COMMISSIONER: This is an appeal filed on 20 October 2022 against the deemed refusal of Development Application DA/531/2021 (DA) by the City of Parramatta Council (Council) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
1. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
2. The statutory power or function to be exercised in determining the proceedings is s 4.16 of the EPA Act and ss 34(3) and 39(2) of the LEC Act.
3. The DA is for the demolition of existing structures, tree removal and the construction of a two (2) storey plus attic boarding house containing seventeen (17) boarding rooms with basement parking and associated landscaping works.
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 2 December 2021, and 4 and 18 February 2022. I presided over the conciliation conference.
On or after the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, and granting development consent to the DA subject to conditions of consent in Annexure A
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Background
The DA relates to 54 Adderton Road, Telopea being the whole of the land in Lot 1001 in Deposited Plan 777077 (the Land). The Land has an area of 773.5m2, a front and rear boundary of 17m, and a south and north boundary of 45.5m. The Land has a slope from the rear boundary to the front boundary of 3.4m over a distance of 45.5m.
The Land currently has a single dwelling on it, as set out in the photograph below.
Figure 1: Aerial photograph with the Land outlined in red. Source: p 2 of the Statement of Facts and Contentions dated 8 November 2021.
The Land is located within the R3 Medium Density Residential zone and is bounded by properties zoned R3 to the East, south and north.
The area is characterised by single and double storey residential dwellings as well as dual occupancy and multi-dwelling housing development. Adjoining the site to the north and east are a two-storey multi-dwellings development, and two-storey dual occupancy development to the south.
The DA was lodged with Council on 21 June 2021.
Council advertised and notified the DA between 1 July and 22 July 2021. Council received 23 submissions and the issues raised by the objectors included increased density, family orientated area, over supply of housing, noise impacts, impact on housing prices, safety, potential for increased crime, number of occupants, unsuitable location, traffic, parking, privacy, bulk and scale, waste and solar access.
On 21 September 2021, the Applicant appealed to the Court in accordance with the time provisions in s 8.10(1)(a) of the EPA Act.
On 22 October 2021, Council issued a Notice of Determination refusing the DA pursuant to s 4.16(1)(b) of the EPA Act.
On 22 February 2021, the Applicant filed Amended Plans. The Council consented to the filing of the Amended Plan and in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Amended Plans were uploaded to the NSW Planning portal, reference PAN-108960, and referenced in Annexure A. The amendments to the DA plans were as follows:
1. The overall building bulk has been reduced via the removal of one boarding room;
2. Relocation of room within the attic to the lower floors; and
3. Modifying the driveway to alter the angle of the widening splay, to provide a give-way sign at the bottom of the ramp and to relocate the waiting bay at the bottom of the ramp. Indications of visual splays on both sides of the driveway entry have also been provided.
4. The amendments reduced the bulk and height of the roof form, which has in turn reduced the overshadowing impact on the neighbouring properties.
5. The floor space ratio (FSR) was reduced so that it complied with the FSR control of 0.6:1 and the height of buildings control of 11m in Parramatta Local Environmental Plan 2011 (Parramatta LEP2011).
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act, and ss 34(3) and 39(2) of the LEC Act to uphold the appeal and grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out below, and explained how they had been satisfied:
1. The Land is zoned R3 Medium Density Residential, pursuant to Parramatta LEP2011, in which boarding houses are permitted with consent.
2. The proposed development complies with the applicable development standards in Parramatta LEP2011, including compliance with the 11m height limit and the prescribed floor ratio of 0.6:1.
3. The driveway to the development has been modified on the plans to:
1. Alter the angle of the widening splay;
2. Provide a give-way sign at the bottom of the ramp;
3. To relocate the waiting bay at the bottom of the ramp;
4. Indications of visual splays on both sides of the driveway entry.
1. PDC Consultants have provided an updated Traffic and Parking Statement dated 23 December 2021, and the parties are satisfied that the traffic engineering matters have been resolved.
2. All matters relating to accessibility have been addressed in the amended plans, which provide for:
1. An accessible-compliant ramp to the entry-way;
2. Accessible access to the front of every boarding room and communal space; and
3. Revised Design Documentation dated 16 December 2021 by Ergon Consulting, access/design/construct consultants.
1. The extent of the basement wall has been reduced to both the front and rear of the development which has enabled additional deep soil plantings and removed any impact on Tree No. 1. An Amended Arboricultural Impact Assessment s34 by Lee Hancock, consulting arborist dated 20 December 2021 has been filed.
2. A longitudinal section drawing through the driveway to the centre line of Adderton Road was prepared by NY Civil Engineering, Plan D1 Rev A dated 23 January 2021, job reference E210504. The civil design of the ramp to the basement of the development was undertaken using the flood information report provided to the Applicant by the Council's Catchment Department. The longitunal section demonstrates that there are no flood issues and that there will be no scraping of vehicles entering and exiting the driveway.
3. The proposed development complies with the applicable development standards in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and the application of State Environmental Planning Policy - Housing 2021 (Housing SEPP).
4. The Council considered whether re-notification of the amended application was required. In light of the fact that the amendments do not create new or additional impacts on the surrounding properties, the Council exercised its discretion not to notify the amended application.
5. As required by cl 7(1) of the State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55), the parties considered the history of the use of the Land which reveals it has only been used for residential purposes and concluded that the Land is suitable for a residential development.
6. The consent authority is required to have regard to submissions made by members of the public in respect of an application pursuant to s 4.15(1)(d) of the EPA Act. The Council has considered submissions received regarding the DA, and has concluded that, based upon the amended plans and reports, the DA is appropriate for approval.
7. Clause 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate. The DA is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. The Amended DA is accompanied by the BASIX Certificate No. 1270911M_03 dated 23 December 2021.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act for the following reasons: Where I refer to individual reports in this judgment, I note the parties have agreed to open the reports so that they may be relied upon for the purpose of finalising these proceedings.
1. The amended DA seeks approval for a boarding house with 7 single rooms, 8 double rooms, 1 manager's room, and 2 communal rooms.
2. At the time the DA was lodged with Council on 21 June 2021, the environmental instruments which applied to the land were relevantly:
1. EPA Act, s 4.15(1);
2. Parramatta LEP2011;
3. SEPP ARH;
4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP);
5. SEPP 55.
1. At the date of the s 34(1) conciliation conference the following applied:
1. All of the above listed in par (2);
2. Housing SEPP.
1. As a result of the General Savings provision in Sch 7 cl 2 of the Housing SEPP, I consider that the SEPP ARH prevails, and that the Housing SEPP should be considered certain and imminent (Tamvakeras v Inner West Council [2022] NSWLEC 1140, [20]-[38]. In relation to SEPP ARH, the provisions to be applied are those relating to boarding houses; and in relation to the Housing SEPP, the co-living provisions.
2. In relation to SEPP ARH:
1. The DA complies with cl 26: boarding houses are permissible with Zone R3 - Medium Density Residential;
2. The DA complies with cll 27 and 28 as the DA is permissible under SEPP ARH and Parramatta LEP2011.
3. The DA complies with cl 29(1)(c) as it complies with the FSR control in Parramatta LEP2011 of 0.6:1, so the bonus FSR provided in subcl (c) is not required.
4. The DA complies with cl 29(2)(a) as it complies with the height control in Parramatta LEP2011 - in zone R3 Medium Density Residential - at a height of 11m.
5. The DA complies with cl 29(2)(b) as the landscape in the front setback is compatible with the streetscape in which the building is located - reference Plan 003 Rev 03: Site Plan by Texco Design, and Landscape Plan 2 dated December 21 by Conzept Landscape Architects.
6. The DA complies with cl 29(2)(c) as both communal rooms have solar access - reference Plan 008 Rev 03 by Texco Design.
7. The DA complies with cl 29(2)(d) in relation to private open space for the boarding house lodgers and private open space to the manager's room - reference Plan 014 Rev 02 Cut and Fill Diagram by Texco Design.
8. In relation to cl 29(2)(e) - carparking spaces, there are 8 carparking spaces, 4 bicycle spaces, 4 motorcycle spaces, 1 accessible space and 1 shared space. The DA complies with this provision.
9. The areas of the single and double boarding rooms comply with cl 29(2)(f), and each have private facilities in accordance with cl 29(3).
10. I am satisfied that the DA complies with the provisions in cl 30(1) as it provides 2 communal rooms, no boarding room has a gross floor area of more than 25m2, no room is to be occupied by more than 2 lodgers, the rooms are designated single or double, each boarding room has adequate bathroom and kitchen facilities, and there is a separate room for the manager. Further, s 30(1)(h) requires 3 motorcycle spaces and 3 bicycle spaces whereas the DA provides for 4 motorcycle spaces and 4 bicycle spaces.
11. I am satisfied that the design of the DA is compatible with the character of the local area pursuant to cl 30A of SEPP ARH for the following reasons:
1. Plan 006 Rev 03 by Texco Design gives a street analysis, and the DA sits comfortably between 56, 52A and 52 Adderton Road, Telopea.
2. The Shadow Diagrams, Plan 009 Rev 03 by Texco Designs reveals that there is 3 hours of sunlight to 52A Adderton Road at the winter solstice;
3. The DA is compatible with the streetscape in relation to landscaping as can be seen from Plan 016 Rev 02 and Plan 102 Rev 3, both by Texco Design.
4. The DA is also in alignment with the adjoining houses - Plan 016 Rev 2 by Texco Design.
5. The DA complies with Council's FSR (Council FSR Map showing FSR 0.6:1) and height controls (Council Height Control Map showing 11m) and is consistent with the character with the zone R3 Medium Density Residential within the local area.
6. The scale of the proposal, coupled with its height, setbacks, materials and finishes, as well as the roof form provide for an amended proposal which will sit comfortably within its visual context, and will be compatible with the character of the local area.
1. I have considered the application of the Housing SEPP as certain and imminent, and consider that the DA is capable of approval for the following reasons:
1. Co-living dwellings are defined under the Standard Instrument as "residential" (Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021. The DA is permissible with consent in the Zone R3 - medium density residential.
2. The DA complies with the controls in cl 68 as follows:
1. It has a compliant FSR;
2. It has 114.17m2 of communal living areas;
3. It has a large area of communal open space (Landscape Plan K.Z Dec 21 by Conzept Landscape Architects);
1. The DA complies with the requirements set out in cl 69(1) in relation to size of room; the minimum lot size, the workspace for the manager, it has adequate kitchens and bathrooms for each boarding room, and each private room will be used by no more than 2 occupants.
2. The DA complies with the requirements of cl 69(2) except for the number of parking spaces in relation to bicycles (15 bicycle spaces - whereas it appears 4 have been provided unless future provision is made to stack them - Plan 101 Rev 03 Texco Design). The lack of bicycle spaces is not such as to warrant a refusal of consent. Importantly, the design of the building (as detailed under the SEPP ARH above) is compatible with the desirable elements of the character of the local area.
3. The DA complies with cl 70 in that no subdivision is proposed.
4. It relation to landscaping under Parramatta LEP2011, Council is satisfied that the DA complies with SEPP ARH and its Parramatta LEP2011.
5. In relation to cl 69 of the Housing SEPP, the DA satisfies this clause as follows:
1. Clause 69(1)(a) - FSR. The FSR is compliant with the Council control and does not require the available 10% increase.
2. Clause 69(1)(c) as it has 40m2 communal living space.
3. It exceeds the requirement in cl 69(1)(d) as it has 57m2 outside the ground floor's communal area, plus the rear communal landscaping area, and either side of the building footprint (Plan 104 Rev 03 by Texco Design);
4. It complies with cl 69(1)(e) in relation to the carparking requirement (Plan 101 Rev 03 by Texco Design).
1. In considering the application of the Housing SEPP, I have taken into account the Department of Planning, Industry and Environment's 'Explanation of Intended Effect for a new Housing Diversity' SEPP dated July 2020 (EIE). Under the heading of 'Key Components of the new Housing Diversity SEPP, the EIE states, inter alia -
"It is proposed that the new SEPP will introduce definition and planning provisions for three new types of housing, being:
build-to-rent housing;
purpose built student housing; and
co-living
This will provide new opportunities for institutional investment in residential development in NSW, creating jobs in planning, construction, and on-going management."
1. In EIE, under the heading "Co-living Introduction" it states:
"As with student housing, the boarding house provisions of the ARHSEPP are currently being used to develop co-living developments, otherwise known as 'new generation' boarding house. These are developments that share many features with traditional boarding houses, such as small private rooms for one or two people and access to communal living areas and other facilities. However, new generation boarding rooms are typically self-contained, with private bathroom and kitchenette facilities. The proposed introduction of an affordability requirement for boarding house development as set out above in this EIE would mean that this type of housing is no longer facilitated by the planning system.
Evidence suggests that there is demand for this type of small and self-contained dwelling - particularly when located in close proximity to reliable public transport and services. The demand for co-living is driven by affordability issues and growth in single person households. The demand is also driven by changing preferences, with many people will to trade size of living spaces for access to desirable locations."
1. The DA is a 'new generation' boarding house (now co-living) development which meets the intent of the Housing SEPP provisions.
1. In relation to SEPP 55: pursuant to cl 7(1), the consent authority must not grant consent to development unless it has considered whether the Land is contaminated, or if it is potentially contaminated, whether after remediation it will be fit for the purpose of residential use under the DA. The parties agree that the history of the use of the Land is residential. I accept their advice and find that the Land is suitable for its residential purpose pursuant to SEPP No. 55.
2. In relation to the BASIX SEPP: pursuant to cl 3(1) of the EPA Regulation, the DA is a BASIX affected development, containing a BASIC affecting building. The DA was accompanied by a BASIX certificate, and upon the Amended plans being accepted by Council, the Applicant provided an updated BASIX Certificate No. 1270911M_03 dated 23 December 2021. The requirement for a BASIX certificate has been met.
3. In relation to Parramatta LEP2011, the DA complies with the relevant development standards as follows:
1. The Land is zoned R3 - Medium Density Residential and the DA is able to be approved subject to the grant of consent.
2. The DA is consistent with the objectives for development within the R3 zone:
1. To provide the housing needs of the community;
2. To provide a variety of housing types
1. Clause 4.3: Height of Buildings: the Land is located within the Building Height Area "L" and therefore subject to a maximum building height control of 11m. The DA meets this criteria.
2. Clause 4.4: FSR: the subject site is located within the "F" FSR zone and as such is subject to a maximum FSR of 0.6:1. The DA is compliant with this control.
3. Clause 5.10: Heritage Conservation: the Land is not a heritage item and is not located within a Heritage conservation Area, nor adjoin a heritage item. Clause 5.10 has no work to do.
4. There are no other development standards in the Parramatta LEP2011 relevant to the proposal.
1. In relation to s 4.15(d) of the EPA Act, I have considered the issues raised by the objectors, and agree with the parties that the amended plans and conditions of consent in Annexure A satisfy the issues raised by the objectors.
2. The conditions of consent in Annexure A are capable of consent in accordance with s 4.17 of the EPA Act.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I will grant consent subject to the conditions in Annexure A to the DA in accordance with ss 4.16(1)(a) of the EPA Act and ss 34(3)(a) and (b), and s 39(2) of the LEC Act.
The Court notes:
1. The Council has agreed to the Applicant's amended plans to DA/531/2021, and the amended plans have been uploaded to the NSW Planning Portal reference PAN-108960.
The Court Orders that:
1. The appeal is upheld;
2. Consent is granted to amended Development Application DA/531/2021 on Lot 1001 Deposited Plan 777077 known as 54 Adderton Road, Telopea for a boarding house containing 15 boarding rooms, 1 manager's room, two communal rooms, 8 car parking spaces, 4 motorcycle spaces, subject to the conditions set out in Annexure A.
3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant has agreed to pay the Respondent's costs thrown away in respect of the amended plans in the sum of $3,500 within 14 days of the date of the Orders in these proceedings.
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Acting Commissioner of the Court
(Annexure A) (495553, pdf)
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Decision last updated: 28 March 2022