Maharaj v Parramatta City Council

Background and the proposal 6Internal partition walls have been erected within the dwelling house to increase the number of rooms and it has been used as a boarding house since January 2010. Neither the works nor the change of use of the building have been the subject of a development consent. The application seeks approval to reconfigure the internal room layout so as to reduce the number of bedrooms from eight to seven and to authorise the use of the dwelling as a boarding house accommodating seven persons. 7Two bathrooms (one on each floor), one kitchen, a laundry with additional shower and common living and dining areas are to be provided within the building. An external WC is provided at the rear fo the dwelling. 8During the view, an area to the south of the dwelling was identifed by the parties as being suitable for use as an external smoking area, as the applicant intends to prohibit smoking within the building. That area adjoins the blank wall of the adjacent shop building. 9The council originally refused consent to the application on 18 October 2010 for the following reasons: (1)There is a need to protect the local neighbourhood from such developments; (2)there is a lack of intrastructure in the area; (3)the proposal is inappropriate in a residential street; (4)there is a lack of public transport in the area; (5)the application does not comply with the Affordable Housing SEPP. 10Amended plans have been filed with the Court and leave granted to rely on those plans. The plans do not alter the intent of the use, however they do reduce the number of bedrooms from eight to seven. Further plans providing better detail on the size, layout and usefulness of individual bedrooms and common areas were tendered during the hearing.

The planning controls 11The site is located within the Harris Park precinct and zoned Residential 2(a) under Sydney Regional Environmental Plan No 28-Parramatta, a deemed state environmental planning policy (SEPP 28). A boarding house containing not more than 5 bedrooms (including bedrooms in the manager's residence) is permitted with consent on the site pursuant to the SEPP 28 provisions. Accordingly, as the proposal includes seven bedrooms, the development would be prohibited under SEPP28. 12The Harris Park Precinct DCP 2002 (the DCP) also applies to the site. Clause 6.8 is relevant and requires that premises are accessible, compliant with the Building Code of Australia (BCA) and the Disability Discrimination Act 1992. 13State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP 2009) is relevant to the application. The aims of SEPP 2009 in cl 3 are: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation. 14SEPP 2009 adopts the definitions contained within the Standard Instrument-Principal Local Environmental Plan (the Standard Instrument) and the following definition applies to a boarding house: boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. 15Clause 28 of SEPP 2009 requires that development for the purpose of a boarding house must be carried out with consent. Clause 29 of SEPP 2009 provides: (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted-the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register-the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager-one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if not more than: (i) one parking space is provided for each 10 boarding rooms or part thereof, and (ii) one parking space is provided for each person employed in connection with the development and who is a resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 16Clause 30 of SEPP 2009 requires that: (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) if the boarding house is on land within a zone where residential flat buildings are permissible, no new car parking for lodgers will be provided on the site, (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.

The evidence 17The hearing commenced on site where I heard evidence from three objectors to the proposal. The matters raised by those persons were:

• noise associated with the unauthorised use of the property, particularly late at night which disturbs the residents' enjoyment of their dwelling;
• fear for general safety;
• impact of development on property value;
• tenants congregate in the street;
• inadequate parking;
• room sizes do not comply with that recommended in SEPP2009;
• inadequate hot water available for tenants;
• area not suitable for a boarding house;
• other forms of temporary accommodation are available nearby, particularly in the residential flat buildings;
• accepts the Plan of Management (POM) proposed may address many of the concerns but is concerned the applicant is getting 12 months to provide it.
• Need for a contact person in the event of complaints. 18During the view, I noted that a bus regularly serviced Alfred Street. That bus provides access to Auburn Railway Station. A bus to Parramatta is also available further north along Alfred Street. 19Under SEPP 2009 development consent for a boarding house is required. The applicant has lodged a development application to use the existing dwelling as a boarding house. It is council's refusal of the development application that the applicant has appealed against and which must be determined by the Court. 20The matters to be considered in determining a development application are set out in s79C of the EPA Act. The matters of relevance to the application include: (1) (a) the provisions of: (i) any environmental planning instrument, and ......... (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and ....... (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, ......... (e) the public interest. 21The relevant environmental planning instrument is SEPP 2009 and overides the council's planning instruments. Clause 8 provides that if there is any inconsistency with the policy and any other environmental planning instrument the policy will prevail to the extent of the inconsistency. Clause 29 establishs minimum controls which, if met, cannot be used as a ground to refuse an application. Those matters listed in clause 30 are minimum requirements and any variation to those requirements must be considered acceptable by the consent authority. The parties agree that the standards contained within clauses 29 and 30 are not development standards. 22The proposed development complies with all of the relevant standards of SEPP 2009 other than the solar access provision (clause 29(2)(c)), minimum room size provisions (clause 29(2)(f)(i)). A minimum floor area of 12 square metres is the recommended standard where the bedroom will be occupied by one lodger. The application proposed seven bedrooms, each of which are to be occupied by one lodger. Of those rooms, four meet the 12 square metre requirement and the other three are smaller, ranging in area from 7.35m2 to 10.75m2. The plans prepared show that the smallest room can accommodate a single bed, wardrobe, table and chair. The parties agreed at the view of the site that the rooms were large enough for their intended use. 23I heard evidence from Mr Nash, a town planner for the applicant, in relation to both the room size and need to provide disabled access and facilities. Mr Nash considers that the rooms are adequate to accommodate appropriate furniture for each resident and that, due to the aspect of the rooms, there is a reasobable level of amenity provided. 24With regard to the need to provide accessible facilities within and to the premises, Mr Nash advised that this could be provided through the construction of a ramp adjacent to the rear door, modification of either the ground level bathroom or laundry/external WC and kitchen area, refitting those areas and the widening of some of the doorways. He recommended that this matter could be addressed through a deferred commencement condition and agreed the works had potential structural implications as well as significant costs. 25The council does not press compliance with the disability provisions of the BCA and referred me to the decision of Dixon C in Thurkal v Parramatta City Council [2011] NSWLEC 1019 where it was found that SEPP 2009 did not require an existing building to be upgraded to comply with the provisions of the BCA and AS1428.1 - Design for Access and Mobility. Compliance with the BCA for a class 1b building would however be required and draft consent conditions have been included to address that requirement. 26The boarding house has operated for over a year without consent. Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) LGERA 408 discusses the relevance of an unlawful past use. At [35-38] His Honour states: Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. ...... The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant. For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 27Consistent with the decision of Preston CJ in Jonah , the illegal actions of past, present and future owners/operators are an irrelevant enquiry in the consideration of the merits of the application. It must be assumed that an owner/operator will comply with the consent and its conditions. 28The past unauthorised use of the site, as a boarding house, however, is a relevant consideration to assist in the assessment of the likely impacts of the proposal and how these can be mitigated. I acknowledge the concerns of the residents and in this regard, t he applicant has prepared a POM to address any possible anti-social issues that may arise from the use of the site. The council considers the POM is unsatisfactory and seeks further issues to be addressed, however is seeking that the final plan be the subject of a deferred commencement consent. Those matters to be included should address all of the behavioural concerns raised by the residents. 29The parties have agreed to a set of conditions that should be imposed by the Court.

Conclusion and findings 30The council has raised no objection to the proposal provided the conditions of consent which relate to management, fire safety, operational issues, facilities, occupancy and waste management are included in any order the Court may grant. Compliance with those conditions should address the concerns of neighbours. 31I note that the development as proposed is consistent with the majority of the standards contained within SEPP 2009 and that the council considers the variation to those standards is acceptable in the circumstances of the case. The use of site satisfies the objectives of SEPP 2009 and is not considered to be out of character with the area. Given the small scale of the development, the fact that the use involves the use of an existing dwelling and the costs involved, I do not consider that it is necessary for the development to provide full accessible facilities. 32Accordingly, I find that it is appropriate to grant the orders sought. Orders

1. The appeal is upheld.
2. The development application (DA/393/2010) to use an existing dwelling at Lot B DP 392539 No. 94 Alfred Street, Rosehill as a boarding house is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 1, 3, A and C may be returned. Sue Morris Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2011