Mackay v Newcastle City Council

Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; Hornsby Shire Council v Monk [2001] NSWLEC 248; South Sydney Municipal Council v James [1977] 35 LGRA 432; CASES CITED: Ashfield Municipal Council v Australian College of Physical Education Ltd [1992] 76 LGRA 151 ; Londish v Knox Grammar School [1997] 97 LGERA 1; Burwood Municipal Council v Aboriginal Hostels [1979] 39 LGERA 150 ; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

APPLICANT Mr M Fraser, barrister SOLICITORS Moray & Agnew

LEGAL REPRESENTATIVES: RESPONDENT Ms A Pearman, barrister SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11177 of 2007 Anthony Mackay v Newcastle City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Newcastle City Council (the council) of Development Application 06/1416 for alterations and additions to an existing dwelling at 135 University Drive, North Lambton (the site). The site and locality 2 The site is Lot 19 in DP 219717. It has a frontage of 19.6 m and a depth of 29.5 m giving a site area of 579.9 sq m. An existing 104 sq m brick and tiled roof dwelling and a single car garage are located on the site. The site contains are no significant trees.

3 The site is located opposite Newcastle University although the area surrounding the site is predominantly residential in character. The proposal 4 The proposal provides for alterations and additions to increase the size of the dwelling by extending the ground floor area towards the rear and constructing a first floor addition. The proposal will provide for 12 bedrooms consisting of 6 bedrooms with en suite facilities and 6 bedrooms with shared facilities. A laundry, kitchen, dining room, sitting room, living room, open patio areas and 4 bedrooms are provided on the ground floor and 8 bedrooms are provided on the first floor. Relevant planning controls 5 The site is within Zone 2(a) Residential under Newcastle Local Environmental Plan 2003 (LEP 2003). The development application form identifies the proposed use as "Residential". Dwelling houses are a permissible use within this zone. Boarding houses are prohibited within this zone. The categorisation of the use is a preliminary issue in the proceedings.

6 Clause 8 provides that regard must be given to the relevant aims and general objectives of the plan (cl 8(a)), the zone objectives (cl 8(b)) and any other relevant provision of the plan (cl 8(c)). Clause 37 of LEP 2005 provides the following relevant definitions: boarding house means a building let as lodgings or a hostel, but does not include a motel dwelling means a room or number or rooms occupied or used, or so constructed or adapted as to be capable of being used, as a separate domicile dwelling-house means a building or buildings containing one but not more than one dwelling 7 Newcastle Development Control Plan 2005 (DCP 2005) also applies in relation to the assessment process (cl 2.1.7(a) and (d)), 11 car parking (cl 4.1), compatibility with neighbourhood character (cl 5.1.2), open space (cl 5.1.3(b)), solar access (cl 5.1.5) and visual privacy (cl 5.1.6(a)).

8 Technical Manual Housing also applies. Clause 7 provides requirements for estimating development potential for urban housing.

9 Newcastle Urban Strategy (the Strategy) also applies through a reference to the Strategy in LEP 2005. The issues 10 The council filed an Amended Statement of Issues containing 4 issues. These can be grouped into the following main areas: 1) whether the proposed development is permissible (Issue 1), 2) whether the proposed development is out of character with residential development in the area through excess density, bulk and scale and lack of car parking (Issue 2). 3) the public interest (Issue 3) and objections received (Issue 4). Is the proposal permissible? 11 Mr Fraser, for the applicant, submits that it is the use of a dwelling as a boarding house that is the essence of the definition of a boarding house. The applicant is not applying for use of the proposed building as a boarding house but as a dwelling house. Like any other dwelling house it may be leased under the Residential Tenancies Act 1987, whether to students or otherwise. The most likely and anticipated outcome will be that the dwelling will be leased to one or more students who will conduct a share house as regularly occurs near universities and other institutions of advanced education.

12 Mr Fraser submits that past and prospective unlawful uses are irrelevant considerations for a consent authority (Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321). Also, the mere fact that the dwelling is capable of being used in an unlawful manner is irrelevant. It is the actual use that would make the unlawful activity (Hornsby Shire Council v Monk [2001] NSWLEC 248). While not considered necessary Mr Fraser submits that the applicant would be willing to accept a condition requiring that the dwelling not be used as a "boarding house". 13 Ms Pearman, for the council, submits that the building is to be used as a "boarding house". She does not rely on the building being used as "a hostel" but relies on that part of the definition of a "boarding house" that includes a "building let as lodgings". LEP 2005 does not define "lodgings" however in the Macquarie Concise Dictionary "lodgings" includes "a room or rooms hired for residence in another's house".

14 Further, and in relation to the contention that the building is a dwelling house, Ms Pearman submits that in South Sydney Municipal Council v James [1977] 35 LGRA 432, Reynolds JA addressed a similar situation and said (at 440):

In my opinion a building is used as a dwelling houses within the meaning of cl 23 if its use is such that it can be fairly said as a matter of fact that it is occupied in much the same way as it might be occupied by a family group in the ordinary way of life and that it is not a use and occupation more appropriately described in other categories of residential buildings. 15 Similar circumstances existed in Ashfield Municipal Council v Australian College of Physical Education Ltd [1992] 76 LGRA 151 where Pearlman CJ said (at 155): What has to be considered is the use and occupation of the premises on the facts adduced in evidence. When one considers the evidence that the premises are owned by the Respondent (which, of course, is not itself an occupant) who students apply to it for agreement to occupy a number room, for rent, with services provided, and with a sharing of common facilities in each house, it seems to me inescapable that what is more appropriate as described here is letting the houses as lodgings and not using them in the same way as a family group in the ordinary way of life. 16 In Londish v Knox Grammar School [1997] 97 LGERA 1, Stein JA agreed with the approach taken in Australian College of Physical Education Ltd by Pearlman CJ and said that the categorisation of the use must be based on the facts adduced in evidence.

17 Pearlman CJ distinguishes the decision by Samuels JA in Burwood Municipal Council v Aboriginal Hostels [1979] 39 LGERA 150 where His Honour found that it is sufficient if only one person uses a premises as a permanent premises and it is not relevant if other persons come and go from the premises. Her Honour found that the interpretation in Aboriginal Hostels "would lead to absurdities" in a town planning context if followed. Her Honour relies on the definition in James as a more useful guide and concludes that characterisation is one of fact. 18 I agree with Mr Fraser's submission that it is not appropriate to assume that the building will be used in an illegal manner however I do not accept that this is necessarily relevant in this case. To accept Mr Fraser's submission would be to accept that the building is a dwelling and that it would be used illegally as a boarding house. The fact that the application was made for "Residential" is irrelevant as the categorisation of the use is determined by the characteristics of the proposed use and as stated in James, is one of fact.

19 In this case, the building was never to be used as a dwelling house in the way described in James and Australian College of Physical Education in that it would not be occupied by a family group in the ordinary way of life. There was no suggestion that proposal was constructed for the use by a family. The intended purpose was specifically for lease under the Residential Tenancies Act 1987 to students or other occupiers. As I understand a lease under the Residential Tenancies Act 1987 does not preclude the sub leasing of parts of the building. In my view, it would be unrealistic to suggest that a 12 bedroom dwelling would not be sub leased or rooms let in a more informal way particularly the size and design of the building and the proximity to Newcastle University. I note that the proposal anticipates the building being used in this manner. 20 The definition of "boarding house" includes a building "let in lodgings". Notwithstanding the absence of a definition in LEP 2005, I am satisfied that the Macquarie Concise Dictionary definition of a "a room or rooms hired for residence in another's house" is appropriate and supports the council's position that the proposal is categorised as a "boarding house" under LEP 2005. I do not accept that even if the building is leased under the Residential Tenancies Act 1987 and subsequently sub leased or rooms let in a more informal way that this in any way impacts on the determination required for the categorisation of the proposal required by LEP 2005. As correctly submitted by Mr Fraser it is the use of a building that determines how it is to be categorised and based on the facts of this case, I am satisfied that the proposed use is a building "let in lodgings" in that it is "a room or rooms hired for residence in another's house". The building is consequently categorised as a "boarding house" under LEP 2005. The proposal is prohibited in the zone and it follows that that the appeal must be dismissed and development consent refused.

21 For completeness I will briefly deal with the other issues. Character 22 Mr Geoffrey Mansfield, the Development and Building Co-ordinator for the council and Mr Richard Bennett, a town planner provided evidence on this issue.

Density, bulk and scale 23 The site is located within the Standard Residential Precinct under the Strategy. This allows a density of 1 x 3 plus bedroom dwelling per 349 sq m. of site area. The Strategy also provides for increased density for sites located in close proximity to a nominated District or Neighbourhood centre and subject to additional criteria being met. In this case the site is located within 400 m of the Birmingham Garden Centre. This centre is nominated as a Neighbourhood centre in the Strategy.

24 Mr Mansfield's position is that given a standard single dwelling contains 3 to 5 bedrooms and with a site area of 575.4 sq m, the proposal would equate to 1.6 standard dwellings (including a 30% density bonus allowance where the proposed dwelling addresses the street and has direct street frontage) or 5 to 6 bedrooms. Mr Mansfield further states that the site is not entitled to any additional density because of the proximity to Birmingham Garden Centre because it does not satisfy the additional criteria (principally the safety criteria). Mr Mansfield also contends that the Birmingham Garden Centre does not warrant its current Neighbourhood centre status because of a lack of facilities to serve the local population. 25 Mr Bennett states that the site should gain the benefit of the proximity to the Birmingham Garden Centre. The increased density allows for a 1 x 3 plus bedroom dwelling for 285 sq m of site area. This equates to 6 to 10 bedrooms. Mr Bennett further states that Newcastle University was seen as a potential neighbourhood centre in the Strategy and this further supports his position on the increased density.

26 On the issue of density I agree with Mr Mansfield that the density is unacceptable and provides a building that has a greater bulk and scale than envisaged by the councils planning controls. Even accepting that the increased density is available through the proximity to the Birmingham Garden Centre (although I accept there is some merit in the evidence of Mr Mansfield that it should be deleted), the density is still in excess of that anticipated by the Strategy, i.e. 6 to 10 bedrooms under the Strategy compared to the proposed 12 bedrooms.

27 I have given no weight to Mr Bennett's assessment of occupancy rates as a means of supporting his position. I am unsure as to the origin of the occupancy rates, the suitability in this location and for the proposed use. In any event, the Strategy does not address density in terms of occupancy rates. Similarly, I have given no weight to Mr Bennett's suggestion that Newcastle University should be seen as a potential Neighbourhood centre as the limited evidence at the hearing suggested that it was unlikely to fulfil a role as a facility that would provide facilities and support for the local community. 28 While Mr Fraser submitted that little weight should be given to the contents of the Strategy because it was not an adopted development control plan or local environmental plan, I am satisfied that the document should be given significant weight in the proceedings after taking into account those matters raised in par 92 of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 relating to the amount of weight given to a planning policy adopted by the council. Car parking 29 The provision of on site car parking was the subject of amended plans during the hearing. The most recent plan provided for 4 spaces, including the existing garage that would allow unimpeded access for the vehicles although the vehicles could not enter and leave in a forward direction.

30 Mr Mansfield considered 5 unstacked spaces to be appropriate whereas Mr Bennett was satisfied with the most recent amendment that provided 4 spaces.

31 The use of a building containing 12 bedrooms that will be leased to one or more students to conduct a share house of for other persons is not a use that is specifically addressed in any of the council planning controls. The most closely related categories within Schedule 1 of DCP 2005 relate to "Bed and Breakfast, Boarding Houses and Group Homes" and single dwelling. The car parking rate for "Bed and Breakfast, Boarding Houses and Group Homes" is 1 space 3 bedrooms plus 1 space per resident/manager. This would require the provision of 4 spaces as no resident/manager is proposed in this application. Single dwellings require 2 spaces for dwellings with a floor area greater than 125 sq m. 32 I share the concerns of Mr Mansfield over the provision of off street car parking largely because of the insufficient evidence that would allow the Court (or the council) to properly assess the parking requirements for a use not specifically addressed in DCP 2005. I agree with Mr Mansfield that the land use characteristics for "Bed and Breakfast, Boarding Houses and Group Homes" and single dwellings are so different to the use proposed in this application that no reasonable reliance can be placed on these parking rates (or any parking rates in DCP 2005). In my view, a proper assessment of off street car parking could only be undertaken following an assessment of a similar land use or using parking rates from another reliable and reputable source for a similar land use. I find that the applicant has not adequately discharged the responsibility to show that adequate off street parking has been or can be provided.

Open space 33 Clause 5.1.3 (b) provides requirements for external open space. The requirements relate to single dwellings. As with off street parking, I am not satisfied that in taking into account the proposed use, that sufficient evidence is available to properly assess the needs of future occupants in terms of open space. Clearly, a building that is designed to provide 12 bedrooms will generate a higher demand for open space than a dwelling of 3 plus bedrooms designed for a family.

34 Similarly, there was no evidence to indicate that the internal common areas are sufficient to provide a reasonable level of amenity for a building that contains 12 bedrooms and could potentially be occupied by at least 12 individuals.

35 Again, a proper assessment of internal common areas and open space could only be undertaken following an assessment of a similar land use or using parking rates from another reliable and reputable source for a similar land use. As was the case with car parking, the proposal is so different to a single dwelling that no reasonable reliance can be placed on the single dwelling rate for open space in DCP 2005.

36 The issue of the amount of common area and consequent internal amenity is not addressed in DCP 2005 and was not considered by either expert however, in my view, is a relevant consideration when the building can be potentially used by at least 12 individuals. 37 For the reasons mentioned above, I find that the applicant has not adequately discharged the responsibility to show that adequate open space and common area has been or can be provided.

Other issues 38 A number of local residents provided evidence on-site. Of the issues raised by the local residents and not addressed earlier in the judgement, I am satisfied that the issues relating to solar access and overlooking have been adequately addressed by the design, including the amendment to reduce the overall height of the building.

39 The issue of unacceptable behaviour from potential residents is not a matter that can be readily addressed through the planning process and would not be matter that would warrant the refusal of the development application if all other issues were satisfactory. Orders 40 The Orders of the Court are:

1. The appeal is dismissed. 2) Development Application 06/1416 for alterations and additions to an existing dwelling at 135 University Drive, North Lambton is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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