual car ownership."
6. Similar considerations were applied in Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186, Dimitri Dilles v Randwick Council [2017] NSWLEC 1202 and Arkibis Pty Ltd t/a Arkhaus v Randwick City Council [2019] NSWLEC 1020.
7. However, I am not satisfied that the present application has the same characteristics in relation to public transport proximity and service provision. My reasoning is as follows: 1. The sites that were the subject of these judgements are in close proximity to the Sydney CBD or other centres of work making trip times significantly shorter than from the subject site which has bus trip durations to Sydney CBD or North Sydney of some 50 minutes (https://transportnsw.info/). 2. The sites where provision of public transport was seen as a factor in considering a reduction of on-site parking have materially shorter trip durations to these locations. I note that no data has been provided to establish if the site is well serviced by public transport to other centres such as Parramatta. 3. I accept that the new Metro station will improve accessibility of the subject site. However apart from viewing an advertisement for the station that asserted a frequency of services there is no evidence of the frequency of service or an analysis of the likely impact on the demand for parking undertaken by the Applicant apart from noting the stations location. 4. There is no evidence provided by the Applicant in relation to public transport options outside of peak times. These services would support residents in accessing supermarkets, services, and recreational facilities. 5. for SEPP ARH to apply the site must be in a location that is accessible to public transport.
8. I am not satisfied on the evidence before the Court that the public transport provision of the subject site is such that it warrants a reduction of the provision of onsite parking from 8 spaces to 6 spaces (or three if the car stacker in its current form is considered).
9. The second argument put by the applicant in support of a variation to the parking rates is that the rate of 0.5 spaces/boarding room is not reflective of the actual parking demand for boarding rooms.
10. As part of the documents prepared in support of the amended application (refer par [3]), the applicant prepared an addendum to their traffic assessment report. I have read this report. Included in this document is the following: "The applicant disagrees that the development is unsatisfactory with regard to the provision of off-street parking. The proposal complies with the ARH SEPP requirements as at the date the Development Application was lodged. Any additional parking demands can reasonably met by way of on street parking." (Ex B)
11. I acknowledge that the parking standard was increased from 0.2 spaces/ boarding room to 0.5 spaces/ boarding room through an amendment to the SEPP ARH in 2018. It is accepted by the parties that the rate of 0.5 spaces/ boarding room applies to the development application.
12. Part of exhibition material for the parking rate amendments to SEPP ARH was a document titled: 'Explanation of Intended Effect': Proposed amendment to State Environmental Planning Policy (Affordable Rental Housing) 2009- Boarding Houses. At Part 3 of that document it states: Proposal - Increase Parking Standards It is proposed to increase parking standards that cannot be used as grounds to refuse consent for boarding houses. The new higher standards align with those for one-bedroom dwellings in infill development under ARHSEPP. The proposed new standard at Clause 29(2)(e) is 0.5 spaces per boarding room. The intent is to reduce on street parking impacts created by boarding house developments. (emphasis added) (Ex B)
13. This accords with the conclusion of the applicant's assessment that any additional parking demands would be met by on-street parking in proximity to the site.
14. A number of residents in their submissions, and their oral evidence, raised concern about the undersupply of parking placing strain on the on-street parking available in neighbouring streets.
15. DCP 2015 at Part A, Section 6 details Councils requirements for parking provision for types of development. At 6.2 DCP 2015 provides the following principles or factors that the Council 'takes into consideration' in determining the parking provision for a development: "(a) The size and type of the development and its traffic generation; (b) The availability and accessibility of other public parking (c) Traffic volumes in the street network, including expected future traffic volumes relating to the City's road hierarchy. (d) Hours of operation and any other specific characteristics of the development proposal" (Ex 2)
16. DCP 2015 provides no specific rates for boarding houses, notwithstanding they are a permissible use in the R2 Low Density Residential zone, and defers to the rates provided in SEPP ARH.
17. In relation to the relevance of the comparison of the measured parking demand of an operation boarding house in Belrose I make the following observations: 1. At the time of the survey no detail has been provided in relation to the occupancy of the rooms. This makes it difficult to assess whether the parking utilisation is relatable to the total capacity of the development or a lower number based on occupancy. 2. There is no indication whether any of the parking utilised at the time of the survey was for visitors, or other uses of the development.
18. I accept the evidence of Mr McLaren at par [93] and his conclusion that there is inadequate data and to demonstrate that six onsite parking spaces would be sufficient to meet the demands of the proposed boarding house.
19. In my assessment of the applicant's requested variation to the parking standard I have given weight to the stated intent of the amendment to the standard to 0.5 spaces/ boarding room. Notably to: to reduce on street parking impacts created by boarding house developments.
20. Further I accept that in its current state the application has a 'guaranteed' provision of only three spaces given the lack of headroom clearance for the vertical car stacker. This is inadequate on either of the traffic experts analysis.
21. I am not satisfied that the quantum of onsite parking proposed for the development is sufficient to meet the demands of the proposed boarding house.
22. The final grounds on which the applicant argues that a variation to parking is warranted is that there is ample on-street parking to meet any excess demand from the development.
23. As part of the addendum to their traffic assessment report The Transport Planning Partnership commissioned parking surveys within a 400m radius of the subject site. These were undertaken on a weekday between 6AM and 8PM at night. The report concludes that: "Those surveys show that at any time during the survey, there were at least 46 parking spaces available on-street within 200m of the site and there were at least 204 spare parking spaces on street within 400m of the site. This clearly shows that if there is any overspill parking from the subject site that there is spare capacity in the local street car parking to accommodate this without causing any noticeable impact." (Ex B)
24. My review of the survey data demonstrates that much of the quantum of on-street parking counted is in areas distant physically from the subject site. Further it is circuitous in terms of pedestrian access relative to the subject site. Even the figure of 45 spaces within 200m appears to rely on available parking in Glenwood Park Road and Abdale Crescent which are not, in my assessment, in the immediate vicinity of the site.
25. For these reasons I am not persuaded that it is appropriate for this development to rely on off-street parking to make up a shortfall in parking, particularly in circumstances where a car stacker is utilised, which may be seen as less convenient or less conventional to occupants.
26. Having reviewed the reasoning put forward by the Applicant I find that the requested parking variation is not adequately justified or acceptable in the circumstances of the case (s4.15(1)(a)(i) of the Act). The application warrants refusal on these grounds.

Orders

1. It is accepted by the parties that the development cannot function in the form currently before the Court given insufficient head clearance is provided for the car stacker.
2. Given my findings that the parking variation is not adequately justified or acceptable in the circumstances of the case the development application warrants refusal and the appeal dismissed.
3. The Court orders that: 1. The appeal is dismissed. 2. Development Application No. DA-17-01113 for a two storey boarding house of 15 boarding rooms, manager's room, common rooms and associated car parking at 1 Miami Street, Glenwood is refused. 3. The exhibits are returned with the exception of Exhibits A, B, and 1. ……………. D M Dickson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2019