respondent. The appeal was dismissed. Development application D/2019/128 for the change of use to a serviced apartment was refused. Exhibits were ordered returned to the parties.
Key principles
Under cl 6.3(3) of the Leichhardt Local Environmental Plan 2013 (LLEP), consent could not be granted unless the Court was satisfied that the proposed development met the listed...
Owner's consent was a jurisdictional prerequisite where the development application, read with its accompanying documents and proposed conditions, sought work on strata common...
Although the consent authority had to consider the B2 Local Centre zone objectives, the development did not have to satisfy every objective to be permissible. The proposed...
Issues before the court
Whether the proposed serviced apartment was consistent with the objectives of the B2 Local Centre zone.
Whether flood planning requirements in cl 6.3(3) of the LLEP were satisfied.
Whether owners corporation consent was required for works on strata common property.
Whether the proposed change of use was in the public interest.
Plain English Summary
The Court refused the proposed conversion of a ground-floor commercial unit into a serviced apartment. The unit was below the flood planning level, the flood door relied on in argument was not part of the application and was not detailed enough to assess, and the Court was not satisfied that flood risk to occupants would be appropriately managed. The application documents also included works affecting common property, but the owners corporation had not given consent. Separately, the Court found the proposal generally inconsistent with the B2 Local Centre objectives and not in the public interest. The reasons therefore included both threshold legal requirements and an alternative planning-merits assessment.
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Deep Dive
2,189 words · generated 02/10/2026
What happened
Jetz Luxury Homes Pty Ltd brought a Class 1 development appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application D/2019/128. The application sought approval to change the use of an existing commercial unit, Unit 3 at 283 Parramatta Road, Leichhardt, to a serviced apartment. The land was Lot 3 in Strata Plan 89564. Commissioner Espinosa heard the matter on 21 August 2020 and delivered the decision and orders on 24 September 2020.
Cited legislation
No linked legislation citations have been extracted yet.
The parties agreed that four matters remained in dispute: consistency with the B2 Local Centre zone objectives; flood planning under cl 6.3 of the Leichhardt Local Environmental Plan 2013 (LLEP); whether the application included works outside the applicant's strata lot and lacked the necessary owners corporation consent; and whether a ground-floor serviced apartment in the local centre was in the public interest.
The flood facts were central. The unit's finished floor level was RL23.08m AHD, while the stated flood planning level was RL23.95m AHD. The existing building had higher-level floors, and the proposal relied on vertical evacuation in the event of flooding. A flood warning system was installed in the building's garage, which was not part of the applicant's unit. The parties also addressed the possibility of a flood door, but the Commissioner found that it was not included in the proposed development and was not supported by enough information to assess or impose an appropriate condition.
The application documents referred to a key lock box near the unit's access door. A proposed condition also referred to moving the flood-warning sensor to the Parramatta Road frontage and updating the flood-risk management plan for the whole property. Those details mattered because they indicated that the proposal was not confined to work within Unit 3.
The Court dismissed the appeal and refused the application. It did so on threshold grounds concerning flood planning and owners consent. It also made an alternative merits assessment, finding the proposal on balance inconsistent with the B2 zone objectives and not in the public interest.
Why the court decided this way
The flood-planning question arose under cl 6.3(3) of the LLEP. That clause stated that development consent must not be granted unless the consent authority was satisfied about the listed matters, including that the development was compatible with the flood hazard and incorporated appropriate measures to manage risk to life. The Commissioner treated this as a jurisdictional prerequisite, not simply a matter to be weighed against other planning considerations.
The competing experts took different approaches to risk. The applicant's hydraulic engineer focused on the number of people likely to be present: he estimated that a commercial or retail use could accommodate six to eight people, compared with a maximum of two in a serviced apartment. The Council's engineer considered exposure and occupant vulnerability, including that apartment occupants might be asleep during a flood and would not have workplace-based evacuation arrangements. The Commissioner accepted the latter approach, noting that the Floodplain Development Manual and the Leichhardt Development Control Plan (DCP) distinguished commercial from habitable spaces.
The proposed flood door did not resolve the problem. The application's Flood Management Plan relied on vertical evacuation and did not include the door. The applicant accepted in submissions and through its expert that the door was not part of the proposed development. The Commissioner also found that the Court had no sufficient particulars or specifications for the door or its maintenance regime. In those circumstances, the suggested condition could not provide a sufficient basis for the required satisfaction under cl 6.3. The Commissioner concluded that the proposal did not establish compatibility with the flood hazard under cl 6.3(3)(a) or appropriate risk-to-life measures under cl 6.3(3)(c).
The owners-consent issue was a separate threshold problem. The Commissioner considered the development application form together with its accompanying documents. Referring to Al Maha Pty Ltd v Huajun Investments Pty Ltd, the judgment treated the application materials as relevant to identifying both the development and the land on which it would occur. The key lock box and the proposed movement of the flood-warning sensor indicated works on common property beyond Lot 3. The owners corporation's consent had not been provided. The Commissioner treated that consent as essential to the valid exercise of the power to grant consent.
On the merits, the Commissioner considered the B2 zone objectives and accepted the Council planner's assessment. The proposal would displace a commercial use in a local centre, with no evidence that a stand-alone serviced apartment would generate employment comparable to larger serviced-apartment developments. The Commissioner found the proposal generally inconsistent with the majority of the zone objectives. The public-interest assessment reached a related conclusion: occupying a vacant tenancy was not, by itself, sufficient justification for changing a ground-floor commercial use to a serviced apartment when other permissible commercial uses were more consistent with the zone objectives.
Before and after state of the law
This judgment applies provisions and principles identified in its own text. It should not be read as announcing a comprehensive rule about every serviced apartment or every strata development application.
For flood planning, the decision illustrates the practical effect of a consent provision framed as a required state of satisfaction. The Commissioner treated cl 6.3(3) as preventing consent unless the necessary satisfaction could be reached. The judgment's application of that requirement turned on the unit's floor level, the proposed vertical evacuation approach, the differences between commercial and overnight occupants, and the lack of an adequately specified flood door proposal. The decision does not state that every change from commercial use to accommodation will necessarily fail the flood test.
For zone objectives, the Commissioner expressly rejected the idea that every objective had to be satisfied for a use to be permissible. But the objectives remained relevant to the planning merits. The decision therefore separates permissibility from the question whether an otherwise permissible proposal should receive consent after the objectives are considered.
For owners consent, the judgment applied the proposition that the land and development proposed must be identified from the application form and its supporting material. Its focus was practical: documents describing works beyond the unit, including a lock box and sensor relocation, brought common property into the application. The Commissioner also applied Platford v van Veenendaal in rejecting the proposition that a condition requiring works could simply transform works outside the application into development for which consent had been sought.
The judgment does not purport to change the cited authorities. It applies them to the material before the Court and explains why the particular proposal could not be approved. The text does not provide a general ruling on every possible use of s 4.17(1)(f), nor does it decide that an appropriately documented proposal with the relevant consent would necessarily satisfy the flood-planning test.
Key passages with plain-English translation
The Commissioner stated that it was not necessary for the proposal to meet every zone objective to be permissible. In plain English, a proposal is not automatically excluded just because it does not achieve each stated planning objective. However, the objectives still have to be considered, and the Commissioner found this proposal generally inconsistent with them.
The flood finding focused on the missing and incomplete mitigation measure: the flood door was not part of the proposal, was not covered by owners consent, and lacked sufficient information for assessment. In plain English, the Court could not assume that an idea raised during the hearing would make the application safe when the application did not include it and its details were inadequate.
The owners-consent finding was that the development sought affected common property not owned by the applicant. In plain English, the Court looked beyond the application form's description of the strata lot and examined the drawings, statement of environmental effects and proposed conditions. Those materials showed work beyond the unit, and the necessary consent was absent.
Finally, the Commissioner said the application was refused for failure to satisfy jurisdictional prerequisites and, alternatively, following a merits evaluation. In plain English, the decision did not rely on only one route to refusal. The Court concluded it lacked power to grant consent because threshold requirements were unmet, and also concluded that the planning merits did not support approval.
The judgment's paragraph numbering is not consistently reproduced in the supplied text. Its internal references include [14] for the zone-objectives discussion, [36] for the flood findings, and [56] for the owners-consent findings. The pinpoint references to [17], [91]-[95] and [161] in the reasons are references to passages in cited cases, not paragraph numbers of this judgment.
What fact patterns trigger this precedent
The decision is most closely relevant to applications where the proposed use puts occupants in a flood-affected ground-floor space, particularly where the space is below the stated flood planning level and the application relies on evacuation rather than raising floor levels. The specific concern here was a change from commercial occupation, where staff may be present during business hours, to overnight accommodation, where occupants may be asleep and less familiar with building procedures.
It is also relevant where the proposed flood mitigation is raised in submissions but does not form part of the application. The Commissioner was not prepared to treat the flood door as a complete solution when there were no adequate design details or maintenance arrangements before the Court. The decision highlights the distinction between evidence about a possible mitigation measure and an adequately described proposal that the consent authority can assess.
The owners-consent reasoning is relevant where an application is described as confined to one strata lot but its drawings, supporting documents or proposed conditions show work on common property. Here, the identified matters included a key lock box outside the unit and relocation of a flood sensor into an unspecified part of common property. The Commissioner also considered that the proposed sensor change would affect the whole property's warning system and management plan.
The zone-objectives reasoning is relevant to proposals for uses that are permissible with consent but may displace uses aligned with a local centre's function. The decision does not make serviced apartments impermissible in B2 zones. Rather, it shows that permissibility and merits are separate questions, and that a particular ground-floor proposal may still be refused after considering employment, retail activity, compatibility and the centre's role.
How later courts have treated it
The supplied judgment contains no later decisions discussing or applying Jetz Luxury Homes Pty Ltd v Inner West Council. No conclusion about subsequent judicial treatment can therefore be drawn from this material.
The judgment itself refers to earlier authorities. It applies Al Maha for the approach to identifying the land and development from the application and supporting documents, and for the significance of owner's consent. It applies Platford in addressing the limits of a condition requiring works that were not part of the development application. It considers Kavanagh in relation to inadequate flood-mitigation information. It also records the Council's reliance on Michael Brown and its distinction of Season Group, but the supplied reasons do not provide a detailed independent analysis of those decisions.
The discussion of Owners Strata Plan No 50411 v Cameron North Sydney Pty Ltd appears in the applicant's written position on when owners corporation consent is required. The Commissioner ultimately found that this application did involve common-property works, so the factual premise on which the applicant relied was not accepted.
These relationships describe only what the supplied judgment says. They are not a survey of later cases, and no claim is made here about how courts have treated the decision after 24 September 2020.
Still-open questions
The judgment does not resolve how a different flood-management proposal might fare if the development application itself included detailed plans, operational procedures and maintenance arrangements for a flood door or another protective measure. It decides that the material before the Court was insufficient, not that every possible flood door could not satisfy cl 6.3.
It also does not determine the precise effect of s 4.17(1)(f) in every setting involving work outside the applicant's land. The Commissioner considered the proposed condition and the authorities cited, but declined to use the power to make the proposed flood-door or lock-box additions. The judgment leaves open what may be possible on a materially different application, with suitable information and the required consent.
The public-interest finding was made without direct economic-impact evidence. The Commissioner relied on the planning assessment that the proposal would displace uses more consistent with the zone objectives and did not accept the applicant's assertion that the circumstances were sufficiently unique to prevent broader impacts if similar changes occurred. The decision does not specify what evidence would be needed to establish or rebut a local economic effect in another case.
The reasons also do not identify a detailed threshold for when a ground-floor serviced apartment would be consistent with B2 objectives. The result followed from the specific evidence about this stand-alone proposal, employment, retail opportunity, compatibility and local-centre function.
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Judgment (9 paragraphs)
[1]
Judgment
COMMISSIONER: This is Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application number D/2019/128 seeking development approval to change the use of an existing commercial unit to a serviced apartment (the Proposed Development) at unit 3/283 Parramatta Road, Leichhardt, legally described as Lot 3 in SP89564 (the Site).
Following a site inspection, and at the commencement of the hearing, the parties agreed that the issues remaining in dispute for the Court's assessment and determination were the following issues:
1. Consistency of the Proposed Development with the objectives of the B2 Local Centre Zone listed in the Land Use Table of the Leichhardt Local Environmental Plan 2013 (LLEP).
2. Whether the Court can be satisfied that flood planning is adequately addressed by the Proposed Development as required by cl 6.3 of the LLEP. The Applicant identifies this as the 'critical issue' and the Respondent similarly submits that this is the 'key issue'.
3. Owner's consent to the Proposed Development and in particular whether the Proposed Development seeks development approval for any development not wholly contained within the strata unit. The Respondent argues that any works within the common property will require owner's consent from the Body Corporate whereas the Applicant relies on s 4.17(1)(f) of the EPA Act regarding the power of the Court to impose conditions on other land.
4. Whether the change of use from commercial premises to a serviced apartment in this B2 Local Centre zone is in the public interest, that is, if replicated on other ground floor areas of the local centre, it will have a significant impact on the local economy and local employment.
The Court has the benefit of the following Joint Expert Reports:
1. Sean Howie, Development Engineer for the Respondent and Anthony Barthelmess, Managing Director of Rienco Consulting for the Applicant (the Hydraulic Engineers) met on 15 June 2020 and prepared a Joint Expert Report filed 19 June 2020 (Exhibit 2) (Flood Expert Report).
2. Eric Wong, Planner for the Respondent and Andrew Minto, Planner for the Applicant (the Planners) met on 27 and 28 July 2020 and prepared a Joint Expert Report filed 28 July 2020 (Exhibit 3) (Planning Expert Report).
Only the Hydraulic Engineers were cross examined during the proceedings and the parties made oral submissions.
I note that some of the issues listed at par [2] are related to matters of the Court's jurisdiction to grant the consent sought and directly impacts the power and function of the Court pursuant to s 4.16 of the EPA Act whereas other issues are part of the merit assessment pursuant to s 4.15 of the EPA Act.
[2]
Is the proposed development consistent with the objectives of the B2 Local Centre zone?
There is no dispute that a serviced apartment is permissible in the B2 Local Centre zone and the Respondent drew the Court's attention to Land Use Table in the LLEP where "Tourist and visitor accommodation" is permitted with consent and then drew the Court's attention to the Dictionary of the LLEP which defines serviced apartment as a type or subset of "Tourist and visitor accommodation".
The issue in dispute is whether the Proposed Development is consistent with the objectives of the B2 Local Centre zone in the Land Use Table and if so, whether the Court should refuse the application on that basis.
I note that the Statement of Environmental Effects prepared by Think Planners Pty Ltd dated 6 March 2019 (the SEE) at page 10 states that the Development Proposal "is consistent with the prescribed zone objectives" but does not go into any assessment or analysis. In the LLEP the objectives of the Zone B2 Local Centre are as follows:
1 Objectives of zone
• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To ensure that development is appropriately designed to minimise amenity impacts.
• To allow appropriate residential uses to support the vitality of local centres.
• To ensure that uses support the viability of local centres.
• To provide a mixture of compatible land uses.
• To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres.
• To integrate suitable business, office, residential, retail and other development in accessible locations.
Clause 2.3(2) of the LLEP requires that the consent authority to have regard to the objectives for the zone when determining a development application. This clause requires the Court to undertake this consideration of the objectives as part of the evaluation or merit assessment of the Proposed Development as required in s 4.15 of the EPA Act.
The Applicant submits that the B2 Local Centre Zone has 9 separate objectives. The application of cl 2.3(2) of the LLEP does not mean that a development has to satisfy all 9 objectives as pleaded by the Respondent. Other than the first objective, the development is consistent with the other 8 (refer page 2, Statement of Facts And Contentions in Reply filed 10 December 2019, Exhibit B (the SOFAC in Reply)).
[3]
Can Flooding be adequately mitigated?
The Site is situated on land classified as a flood control lot and to use the language in the LLEP is part of land that is at or below the flood planning level (refer Flood Control Lot Map 3 at folio 251 of the Respondent's Bundle of Documents, Exhibit 4). Clause 6.3 LLEP is a jurisdictional prerequisite of which the Court must be satisfied. The issue for determination by the Court is whether flooding can be adequately mitigated as required by cl 6.3(3) of the LLEP which provides as follows:
6.3 (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development -
(a) is compatible with the flood hazard of the land, and
(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and
(c) incorporates appropriate measures to manage risk to life from flood, and
(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and
(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
The Respondent submits that there are three relevant criteria of cl 6.3(3) of LLEP, namely subclauses (a), (c) and (e), which are not satisfied and that as a result the Court as the consent authority on appeal, is prevented jurisdictionally from granting the approval sought for the Proposed Development. The Respondent relies on the decision of Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council (2018) 233 LGERA 170; [2020] NSWCA 137 and distinguishes the decisions relied on by the Applicant being Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354 (Season Group). The Respondent submits that Season Group is distinguishable as it relates to a different type of development (demolition, alterations and additions to existing building and construction of new commercial/residential development) whereas the Proposed Development is a change of use from existing ground floor commercial to a serviced apartment.
The Respondent's case is that the Proposed Development is not compatible with the flood hazard and that the change of use in effect increases the risk to life from flood and therefore does not incorporate appropriate measures to manage this increased risk. The Applicant's case in relation to managing the risk from flood is reliant on the evidence of Mr Barthelmess to the extent that Mr Barthelmess expresses an opinion that the change of use does not affect the flood risk and that there will be less people in a serviced apartment than could be accommodated in a commercial use and therefore the risk to life is reduced.
[4]
Mr Howie and Mr Barthelmess were cross examined and the documents referred to in their evidence include:
1. "Updated Flood Management Plan for Change of Use Proposal from an Existing Retail Unit to a Serviced Apartment (Tourist and Visitor Accommodation) at 283-285 Parramatta Road, Leichhardt NSW 2040) by ING Consulting Engineers Pty Ltd filed 17 June 2019 with the Class 1 Application, Exhibit A) (Flood Management Plan)
2. Flood Certificate
3. Floodplain Development Manual
4. Leichhardt Development Control Plan 2013 (DCP), Part E Sustainable Water and Risk Management
I firstly address the suggestion by Mr Barthelmess that although Unit 3 is below the FPL, "the higher order objectives of the DCP can still be met, by the provision of a flood barrier door forming the front door to Unit 3." (Flood Expert Report, p 2). A significant amount of time was spent in cross examination about the flood barrier door (the Flood Door) and whether such a Flood Door is or would be appropriate flood proofing for Unit 3 as a serviced apartment. There was much discussion as to the estimated levels of flood water that might enter Unit 3 and what role a Flood Door would play in eliminating flood risk to Unit 3. It is relevant to note that the Proposed Development relies on vertical evacuation in the event of a flood event as stated in the Flood Management Plan which goes further at Item 2 refer to Floor Level and states "Habitable floor levels to be equal to or greater than the 100 year ARI flood level plus freeboard"
The Flood Management Plan, forming part of the Proposed Development does not rely on any Flood Door or other flood proofing method. It was conceded by the Applicant in submissions and by Mr Barthelmess in cross examination that the Flood Door does not comprise part of the Proposed Development and I consider this issue not to be relevant or helpful to the issues for determination. I do address the Flood Door again throughout the judgment as both parties raise it again in relation to the issue of owner's consent submissions and again in closing submissions.
The fundamental concern is that Unit 3 is below the FPL and that the Floodplain Development Manual and the DCP both include controls which exclude habitable uses below the FPL. The Hydraulic Engineers did not agree that the "Unit's use as a serviced apartment exposes it to a flood risk that is greater than that of a commercial use." (Flood Expert Report, p 3).
[5]
Owners consent for works proposed on the common property owned by the strata owners corporation
The description of the Proposed Development is simply referred to by the Applicant as a change of use from commercial to serviced apartment and the formal particulars of the title shown on the development application is limited to unit 3. There is no description of any works proposed to take place within the common property of the Strata Plan 89564. However, the land on which the development is to be carried out is to be determined not only from the address and formal particulars of the title shown on the development application form but also from the documents that must accompany the development application. (Preston CJ at [91] in Al Maha). The evidence before the Court included the accompanying documents to the development application of the Proposed Development including the following:
1. Statement of Environmental Effects prepared by Think Planners Pty Ltd dated 6 March 2019 (SEE);
2. Drawing A3.01 Rev A filed on 17 June 2019 including a legend which identifies the 'change of use area' in yellow and the 'existing area to remain unchanged in grey;
3. Letter from Building Design & Technology Pty Ltd dated 3 April 2019 (filed 17 June 2019 with the Class 1 Application, Exhibit A) which states:
"Consent is provided from the owners of the strata plan"
1. Document titled "Body Corporate Consent not required to lodge Development Application Unit 3 283-285 Parramatta Road Leichhardt 2040 (Tab 6 of Exhibit 4 - Respondent's Bundle of documents) (the Body Corporate Consent Submission) which accompanied the development application and was under cover of the above letter from Building Design & Technology. The Body Corporate Consent Submission relies on the decision in Owners Strata Plan No 50411 v Cameron North Sydney Pty Ltd [2003] NSWCA 5 and states:
"The conclusion of the Court of Appeal was the Halpin had been incorrectly decided and that unless a development application proposes development on common property, the consent of the body corporate is not required. Hence, the owner of a strata lot that proposes development wholly within the boundaries of that lot is not required to obtain the consent of the body corporate to that application."
1. Agreed draft conditions of consent, (Exhibit 5) which includes the following relevant proposed conditions:
1. 7 "Works outside the property Boundary"; and
2. 18 "Flood Warning System"
[6]
Is the Proposed Development of a serviced apartment in the B2 Local Centre in the public interest?
The Respondent's case is that if the Proposed Development is replicated in other ground floor areas of the local centre, it would have a significant impact on the local economy and local employment.
Applicant in the SOFAC in Reply states that the facts and circumstances surrounding this application are sufficiently unique as to provide no precedent. No evidence of uniqueness and this argument is unable to be relied on to rebut the Respondent's case that "if replicated in other ground floor areas of the local centre, [the Proposed Development would] have a significant impact on the local economy and local employment."
Although there is no direct evidence of economic impact, Mr Wong relies on his conclusion above at par [12] that the Proposed Development does not achieve the objectives of the B2 Local Centre zone 'on balance' and that the change of use to a serviced apartment "displaces permissible uses that are consistent with the zone objectives" (Planning Expert Report, p 9).
Planning Expert Report considers this issue. Mr Minto relies on the change of use facilitating the "use of an existing vacant tenancy" and "will not result in any unreasonable impacts" (Planning Expert Report, p 8).
The Applicant's case is that in addition to the proposed service apartment constitute a business and is therefore generally consistent with the objectives of the B2 Local Centre zone, but that the Proposed Development will result in a reduction of flood risk for the reasons given by Mr Barthelmess in the Flood Expert Report and in oral evidence, and therefore the Proposed Development poses an opportunity to reduce the risk which is 'clearly in the public interest."
[7]
Decision/Findings
In accordance with cl 2.3 of the LLEP the requirement to consider the zone objectives is satisfied, (refer par [14] above). I have considered the evidence of the Planners and the oral submissions of the parties. On balance, I accept the Respondent's submissions and as a matter of discretion, I find that the Proposed Development is sufficiently inconsistent with the zone objectives of the B2 Local Centre zone to warrant refusal of the Proposed Development.
I have been required pursuant to cl 6.3 of the LLEP to consider a number of criteria and if unable to form a state of satisfaction I must refuse the Proposed Development. In relation to flood planning I find that the jurisdictional prerequisite of cl 6.3(3) of the LLEP is not satisfied. For the reasons set out in par [36] I am not satisfied that the Proposed Development is compatible with the flood hazard of the land in breach of cl 6.3(3)(a) LLEP and I am not satisfied that the Proposed Development incorporates appropriate measures to manage risk to life from flood as required by cl 6.3(3)(c) of the LLEP. As a result of not being satisfied with all the criteria in cl 6.3(3) of the LLEP I am therefore unable to grant consent to the Proposed Development.
For the reasons set out in par [56] I find that the Proposed Development lacks owner's consent insofar as works are proposed within the common property of Strata Plan 89564 and as this essential jurisdictional prerequisite not satisfied I do not have any power to grant the consent as sought.
Finally, regarding the Respondent's case that the Proposed Development is not in the public interest I note that the Proposed Development is sought within a business zone, and, on balance I find that it is not in public interest to have ground level serviced apartment. I do not accept that the filling of an existing commercial vacant tenancy is sufficient justification for a change of use from commercial to a serviced apartment. I accept that there are other commercial permissible uses which are on balance more consistent with the objectives of the B2 Local Centre zone than a serviced apartment.
Accordingly, the Proposed Development is refused pursuant to s 4.16(2) of the EPA Act for the reason that it fails to satisfy jurisdictional prerequisites regarding owners consent and flood planning (cl 6.3 LLEP) and in the event that I am in error in relation to the jurisdictional prerequisites, the Proposed Development is refused following an evaluation pursuant to s 4.15 of the EPA Act, on the basis of a merit assessment the Proposed Development is not on balance consistent with the objectives of the B2 Local Centre zone and it is not in the public interest to change the use from a ground floor commercial use to a stand along ground floor serviced apartment.
[8]
Orders
The Court orders that:
1. The appeal is dismissed.
2. The development application number D/2019/128 seeking development approval to change the use of an existing commercial unit to a serviced apartment at unit 3/283 Parramatta Road, Leichhardt and legally described at Lot 3 SP89564 is refused.
3. Exhibits are returned to the parties.
[9]
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: 24 September 2020
The appeal was dismissed. Development application D/2019/128 for the change of use to a serviced apartment was refused. Exhibits were ordered returned to the parties.
The Planning Experts considered this issue and each undertook an assessment and analysis of the zone objectives however I note that the Planning Experts did not agree on their respective conclusions. The Statement of Facts and Contentions filed 8 July 2019, Exhibit 1 (the SOFAC), particularises that the use of a single ground floor commercial unit as a serviced apartment "undermines the integrity and commercial function of the B2 Local Centre Zone" (refer to Contention 1, Particular b. in the SOFAC). Mr Minto is of the opinion that "in having regard to the objectives of the zone that the proposal does not need to achieve compliance with each and every objective." (Planning Expert Report, p 2). In any event Mr Minto undertakes an assessment of each of the above objectives and concludes that the Proposed Development is consistent with them and that the Proposed Development is therefore "worthy of the support of the Court" (Planning Expert Report, p 4).
Mr Wong similarly undertakes an assessment of each of the above zone objectives and disagrees with the conclusion of Mr Minto. Mr Wong concludes that "most of the objectives had not been achieved and on balance, the proposal had not achieved the objectives of B2-Local Centre Zoning." In essence, Mr Wong says at pp 5 to 6 of the Planning Report that in relation to a stand alone serviced apartment:
1. Providing income for the owner is not considered a sufficient reason to justify that the first objective is achieved;
2. There is no evidence that employment will be generated, unlike larger service apartment developments which provide a dedicated concierge area or cleaner rooms. The change of use from retail premises will result in both
1. a reduction of employment opportunities. (The Court notes Mr Barthelmess' evidence of an estimate of 6 to 8 people being able to be accommodated on the Site for office or retail/commercial use); and
2. a reduction of opportunity to provide the retailing of goods or service that will attract people to the local centre.
1. Exposure to the rear lane with associated noise impacts does not minimise amenity impacts.
2. It is not compatible with the use of immediate surroundings.
3. It detracts from the role and function of a local centre.
"It could set a precedent for similar developments in the future that would have a negative impact of the functionality and identity of the subject local centre."
(Planning Expert Report, p 6)
I accept the Applicant's submission that cl 2.3 of the LLEP is not a jurisdictional prerequisite and that not all of the objectives need to be satisfied by the Proposed Development, however, I do not accept that the Proposed Development is consistent with all but 8 of the objectives and in that regard I accept and adopt the reasons provided by Mr Wong in the Planning Report and as summarised above to the effect that on balance the Proposed Development is not consistent with objectives listed in the Land Use Table of the LLEP regarding the B2 Local Centre zone.
Accordingly, the Court has satisfied the requirement of cl 2.3(2) of LLEP having given consideration as detailed above to the objectives of the B2 Local Centre zone. It is not necessary for the Proposed Development to achieve compliance with each objective or even be consistent with all objectives in order to render the Proposed Development permissible. I find that on balance, the Proposed Development is generally not consistent with the objectives of this particular business zone, namely the B2 Local Centre, and I adopt the reasons of Mr Wong in so far as the proposed change of use, on the ground floor, as a stand alone serviced apartment is on balance not consistent with the majority of the objectives of the B2 Local Centre zone.
The agreed relevant facts include the dimensions of the Site and surrounds as well as the agreed flood levels. As these are relevant to the proceedings, I list them as follows:
1. The Finished Floor Level (FFL) of Unit 3 is below the Flood Planning Level (FPL).
2. The finished floor level of Unit 3 is 23.08m AHD.
3. The 1% AEP flood level at the laneway to which the Unit 3 adjoins is 22.15m AHD.
4. The existing development (with habitable floors on the first level) satisfies the flood planning level being the 1% AEP flood level plus a freeboard of 500mm.
5. In the event of a flood, like almost every other site in the vicinity of Parramatta Road, vertical evacuation is proposed.
6. The finished floor level on the first floor above Unit 3 is 26.70m AHD.
7. There is a Flood Warning System installed within the building, specifically in the garage (not part of the Site) which consists of a sensor triggered alarm system where the sensor is set at 100mm above the 1 in 100 year floor level.
8. The agreed flood levels are listed in the Flood Expert Report, Exhibit 2 pp 1 and 2 based on the architectural plans and the Flood Certificate issued by Council and I set them out in the following table:
Unit 3 FFL RL23.08m AHD
100yr Flood Water Level (at Parramatta Road) RL23.45m AHD
FPL RL23.95m AHD
Probable Maximum Flood (PMF) RL24.3m AHD
Mr Barthelmess relies on an evaluation of flood risk as being "determined by the probability of a particular flood occurring, combined with the consequence of the flood occurring." (Flood Expert Report, p 3). In cross examination Mr Barthelmess expanded this evaluation by explaining that as the actual footprint of the building is not changing and the flood behaviour is therefore the same, the critical variable is the number of people. He estimates that in a commercial or retail setting there would be 6 or 8 people working within Unit 3 whereas in the proposed use of a serviced apartment there will be a maximum of two people and that logically leads to the conclusion that less people means less risk.
Mr Howie fundamentally disagreed with this evaluation of risk and it is his opinion that flood risk should be assessed by considering the exposure to flood and the vulnerability of the people. He said in cross examination that the occupants of a commercial unit (staff) are different to the occupants of a services apartment who have different vulnerabilities. He explained that risk is a function to vulnerability and the Proposed Development would result in people using the Site in different ways including sleeping over night. Mr Howie refers to the increased vulnerability of occupants in a serviced apartment who, unlike staff, are not beneficiaries of work place duty of care (he referred to fire wardens and other compliance activities required of a work place) as opposed to being self service and reliance being place entirely on them to read the flood evacuation instructions, and the added vulnerability of the fact that a flood could occur while the occupants of a serviced apartment were asleep.
I note that Mr Barthelmess, in response confirmed his view that you need to look at the number of people not their vulnerability.
I accept Mr Howie's assessment of risk for the purpose of cl 6.3(3) of the LLEP and my reason is that the Floodplain Development Manual and the DCP both distinguish between commercial and habitable spaces, floors or rooms.
In particular, I note that in relation to the DCP at Part E1.3 Hazard Management, the Applicant relies on the provision of Control C2 for Single Dwelling Residential or Dual Occupancy Development which permits the floor level to be below the Flood Planning Level in certain circumstances and the Applicant referred the Court to subclause C2(g) which requires satisfactory flood proofing to the Flood Planning Level. As referenced above the finished floor level of Unit 3 is 23.08m AHD which is below the Flood Planning Level (or FPL) of 23.95.
I do not accept the argument of the Applicant to the effect that subclause C2(g) is applicable to the Proposed Development because this control in the DCP relates to alterations and additions to existing residential dwelling as opposed the Proposed Development which seeks approval to a change of use from commercial to serviced apartment with no physical works being proposed (apart from the installation of key lock box on the outside of Unit 3 and the relocation of the Flood Warning System). That is, the Proposed Development does not consist of alterations and additions and is neither a single dwelling nor a dual occupancy development. The Respondent submits that these provisions should be given limited weight because of the change of use resulting in different occupants, different hours of use and different familiarity with flood risk and flood evacuation procedures.
The Respondent also referred the Court to Control C4 for Commercial, Industrial and Mixed Use Development which excludes residential components from any floor levels being below the FPL by stating:
"All residential components and evacuation routes servicing any residential components must be above the Flood Planning Level."
The Applicant referred the Court to s 4.15(3A) EPA Act for the proposition that the strict non-compliance with the DCP controls should be assessed flexibly on the basis that the Proposed Development complies with the relevant objectives. I have already referred to Mr Barthelmess' reference to the DCP and his proposal that the higher order objectives of the DCP can be met with the Flood Door. Accordingly, I do not accept the submission that s 4.15(3A) of the EPA Act allows me to be sufficiently flexible in relation to this Proposed Development because a Flood Door is not part of the Proposed Development, the Flood Management Plan relies on vertical evaluation in a flood event and the FFL of Unit 3 is below the FPL.
The Applicant summarised the evidence of Mr Barthelmess in closing submissions and referred again to the Flood Door proposing that notwithstanding that the Flood Door is not part of the development application the Court, if content with the evidence of Mr Barthelmess can grant consent and pursuant to s 4.17(1)(f) of the EPA Act could impose a condition of consent to the effect that the applicant is to install and floor door to unit 3 and impose a maintenance regime.
Further, and perhaps more importantly, the Flood Door would be installed outside of the limitations of the Site within the strata and there is no evidence of owner's consent from the Strata Owner's Corporation. I deal with this again below when I consider the issue of owners consent.
The Respondent submits that any condition imposed by the Court for the installation of a Flood Door would not satisfy cl 6.3 of the LLEP as a matter of law. The development must be the proposed development as to any work on other land - refer Platford v van Veenendaal (2018) 229 LGERA 101; [2018] NSWLEC 27 (Platford) at [17] where Preston CJ says as follows:
"[17] The maintenance of the existing sea wall could include the carrying out of works on the land. The Council had power under s 80A(1)(f) to require the carrying out of such maintenance works. The imposition of a condition requiring the carrying out of works does not involve the grant of consent to the carrying out of the works, notwithstanding that the carrying out of works is development as defined. This is because the grant of development consent entitles the holder of the consent to carry out the development approved by the consent but does not require the carrying out of that development. A condition requiring the carrying out of works is different; the works must be carried out if the holder of the consent elects to carry out the development approved by the consent. The development must be carried out in accordance with the consent (see s 76A(1)(b)) and this includes any conditions of the consent. The development for which consent has been granted, however, remains that which was sought in the development application. It does not extend to the carrying out of any works required by a condition of the consent imposed under s 80A(1)(f) of the EPA Act."
The Respondent goes on to submit further that on the basis of merit assessment, there is a lack of documentation in order to allow the Court to adequately assess the proposal - refer to Kavanagh v Hawkesbury City Council [2020] NSWLEC 1003 at [31]-[32] where Chilcott C dealt with flood liable land and insufficient information to assess a particular flood mitigation proposal and says:
"[31] Having considered the evidence of the experts, I am not satisfied that the Applicant's proposals for evacuation of occupants from the Proposed Development during a 1 in 100 ARI flood event are such that that the risk to life from such a flood would be adequately managed, as required under cl 6.43(3)(c) of HLEP, because:
(1) I accept the uncontested expert evidence of Dr Martens that
(a) the Applicant has not provided a design for his proposed flood alarm;
(b) to assess whether a flood alarm would work on the Subject Site it would be necessary to examine the design of the proposed alarm;
(c) in the absence of a design for the proposed flood alarm, and given the nature of the Subject Site, it is not possible to establish whether the Applicant's proposed alarm would work.
[32] Based on the evidence above at [31(1)], I conclude that it is not possible to be satisfied that the risk to life from a flood would be adequately managed, as required under cl 6.3(3)(c) of HLEP."
I accept the Respondent's submission and agree that there are no particulars or specifications before the Court for consideration as to the Flood Door or the terms of any maintenance regime for the Flood Door. I accept that there is insufficient information available to the Court to impose any such condition in any satisfactory manner as proposed by the Applicant regarding the Flood Door as a means to satisfy cl 6.3 of the LLEP.
It is my view that the Proposed Development involves a fundamental change of use which if approved would convert the ground floor of Unit 3 to habitable space in breach of a number of controls in the DCP. I find that the flood risk is increased and the proposal by the Applicant to address the risk, namely the Flood Door, is not part of the Proposed Development, is not privy to owner's consent of the Body Corporate and insufficient information is provided to allow consideration of this flood proof method. For these reasons, I am not satisfied that the Proposed Development is compatible with the flood hazard of the land in breach of cl 6.3(3)(a) LLEP and I am not satisfied that the Proposed Development incorporates appropriate measures to manage risk to life from flood as required by cl 6.3(3)(c) of the LLEP.
These documents together form the development application before the court which is consistent with Preston CJ in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA [2018] NSWCA 245 (Al Maha) when he said at [93]-[94]:
"[93] These accompanying documents describe the development to be carried out and the land on which the development is to be carried out.
[94] If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners - Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]."
The giving of owner's consent as required by cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation), to the making of a development application with respect to the owner's land which is the subject of proposed works in accordance with that development application is "an essential prerequisite to, and part of the process of, a consent authority's determination of the application." (refer [95] Al Maha)
The Statement of Facts and Contentions filed by the Respondent on 8 July 2019, Exhibit 1 (SOFAC) includes a simple contention that:
"3. LACK OF OWNERS CONSENT FROM THE STRATA
The proposal lacks owner's consent of the Body Corporate."
This contention is particularised as follows:
"a. The proposed development impacts the use of the common areas of the building by its nature as persons using the serviced apartment will require the use of the common property of the building."
The Statement of Facts and Contentions in Reply filed 10 December 2019 (Exhibit B) (SOFAC in Reply) responds to the above contention as follows:
"3. LACK OF OWNERS CONSENT FROM THE STRATA
There is no development proposed on common property. In accordance with the New South Wales Court of Appeal decision of Owners Strata Plan No 50411 & Ors v Cameron North Sydney Pty Ltd [2003] NSWCA 5, the consent of the owners' corporation is not required."
The Court was advised that on 7 August 2020 the Respondent wrote to the Applicant and alerted the Applicant that the proposed installation key lock box on the outside of Unit 3 was a concern directly related to this contention. The SOFAC was not amended by the Respondent.
I have reviewed the Planners Report and note that in relation to this contention they agreed at p 7 that "this is a matter for submissions by the legal representatives."
Having reviewed the evidence before the Court I am required to ask the question What is the land on which the development is to be carried out? At [91] in the decision of Al Maha, Preston CJ said:
"[91] The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application."
I find that there are at least two and possibly three aspects of the Proposed Development which seek consent for works to be undertaken on land outside the formal particulars of the title shown on the development application. The formal particulars of the title shown on the development application are Lot 3 SP89564, or Suite 3 283-285 Parramatta Road Leichhardt (Unit 3). The works proposed outside of Unit 3 are the following works of the Proposed Development that are sought to take place within the common property for which I list the documents which accompany the development application:
1. Key lock box installation
1. The SEE makes numerous references to the proposed key lock box including in the Executive summary, at page 7 and at page 10. In the Executive Summary and again on page 7 under the heading "Description of Proposal", the SEE states:
"There are no physical building works […]. A key coded lock box will be installed in proximity to the access door to enable visitors to obtain the keys to the premises."
1. Annotated "KEY LOCK BOX" and shaded yellow on Drawing A3.01 Rev A
1. Flood Warning System (trigger sensor) currently in garage but recommended by both experts to be relocated somewhere within the common area.
1. Agreed proposed Consent condition 18.
1. Flood Door: There was significant time spent during the hearing regarding a suggestion by Mr Barthelmess that the installation of a Flood Door
In relation to the Flood Warning System, I note that Mr Howie in the Flood Experts Report, pg 9 states:
"SH notes AB comment that the trigger sensor for flood water needs to be relocated from the garage dump area to the front hallway of the building.
SH considers [relocation of the trigger sensor] is required regardless of the proposed development and if the development should be approved should be addressed by a condition of consent.
However in this regard SH notes that this does not form part of the proposal and expects it will require owners consent."
Moving the sensor trigger is expressly addressed in the agreed draft conditions of consent (Exhibit 5) at condition number 18 which provides for the following:
"18. Flood Warning System
Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must be provided with Certification by a qualified practising Civil Engineer that a Flood Warning System has been installed within the property at the Parramatta Road frontage of the site and the system has been commissioned, tested and is operational and the system provides flood warning to all components of the property of 283 Parramatta Road and the existing Flood Risk Management Plan for the whole property has been updated and amended to reflect the changes. [emphasis added]"
The effect of including this consent condition by agreement between the parties, incorporating a flood mitigation measure identified and agreed as otherwise being desirable between the Hydraulic Engineers in the Flood Experts Report at pg 9, will in essence will result in an amendment to the development application, refer to [161] Al Maha:
"[161] The further amended development was also described in the conditions of consent that were attached to the s 34 agreement. These conditions of consent reflect the parties' agreement as to the development for which consent was sought and how and when that development is to be carried out."
The answer to this question is potentially fatal to the Proposed Development as it is a jurisdictional prerequisite, namely, without owner's consent development consent cannot be granted Preston CJ in Al Maha puts it as follows at [174]:
"[174] … Owner's consent was a jurisdictional prerequisite to the valid exercise of the power to grant consent to the further amended development application. Owner's consent is not merely a requirement to be fulfilled before work is undertaken on any affected land. The Commissioner's decision to grant consent was therefore outside power."
The Applicant in response to the Respondent's reference to the lock box email of 7 August 2020 submits that the Court can consider the installation of the key lock box as de minimus, and not requiring consent, or in the alternative the Court can take an 'amber light approach' and grant the Applicant leave to amend the development application.
The Applicant, in oral closing submissions, explained the purpose of proposed consent condition 7 which provides:
"7. Works Outside the Property Boundary
To the extent that a condition of this consent authorises any works outside the boundary to Lot 3 SP 89564, that condition is imposed in accordance with s4.17(1)(f) of the Environmental Planning and Assessment Act 1979."
The Applicant also submits that pursuant to s 4.17(1)(f) of the EPA Act the Court has the power to do the following in these proceedings:
1. modify the application and delete the lock box and require something else to be done. "If the Court were so minded this would resolve contention 3.";
2. consent to the relocation of the Flood Warning System from its existing position to an area within the common property (as set out in the proposed agreed consent condition 18); and/or
3. modify the application and add a condition requiring the installation of a Flood Door to Unit 3.
1. I note that the Respondent does not agree with this last proposition on the basis that there is insufficient information before the Court on Appeal to properly assess and condition any Flood Door. The Respondent relies on Platford at [17] to support the argument that the Flood Door is not part of the development application.
I accept and agree with the Respondent's position in relation to the Flood Door. I also find that proposed agreed consent condition 7 seeking to rely on s 4.17(1)(f) is not sufficient to empower the Court to grant consent where owner's consent is not provided nor does it permit the Court to go beyond the development sought in the development application, in accordance with Preston CJ's decision in Platford at [17] which I set out in full earlier at par [33] and in order to understand the context it should be noted that references to s 80A(1)(f) are references to the previously numbered version of s 4.17(1)(f).
I do not accept that the mere inclusion of proposed agreed consent condition 7 empowers the Court to do the things submitted by the Applicant listed above at par [53(1)] and par [53(3)] as these do not form part of the development application. In relation to the relocation of the Flood Warning System at par [53(2)] I have found that the inclusion of proposed agreed consent condition 18 effectively amends the development application so there may be some limited potential for s 4.17(1)(f) of the EPA Act however I am not prepared to do so on the basis that this Flood Warning System relocation within the common property is significant not just for Unit 3 and the Proposed Development but will modify the warning system to all components of the property of 283 Parramatta Road and will require an update to the existing Flood Risk Management Plan for the whole property. The Body Corporate has not been notified or consulted regarding such a significant change to a component of the whole building regarding flood planning.
I find that the land on which consent is sought for development is to be carried out includes the common property of Strata Plan 89564 which is not owned by the Applicant. The Proposed Development includes relocation of the Flood Warning System to an unspecified area within the common property and the installation of a key lock box outside of the strata lot owned by the Applicant. The representation in the letter from Building Design & Technology Pty Ltd dated 3 April 2019 is a misrepresentation and the Body Corporate Consent Submission is insufficient and inaccurate as the Proposed Development does include works that are not 'wholly within the boundaries of that [strata] lot', and as a result consent of the body corporate is in fact required for the Proposed Development.
If the Court were minded to grant consent to the Proposed Development the lack of owner's consent from the Body Corporate of Strata Plan 89564, which is a jurisdictional prerequisite to the valid exercise of power, renders me, as presiding Commissioner, without power to grant the consent if I were so minded.