Makki Holdings Pty Limited v Hurstville City Council

Land and Environment Court (NSW)|2015-05-15|Before: Ms J

Solicitor: Zahr & Zahr Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10109 of 2015

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA2014/0964 for a boarding house development (the proposal) at 402 King Georges Road, Beverly Hills (the site) by Hurstville City Council (the Council).
The appeal was not subject to a conciliation conference, at the request of the parties.
The proposal is amended and leave was granted by the Court at the commencement of the hearing for the applicant to rely on the amended proposal, on the basis agreed by the parties pursuant to s 97B of EPA Act.

The site and its context

The site is on the southern corner of King Georges Road and Pallamana Parade, Beverly Hills. It has a frontage to King Georges Road of 21.95m and a frontage to Pallamana Parade of 11.58m. The area of the site is 339.1 square metres. The site is currently vacant.
Pallamana Parade comprises a mixture of one and two storey dwellings.

The proposal

Following the joint conferencing of the planning experts, the following amendments were made to the proposal: * A pathway to the motorbike parking is deleted increasing the landscaped area; * The retaining wall on the western side of the dwelling is moved to increase the landscaped area; * A gate on the eastern side of the dwelling is relocated; * A bicycle storage area is provided; * An additional motorbike parking space is provided to the south of the existing motorbike parking space; * A terraced landscaped area 1.8m x 1.8m is added to the south-western corner of the site; and * The boundary fence on the King Georges Road boundary is reduced to 1m in height forward of the dwelling.
The proposal is for a two storey dwelling comprising four single boarding rooms and a common room on the ground floor and four single boarding rooms on the upper level. Each room has an ensuite bathroom, a wardrobe and a kitchenette and there is a communal laundry area on the ground floor. The proposal includes an outdoor terrace and common open space in the south-eastern corner of the site, two car parking spaces and two motorbike parking spaces accessed from Pallamana Parade and an area for storing bicycles.

Planning Framework

The application is made pursuant to SEPP ARH. The Council demonstrated in the hearing that the proposal meets the requirements of Division 3 'Boarding houses' of SEPP ARH, excluding cl 29(2)(f), and I accept Council's submission.
SEPP ARH includes the following at cl 29 'Standards that cannot be used to refuse consent': (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (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
State Environmental Planning Policy (Infrastructure) 2007 requires, at cl 102, that development on land adjacent to certain road corridors (which include King Georges Road) for residential purposes meet certain thresholds for acoustic performance. The parties submit that this requirement is met by condition 8 (exhibit 3) requiring the recommendations of the Acoustic Report prepared for the proposal (exhibit E) to be implemented. I accept the submissions of the parties in relation to the satisfactory acoustic performance of the proposal.
The site is zoned R2 Low Density Residential pursuant to Hurstville Local Environment Plan 2012 (LEP 2012). The relevant objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.
The floor space ratio (FSR) development standard for the site is 0.6:1 (FSR Map Sheet FSR_04 LEP 2012) and the height of buildings development standard for the site is 9m (Height of Buildings Map Sheet HOB_04 LEP 2012). The proposal has a FSR of 0.59:1 and a maximum height of 7.6m. While an exceedance of the FSR development standard could not have been used to refuse consent, pursuant to cl 29(1)(a) of SEPP ARH, the Council submits that compliance with these development standards for the site demonstrates that the design of the proposal is compatible with the existing and future character of the local area, pursuant to cl 30A of SEPP ARH.
The General Planning Considerations of Development Control Plan No 1 - Hurstville LGA Wide (DCP No 1) include at 3.3.5.1, a requirement for boarding houses to have 2 accessible bedrooms per 5 bedrooms and 1 accessible parking space per 10 bedrooms, both of which are met by the proposal.
The Council submits that Section 4.1 'Single Dwelling Houses' of DCP No. 1 is relevant in so far as it demonstrates that the design of the proposal is compatible with the existing and future character of the local area, pursuant to cl 30A of SEPP ARH. The proposal is consistent with the landscaped area controls at 4.1.3.2 of DCP No. 1, which require a minimum of 20% of the total site area to be landscaped area with a minimum dimension in any direction of 2m. The proposal is consistent with the front setback requirement of 4.5m, the rear setback requirement of 3m and the side boundary setback requirements of 900mm at ground level and 1200mm at first floor level, at 4.1.3.4 of DCP No. 1.

Public submissions

Six resident objectors provided evidence at the commencement of the hearing on site, on behalf of a large group of objectors in attendance at the site view. Their objections to the proposal can be summarised as: * The proposal will result in additional cars being parked in Pallamana Parade and more traffic in the area; * The proposal is out of character with the low density residential area of Pallamana Parade; * The proposal will compromise the privacy of the bedroom on the western side of the adjoining neighbour; * The future residents of the proposal may compromise the safety and security of the area, including the nearby school; * The proposal will overshadow the solar panels on the dwelling to the south of the site; and * The proposal is an overdevelopment of the site and will set a precedent for similar developments.

Expert evidence

Expert planning evidence was provided by Mr Warwick Gosling on behalf the Council and Mr Benjamin Black on behalf of the applicant.
In Mr Gosling's view, when calculating the gross floor area of a boarding room, the area should exclude a distance 500mm from the kitchen bench as this area forms part of the kitchen facilities. He bases this assertion on the conduct of a matter he was involved in prior to the commencement of SEPP ARH, where an area in front of the kitchen bench was excluded from the gross floor area calculation of a room. In Mr Black's view, a boarding room is a multi-purpose room and as such, only the area of the kitchenette bench top should be excluded from the gross floor area calculation of the boarding room.

Consideration

Mr Seymour submits that in interpreting the meaning of cl 29(2)(f) of SEPP ARH it is appropriate to consider the language used in the text of the provision and then look at the context and purpose of the provision, and not to displace the clear meaning of the text with historical or extrinsic material, consistent with the relevant caselaw on statutory interpretation. He submits that the text of cl 29(2)(f) does not require the exclusion of some ad-hoc dimension and that Mr Gosling, in doing just that, has brought some preconceived ideas to interpreting the provision. According to Mr Seymour, the purpose of the provision is to create a volume of living space of 12 square metres in plan and the area to be excluded from the gross floor area calculation is only that devoted to the kitchen facilities, being the benchtop area in plan.
I accept Mr Seymour's submission and I am satisfied that all the boarding rooms each have a minimum gross floor area of 12 square meters. I note that the accommodation size requirement of SEPP ARH, being the 12 square metres for a single lodger's room, is a standard that cannot be used to refuse consent. In other words, if the rooms are 12 square metres or greater, the size of the room cannot be held to be inadequate and used as a reason to dismiss the appeal. Conversely, if the rooms are less than 12 square metres, it becomes a matter of discretion on a merit basis as to whether the size of the room is acceptable. On that basis, I am also satisfied that the size and layout of each of the eight rooms, as shown on exhibit A, are functional for a single lodger and of adequate dimensions.
I accept Council's submissions in regard to the design of the proposal being compatible with the existing and future character of the local area.
The shadow diagrams (drawing 1400 rev C of exhibit A) demonstrate that the southern neighbour's solar panels will have at least 3 hours of sunshine between 9am and 3pm on the winter solstice, which is acceptable.

Conclusion

I am satisfied that the proposal is compatible with the character of the local area.
I am satisfied that the proposed boarding rooms are a minimum of 12 square metres in area and that each room is functional for a single lodger and of adequate dimensions.
In considering the amended plans and documents and agreed conditions of consent at Annexure A and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA2014/0964 for a boarding house development at 402 King Georges Road, Beverly Hills, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1, A and E, are returned. ____________ Susan O'Neill 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: 15 May 2015

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