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[2012] NSWLEC 1128
Land and Environment Court (NSW)
2012-05-04
Mr J
Original judgment source is linked above.
Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10073 of 2012
Judgment 1Mr Mansour sought development consent from Fairfield City Council for the demolition of a single storey dwelling house and the erection of a single storey boarding house containing nine boarding rooms, a communal room and a carport to accommodate two vehicles. The Council refused the application and Mansour is appealing that decision. 2The issues in the case are whether the Court should apply the current or previous provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009; whether the development is compatible with the character of the local area and would have an adverse impact on visual and acoustic amenity of the neighbourhood, whether information has been provided to allow determination of the application and if the application is in the public interest
Background and the proposal 3Mansour lodged Development Application DA900.1/2010 with the Council on 2 September 2010. Since the original application was lodged, he has amended it on a number of occasions in an attempt to address concerns of the Council and those of residents raised in response to the notification of the application. The application was considered by the Council's Independent Development Assessment Committee and subsequently by the Full Council and was refused on 11 grounds. The reasons for refusal are: (i)The proposed boarding house development is considered to be a prohibited land-use within the Residential 2(a) zone as they fall within the definition of multi unit housing, pursuant to Fairfield Local Environmental Plan 1994. (ii)The proposed boarding house development is inconsistent with the objectives of the Residential 2(a) zone and therefore the development does not comply with Clause 8(2) of Fairfield LEP 1994. (iii)The proposed development does not represent orderly development, as it proposes to develop land having a width below that which is considered appropriate to facilitate orderly development. (iv)It is considered that the proposed development will result in an unsatisfactory environmental impacts relating to loss of privacy, the loss of acoustic amenity, and the increase in lighting associated with the proposed boarding house development. (v)Inadequate provision has been made for car parking and vehicle manoeuvring on site, setbacks from side and rear property boundaries and landscaping of the site. (vi)It is considered that the development is likely to have an adverse impact on the visual amenity of the neighbourhood by the introduction of a building form that is out of character with the surrounding development and is inconsistent with the existing and future desired character of the locality. (vii)Insufficient and inadequate information has been submitted with the application in respect of the following: •resolution of stormwater impacts and determination of adequate minimum floor levels; •social impacts and the adequacy of support services; •landscaping of the site; •Operational Plan of Management. (viii)Approval of the application is not considered to be in the public interest. (ix)The development is not an attractive high quality development and would provide poor quality boarding house style accommodation. (x)The choice of a design which has " motel style" apartments, side by side on the block brings an unsatisfactory amenity for the future residents, particularly because of the small amount and the position of landscaping and private open space. (xi)The design proposed is not consistent with the character of the neighbourhood, as stipulated in the Affordable Housing SEPP, and to produces an out of character building covering too much of the site, notwithstanding compliance with the FSR. 4The proposal involves the demolition of an existing dwelling and the construction of a new single storey building that would provide nine boarding rooms, each containing a bathroom, living/bedroom area and kitchen. The applicant advises the kitchen would be equipped with a bar fridge, cooking facilities, sink and food preparation area. A communal room and laundry would also be provided at the rear of the building. A corridor along the eastern extent of all boarding rooms provides access from the building entry to each room and the communal space. 5The applicant provided amended plans during the hearing that addressed accessibility issues from the communal room to the rear, common open space. Parking for two vehicles is provided in a carport attached to the front of the building with access from a driveway off The Promenade with bike racks provided at the front of the site adjacent to the eastern property boundary. 6The front setback of the building varies from approximately 6 m on the eastern side to 6.5 m on the west due to the angled frontage of the site. Setbacks of the building off the rear boundary vary from 4.52 m to 8.99 m and between 900 mm and 1.25 m from the eastern and 1.96 and 2.8 m from the western side boundaries. Patios are provided off rooms 1 and 6 and the rear of the communal room and all rooms access the side setback area through sliding doors in the western elevation. 7The building steps down the site due to its slope from front to rear and the main corridor is a series of ramps to facilitate access through the building. 8Gross floor area of the rooms, including facilities ranges from 22.56 - 23.32 sqm, the common room is 23.29 sqm and the communal courtyard was 49.77 sqm but reduced in the amended plans due to the inclusion of the ramp access to 46.35 sqm. Floor space ratio (FSR) of the development is 0.45:1 which is the maximum allowed under the council's planning controls for the site.
The site and its context 9No 123 The Promenade consists of lots 78 and 79, Section 2, DP 1625. The dwelling house proposed to be demolished is located principally over lot 78 and partly over lot 79. The boarding house development is confined to lot 78. Lot 79 contains a small dwelling house which is proposed to be retained and does not form part of the development proposal 10Lot 78 is rectangular in shape and has a frontage and rear boundary of 10.055m, depth of approximately 59 m and site area of around 580 square metres. The site has a fall of approximately 3 m from the road to the rear boundary. A number of trees and shrubs are contained on the land, all of which are to be removed. 11The site is located in the northern most section of the City of Fairfield and is on the southern side of a residential block bounded by The Promenade, Church Street, Orchardleigh Street and Broughton Street. The block contains predominantly older style, single storey, detached dwelling houses of fibro and weatherboard construction, with some newer brick dwellings. A church, childcare centre and a multi unit housing development containing five villa and townhouse units are also located within the block. Single storey dwelling houses adjoin the site and are also located opposite. Orchardleigh Street forms the boundary between the residential area and the Fairfield East Industrial Estate. Lots within the residential area north of that street are characteristically long and narrow and contain smaller scale, dwelling houses with large rear yards.
The planning controls 12The site is within the 2(a) Residential A Zone under Fairfield Local Environmental Plan 1994 (the LEP). Boarding houses are not defined in the Dictionary to that Plan and the Council contends the use would fall within the definition of multi-unit housing, which is defined as. Multi-unit housing means 2 or more dwellings (whether or not attached) on one allotment of land, each with private access to ground level open space. 13Multi unit housing is prohibited in the 2(a) zone. 14Clause 11 of the LEP applies to development of flood-liable land. The site, according to a Flood Information Sheet issued by the council, (Appendix 4 of Exhibit 8) is identified as being partly within a Medium Flood Risk Precinct, partly within a Low Flood Risk Precinct as a result of overland flooding and partly not affected by local overland flooding. At the request of the Court, a plan showing the extent of flooding was tendered during the hearing as Exhibit 11. 15Clause 11 states: (1) The Council must not consent to the erection of a building or the carrying out of a work on flood-liable land unless the provisions of the Council's Flood Management Policy that relate to the proposed development have been taken into consideration. Copies of the Flood Management Policy are available for inspection at the Council's Office. (2) The Council may refuse consent to an application to carry out any development which in its opinion will: (a) adversely affect flood behaviour, including the flood peak at any point upstream or downstream of the proposed development and the flow of floodwater on adjoining lands, (b) increase the flood hazard or flood damage to property, (c) cause erosion, siltation or destruction of riverbank vegetation in the locality, (d) affect the water table on any adjoining land, (e) affect riverbank stability, (f) affect the safety of the proposed development in time of flood, (g) restrict the capacity of the floodway, (h) require the Council, the State Emergency Service or any other Government agency to increase its provision of emergency equipment, personnel, welfare facilities or other resources associated with an evacuation resulting from flooding, or (i) increase the risk to life and personal safety of emergency services and rescue personnel. 16Fairfield City Wide Development Control Plan 2006 (the DCP) also applies to the site. Chapter 11 - Flood Risk Management is particularly relevant to the application. 17State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) applies to and enables the application through clause 26. The council says the 2(a) zone is an equivalent zone to Zone R2 Low Density Residential. 18SEPPARH was amended on 20 May 2011 (the amending SEPP). Those matters of relevance to the application are the introduction of new clauses that have the effect of requiring additional considerations in the determination of the application and limiting the areas where boarding houses can be located to an accessible area. In particular, Clauses 27, 30A and 54A are relevant and state: 27 Development to which Division applies (1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses. (2) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area. (3) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones. 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 54A Savings and transitional provisions-2011 amendment (1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if: (a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and (b) the development is commenced not later than 2 years after the amendment. (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. 19An accessible area is defined as being: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 20It is common ground that the site is not within an accessible area and accordingly, the provisions of the amending SEPP would prohibit the development. It is also agreed that clause 54A(2) provides the consent authority with discretion as to application of the savings and transitional provisions. 21Division 3 of Part 2 of SEPPARH applies to boarding houses and the parties agree that the standards contained in the SEPPARH are met and the council raises no contentions in regard to those controls contained in the amending SEPP.
The issues 22The contentions in the case are whether:
The evidence 26In accordance with the Court's practice, the hearing commenced on site and evidence was heard from three objectors, residents of the two adjoining allotments in The Promenade and one resident from a dwelling opposite the site. The issues raised by those persons concerned the privacy and acoustic impacts of the development, traffic and parking, amenity impacts to residents of adjoining sites and the lodgers, character of likely residents, building is out of character with adjoining development and is an inappropriate location for a boarding house. 27Expert town planning evidence was heard from Mr Nash for the applicant and Mr Kerzinger for the council. Mr Williams (urban design) and Mr Gauld (acoustics) provided evidence for the council and the applicant chose not to provide expert evidence in those fields. 28Mr Gauld had provided an expert report in relation to the council's contention regarding noise impacts of the proposed development and that report was prepared on the basis of the development being occupied by up to 18 lodgers (2 per room). The applicant's POM would restrict occupancy to a maximum of 12 lodgers and he advised that his conclusions would not alter as a result. He had measured noise levels at the site and arrived at L90 background noise levels as being:
Conclusion and findings 39An issue in the appeal is how the provisions of clause 54A(2) is applied. There is no dispute between the parties that the application is an existing application for the purposes of the clause. The clause provides that the application may (emphasis added) be determined as if the amending SEPP had not been made. The use of the word "may" is different to those included in other clauses of the policy which use "must" (see clause 54A(3)). For that reason, it is apparent the drafters of the policy had a different intentions for the transitional provisions. This matter has been considered by Tuor C in Huang & Lei v Parramatta City Council [2012] NSWLEC 1077 where she considered a similar case where that development would also be prohibited if the amending SEPP were to be applied. She says at [23] - [25]: 23The exercise of discretion to determine which version of the SEPP to apply would require a consideration of the circumstances of the case and the consequences of the exercise of discretion. In the circumstances of this case, an assessment of the application under the amending SEPP would result in the automatic prohibition and refusal of the application as it is not permissible under the Amending SEPP. No assessment of the merits of the application would be required, in particular a consideration under cl 54A(3) of whether the design of the development is compatible with the character of the local area. If the application were to be assessed under the version of SEPP ARH in place at the time of lodgement, cl 54A(3) would also be a mandatory consideration. 24In exercising the discretion, I acknowledge that the normal purpose of a saving clause is to have a savings effect on an 'existing application' by not introducing retrospective controls that are determinative. It preserves a developments permissibility while enabling a consideration of an application's consistency with the planning approach sought by the new controls. It would appear to be fair and reasonable that an application, which was permissible at the time of lodgement, should not be rendered impermissible by a new instrument. Rather a consideration of the merits of the application, under the Original SEPP ARH, including an assessment of the compatibility of the design with the local area, should be undertaken. 25In the circumstances of this case and in exercising the discretion under cl 54A(2), I find that the application should be determined as if the amending SEPP had not been made. 40I concur with those findings and turn to the merits of the application and in particular, whether the design of the development is compatible with the character of the local area. There is no dispute that the local area is the block bounded by The Promenade, Church Street, Orchardleigh Street and Broughton Street. I concur that the local area is, for the most part, defined by that street block but also extends to those properties on the opposite side of The Boulevarde. Those lots have been developed with similar attributes to those within the street block. 41Having defined the local area, it is then necessary to determine the character of that area. In this regard, the experts agree that the area is typified by predominantly older style, single storey dwelling houses with some newer two storey dwellings. These dwellings are sited on large allotments and front setbacks of houses are variable and generally dominated by green areas, not necessarily landscaped areas. 42The dwellings are primarily sited towards the front of the allotment and the rear yards are large and provide a 'green zone' and significant separation between buildings. Where there are outbuildings, these are usually smaller in scale to the main dwelling and located towards the rear of the allotment. Whilst there are some larger buildings, they are not the dominant built form. Apart from a multi-unit housing development in Orcharleigh Street, there are no buildings that occupy a large proportion of the length of the allotment. Where dual occupancy development has been approved, those buildings provide separation and retention of that 'green zone'. 43The design of the development attempts to respond to the local character through its single storey design however, the consequence of this choice is a building that extends some 47 m along the length of the site leaving a minimal area for the preservation of the 'green zone'. The carport forms the dominant element of the front façade and the narrow entry foyer and small window do not reflect the presentation of other dwellings in the local area. Whilst I accept that to be compatible, a development does not have to be the same, I have regard to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. Having regard to those principles, I prefer the evidence of Mr Kerzinger that the design of the development is not compatible with the character of the local area. 44The enquiry does not stop there, the merits of the application must also be considered. In this regard, I also accept the evidence of Mr Kerzinger and Mr Williams that the internal and external amenity impacts of the design of the building are unacceptable, and whilst the development satisfies all relevant controls contained within SEPPARH, assessment of the application under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979 is also required. In this regard, I find that the application would result in unacceptable amenity impacts to adjoining properties, particularly 121A. I do not consider that the amendments foreshadowed in the Version D plans sufficiently address the impacts of the design deficiencies highlighted by the council. 45Those considerations also extend to consideration of whether the provisions of the Council's Flood Management Policy that relate to the proposed development have been taken into consideration. As stated at [25], the Court did not have sufficient information to form any conclusion in relation to the provisions of clause 11 of the LEP, in particular subclauses (2) (a) and (b). However, in view of my finding that the development is not compatible with the character of the local area and that I give the provisions of clause 54A significant weight, that fact, together with the failure of the application on a merits assessment means that the drainage issue is not determinative and that it is not necessary to undertake any further investigation of that issue.
Orders 46The Orders of the Court are: (1)The appeal is dismissed. (2)Development application DA900.1/2010 for the demolition of a single storey dwelling house and the erection of a single storey boarding house containing nine boarding rooms, a communal room and a carport to accommodate two vehicles at Lots 178 and 179 Nos 123 and 123A The Promenade, Old Guildford is refused consent. (3)The exhibits, other than Exhibits A, B and 1, are 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: 22 May 2012
Mansour
Fairfield City Council