Parker Logan Property Pty Ltd v Bayside Council

Issues

1. The Council's contentions pressed in the hearing can be summarised as:

• The shopfront of the existing building should retained to a depth of 4m because it contributes to the historical context of the shopping strip;
• The increased traffic in Queens Lane will result in sleep disturbance to the residents of 2-4 Queens Street and there is insufficient room for the SRV (small rigid vehicle) to access the waste room;
• The proposal does not activate the Bay Street frontage with commercial or retail premises on the ground floor, contrary to a requirement to do so;
• The proposal is not compatible with the character of the local area. The applicant's calculation of gross floor area under the definition is incorrect and the proposal exceeds the height and floor space ratio (FSR) development standards for the site. The applicant has not demonstrated circumstances that justify those exceedances;
• The internal amenity of the proposal is unacceptable as the communal room on the first floor does not have sufficient solar access.

The site and its context

1. The site is located on the southern side of Bay Street, between Queens Road and Trafalgar Street. The site has a street frontage to Bay Street of 15.24m and an area of 696.6sqm. The site has rear lane access from Queens Lane.
2. The existing building on the site is two storeys high with three shop fronts and an awning fronting Bay Street. The block which includes the site is comprised of one and two storey shopfronts.
3. The commercial eastern end of Bay Street is a mix of older two storey shops fronting the street and contemporary mixed use developments with retail on the ground level fronting Bay Street. There are a number of 9 storey buildings with commercial uses on the lower levels and residential apartments over on the opposite side of the street. Brighton Shores is a 9 storey mixed use development on the same side of Bay Street, west of Queens Road.

The proposal

1. The proposal is for the demolition of existing structures on the site and the construction of a boarding house development, as follows:

• Two levels of basement car parking for 18 cars and 16 motorbikes and services;
• Ground level consisting of pedestrian entry from Bay Street, reception lobby, vehicular entry to the basement level from the laneway and services;
• Level 1 consisting of caretaker's apartment, a common room and 5 boarding rooms;
• Levels 2 - 6 consisting of 10 boarding rooms on each level;
• Levels 7 - 8 consisting of 8 boarding rooms on each level;
• Level 9 consisting of 7 boarding rooms.

Planning framework

1. The development application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The aims of SEPP ARH 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.
2. The SEPP ARH prevails over other environmental planning instruments (EPI), where there is an inconsistency, to the extent of the inconsistency, at cl 8 of SEPP ARH.
3. Division 3 of SEPP ARH applies to boarding houses at cl 27(1) on land within a B4 Mixed Use zone at cl 26(g). A communal living room is defined, at cl 25, as a room within a boarding house or on site that is available to all lodgers for recreational purposes, such as a lounge room, dining room, recreation room or games room.
4. The site is zoned B4 Mixed Use under Rockdale Local Environmental Plan 2011 (LEP 2011) and boarding houses are permissible with consent. The objectives for the B4 zone, to which regard must be had, are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

Public submissions

1. Four resident objectors gave evidence at the commencement of the hearing on-site. Their concerns regarding the proposal can be summarised as:

• The proposal will overshadow the residential flat building to the rear of the site at 2-4 Queens Road, Brighton-Le-Sands;
• The volume of traffic in the laneway will be unacceptable;
• The proposal will exacerbate the lack of parking in the area and the lack of parking has impacted on the viability of businesses in Bay Street;
• The site is zoned for mixed use and the proposal is for a single use, being a boarding house;
• The proposal should include an active shop front fronting Bay Street;
• The scale and bulk of the building exceeds the development standards and the size and scale of the proposal are excessive;
• A boarding house has low socio-economic and transient occupants and this use is contrary to the character of the area;
• The owners of local businesses are concerned about the addition of a boarding house in the locality.

1. In addition to the four resident objectors who gave evidence on-site, two volumes of submissions opposing the proposal and a list of names added to a petition opposing the proposal were tendered (exhibit 8). The concerns raised in the submissions included additional traffic and parking congestion, additional noise, the uncharacteristic design of the proposal and the unsuitability of a boarding house use in the local area.
2. It is appropriate to respond to the concern raised by so many of the resident objectors that a boarding house is an inappropriate development within the Brighton-Le-Sands shopping strip. Importantly, the presumption is that development which is permissible in the zone will be permitted provided that the proposal results in acceptable environmental impacts (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 [117]-[118]). The policy reflected in SEPP ARH generally encourages the development of affordable housing in most areas zoned for residential, mixed and commercial uses. The proposal is a 'new generation boarding house', which consists of self-contained rooms (with kitchenettes and bathrooms) and shared facilities including a common room. The proposal provides accommodation for a minimum of three months at market rents and includes an apartment for a boarding house manager, as required by SEPP ARH as the boarding house has the capacity to accommodate 20 or more lodgers.

Expert evidence

1. The applicant relied on the expert evidence of Mr Andrew Darroch (planning), Mr Rohan Dickson (urban design), Mr Zoltan Kovacs (heritage), Dr Renzo Tonin (acoustic engineering) and Mr Ramy Selim (traffic).
2. The Council relied on the expert evidence of Mr Joseph Vescio (planning), Ms Gabrielle Morrish (urban design), Mr Greg Patch (heritage), Mr Graham Atkins (acoustic engineering) and Mr Craig McLaren (traffic).

Demolition of the existing shopfronts

1. The existing site is not listed as a local heritage item, it is not within a heritage conservation area and it is not within the vicinity of a heritage item. The heritage experts agreed that the existing two storey commercial building dates from the inter-war period and that the building has been significantly altered, particularly the shop fronts below the awning.
2. In Mr Patch's view, the shop façades above the awnings in the block that includes the site consist of a representative group of shop fronts that illustrate the evolution of development along this portion of Bay Street in the formative years of the commercial precinct of Brighton-Le-Sands. In his opinion, the existing shopfronts should be retained to a depth of 4m as this would achieve an appropriate streetscape character for the base of the proposal. Mr Patch acknowledged that this sort of façadism is not considered to be best practice; however, it would maintain the character of the streetscape in his view.
3. The Council has designated the Bay Street, Brighton-Le-Sands retail and commercial strip for redevelopment, as reflected in the development standards of LEP 2011, which permits a height of 28m and FSR 3:1 (and greater for amalgamated sites) in the B4 zone along both sides of Bay Street and including the site. The redevelopment of Bay Street is underway. The opportunity for evaluating the heritage values of the existing shopping strip was as part of the strategic planning exercise that informed the development standards of LEP 2011 and/or previous LEPs. The Council has not presented any evidence and does not maintain that the existing shopping strip is worthy of retention for its historical or aesthetic values or character. As such, there is no justification for retaining the façade of the existing building on the basis of heritage values.
4. Retaining 4m of the building's structure behind the façade effectively only retains the façade of the building, because the internal rooms, including the fabric and finishes of those spaces, would be destroyed. This would be contrary to the philosophical approach to the conservation of places of cultural significance articulated in the Burra Charter (Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013). Retaining the façade of the existing building would present a significant and unjustified constraint to the development of the site without providing any benefit in terms of preserving the character and scale of the existing shopping strip.

Traffic and waste management

1. I accept the agreement of traffic experts that moving the southernmost three bollards within the rear setback of the Ground Floor plan (exhibit G) a short distance towards the east will relieve the conflict between the turning circle of the Small Rigid Vehicle (SRV) and the bollards when accessing the Residential Waste area. The agreement of the traffic experts is to be reflected in amended plans.
2. The proposal includes 18 car parking spaces. Clause 29 of SEPP ARH includes the following relevant provision for boarding houses: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (e) parking if: (i) in the case of development in an accessible area - at least 0.2 parking spaces are provided for each boarding room (ii) in the case of development not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,
3. The parties submitted that the requirement in subcl 29(2)(e)(i) is a minimum requirement, the requirement in subcl (ii) does not apply to this proposal and the requirement in subcl (iii) is a maximum requirement. The experts interpreted the provision to require 16 car parking spaces (of which 4 are to be accessible) for the 79 boarding rooms and 1 car parking space for the caretaker.
4. The provision requires a total of 16 car parking spaces, under subcl 29(2)(e)(i), in order that insufficient car parking spaces is not available as a reason for refusal of development consent. A car parking space is not required by subcl 29(2)(e)(iii) for the caretaker, although a maximum of 1 may be provided. Therefore the proposal would meet the terms of the provision at (e) if both 16 or 17 car parking spaces are provided, and if the terms of this provision are satisfied, the consent authority cannot refuse consent on this ground.
5. The proposal is for 18 car parking spaces. As the minimum requirement of 16 car parking spaces is met, one extra car parking space in excess of the minimum under subcl 29(2)(e)(i) is, in all the circumstances of this proposal, not a cause for concern in my view. The provision at (e) does not specify exact requirements that must be met and not exceeded and this is clear from the language, "at least", in (e)(i). Instead, subcl 29(2)(e)(i) specifies the minimum requirement for car parking spaces that, once met, cannot be used as a reason for refusal.
6. I accept Mr McLaren's opinion that the basement is 'tight' and the successful operation of the basement requires the proposed traffic management system.
7. Mr McLaren suggested a condition be imposed for the Plan of Management for the Boarding House to require visitors not to use the laneway and residents not to use the laneway to access taxis, ride share vehicles and couriers. The applicant does not oppose such a condition and it is to be included in the conditions of consent.

Acoustic impacts of traffic in Queens Lane

1. The Council submits that the increased traffic in Queens Lane will result in sleep disturbance to the residents of 2-4 Queens Street.
2. The real concern behind this contention is the noise of motorbikes accessing the basement of the proposal, as they pose a greater risk of sleep disturbance to neighbours fronting the laneway. I do not accept that this contention is determinative, because the laneway forms the boundary between the B4 Mixed Use zone fronting Bay Street and the R4 High Density Residential zone on the southern side of the lane. Inevitably, any permissible development in the B4 zone commensurate with the development potential of those sites and consistent with the parking rates in the Rockdale Development Control Plan 2011 (DCP 2011) at 4.6, with access from the laneway, would significantly increase the traffic movements within the laneway. This proposal has less car parking spaces, consistent with SEPP ARH, than the parking rate required under DCP 2011 for other permissible uses.
3. In order to ameliorate the acoustic impact of motorbikes in the laneway during the night, I accept Dr Tonin's suggestion that a condition be included to require the Plan of Management to limit the capacity of any motorbikes using the basement parking spaces to a maximum capacity of 300cc, based on the registration certificate of the motorbike. A condition is to be imposed to this effect.
4. DCP 2011 at 4.4.5 requires residential development to have impact isolation between floors to achieve an Acoustical Star Rating of 5. The experts agreed that this is a requirement in excess of the requirement under the Building Code of Australia, and that it can be achieved by carpeting the boarding rooms. I accept the agreement of the experts and the floor finishes are to be noted on the plans as carpet, excluding the entry hall, kitchenette area and bathrooms because they are either wet areas or they are located under the bulkhead which can be insulated.

Activation of the Bay Street frontage

1. The Council submits that cl 30(g) of SEPP ARH, as follows, is not met, because the site is on land zoned primarily for commercial purposes being the B4 Mixed Use zone and the proposal includes a reception and lobby area for the boarding house on the ground floor fronting Bay Street, which is a residential purpose not permitted by another EPI: (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,
2. Clause 30(g) of SEPP ARH requires that I be satisfied that 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.
3. The site, zoned B4 Mixed Use, is on land zoned primarily for commercial purposes. In Australian Lifestyle Corporation Pty Limited v Wingercarribee Shire Council 168 LGERA 239 at [30], the Chief Judge determined that the phrase "zoned primarily for urban purposes" in the relevant SEPP depended on the construction of the particular EPI that zoned the land in question and characterised the zoning by reference to the name of the zone, its objectives and each of the nominate permissible or permitted purposes of the zone. Adopting this approach to the construction of "zoned primarily for commercial purposes" in SEPP ARH, the objectives of the B4 Mixed Use zone in LEP 2011 are to provide a mixture of compatible land uses and to integrate suitable commercial premises (business, office, retail) with residential and other development. The permitted uses in the zone are broad and include a wide range of commercial uses as well as residential and other uses. In addition, the B4 zone is identified as a business zone in cl 2.1 of LEP 2011. The B4 zone in LEP 2011 can be characterised as a zone primarily for commercial purposes, because the residential and other uses also permitted in the B4 zone do not necessarily erode its character as a business zone.
4. I am satisfied that no part of the ground floor of the proposal will be used for residential purposes. The terms of the provision do not contemplate that the ground floor cannot used as part of the boarding house, "no part of the ground floor of the boarding house", but that no part of the ground floor of the boarding house that fronts a street can be used for "residential purposes". The reception and lobby area fronting Bay Street are not residential purposes within the meaning of the provision, because this area does not form part of the private domain of a boarding house resident, instead it is a publicly accessible room to be primarily used by staff and residents of the boarding house and members of the public when making inquiries.
5. The site is within an area identified on the LEP 2011 Active Street Frontage Map. The red line denotes "Active Street Frontages".
6. Clause 6.11 of LEP 2011 is in the following terms: 6.11 Active street frontages (1) The objective of this clause is to promote uses that attract pedestrian traffic along certain ground floor street frontages in Zone B4 Mixed Use. (2) This clause applies to land identified as "Active street frontages" on the Active Street Frontages Map. (3) Development consent must not be granted to the erection of a building, or a change of use of a building, on land to which this clause applies unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use. (4) Despite subclause (3), an active street frontage is not required for any part of a building that is used for any of the following: (a) entrances and lobbies (including as part of mixed use development), (b) access for fire services, (c) vehicle access. (5) In this clause, a building has an active street frontage if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises.
7. DCP 2011 requires a minimum of 10% of the gross floor area of a mixed use development to be used for retail and/or commercial uses, at 5.3. The Council submits that this requirement is not pressed, however the Council seeks an amendment to the proposal to include 95sqm of retail on the ground floor fronting Bay Street.
8. During the hearing, the applicant tendered a ground floor layout which demonstrates that a retail space of 79sqm can be accommodated in the Bay Street frontage of the proposal, adjacent to the secure entry to the boarding house (exhibit H). The Council submits that the retail area shown in exhibit H can be increased to an area of 95sqm, by aligning the rear wall of the retail area with the northern wall of the Fire Services room. The Council submits that if the retail space of 95sqm is provided, the Council accepts that notwithstanding the requirement in DCP 2011 at 4.6 for a car parking space for every 40sqm of floor area, 2 parking spaces would be sufficient for the retail space, such that 16 car parking spaces are allocated to the boarding house use and 2 are allocated to the retail use on the ground floor. I accept the Council's submission and the proposal is to be amended accordingly, because the retail space on the ground floor will better fulfil the objective of cl 6.11 of LEP 2011 to promote uses that attract pedestrian traffic along the ground floor street frontage.
9. Furthermore, some of the evidence suggests that the applicant may have been dissuaded from including retail on the ground floor, not because of an objection to providing a retail use on the ground floor Bay Street frontage, but because this use would result in the application being for a mixed use development which would not meet some of the controls in DCP 2011 at 5.3, including that the site does not meet the minimum frontage width of 18m for a mixed use development of 4 storeys or greater, at 4.1.9 control 1 (g) of DCP 2011. As the Council strongly agitated for the inclusion of retail at the ground floor despite the non-compliances with some controls in DCP 2011 at 5.3, it is appropriate to exercise the discretion afforded by s 79C(3A) of the EPA Act in relation to any of the DCP controls not met by a proposal for a mixed use development, because the inclusion of 95sqm of retail on the ground floor Bay Street frontage represents a superior planning outcome that meets the priorities and relevant objectives of DCP 2011 for development in this locality.

Floor to ceiling height of the first floor

1. DCP 2011 at 4.4.3 permits residential development to have a floor to ceiling height on the first floor of 2.7m and mixed use development of 3.3m. DCP 2011 at 5.3 requires the first floor of a mixed use development to be designed as flexible space to allow future adaptation. I accept that the proposal before me is for a boarding house and not for a mixed use development, notwithstanding my direction to include retail on the ground floor, and I am satisfied that the floor to ceiling height of 2.7m on the first floor provides acceptable amenity for the boarding rooms, the caretaker's apartment and the common room.

Compatibility of the proposal with the character of the local area

1. Clause 30A of SEPP ARH requires consideration of whether the design of the proposal is compatible with the character of the local area. I am satisfied that the proposal is compatible with the character of the local area and particularly the desired future character of the local area as reflected in the relevant provisions of LEP 2011.

Height of the proposal

1. The maximum building height development standard for the site is 28m (Height of Buildings Map Sheet 004 of LEP 2011). The objectives for the height of buildings, at cl 4.3(1) of LEP 2011, are: (a) to establish the maximum limit within which buildings can be designed and floor space can be achieved, (b) to permit building heights that encourage high quality urban form, (c) to provide building heights that maintain satisfactory sky exposure and daylight to buildings, key areas and the public domain, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity.
2. The site is within an identified area that permits a proposal to exceed the maximum building height by 6m for a site of 2000sqm or greater, under cl 4.3(2A)(b) of LEP 2011. Although the site is not availed of this bonus, with a site area of only 696.6sqm, the potential for amalgamated properties in the vicinity of the site to have greater building envelopes than the development standards provide for on smaller sites is relevant in considering whether the design of the proposal is compatible with the character of the local area.
3. The maximum height of the proposal is 29.9m.
4. Clause 29(4) of SEPP ARH is a provision that provides flexibility in respect of the development standards for FSR and height of buildings. The applicant has tendered a written request (exhibit E) justifying the bases for the exceedance of the height of buildings development standards for the purpose of a merit assessment of the proposal, as it is not required as a pre-condition to the grant of power under cl 4.6 of LEP 2011 (193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 [48]). The applicant's reasons justifying the non-compliance of the proposal with the height of buildings development standard are:

• The building envelope is setback from the rear boundary to maintain an opportunity for the future extension of the laneway between Queens Road and Trafalgar Street and this opportunity constitutes a public benefit;
• The terms of the provision at cl 4.3 of LEP 2011 contemplates buildings of 34m in the vicinity of the site if the site area is greater than 2000sqm;
• The breach of the height of buildings development standard is primarily in the centre of the building and will not be visible when viewing the site from Bay Street in front of the site;
• The proposal provides approximately 2.7m floor to ceiling heights which is in excess of the floor to ceilings heights required by the Building Code of Australia, resulting in greater amenity for the future occupants;
• The proposal is compatible with surrounding tower development;
• The proposal is consistent with the intensity of development envisaged for this accessible area by the planning regime.

1. I accept the applicant's justifications for the exceedance of the height of buildings development standard in LEP 2011 of 28m. I am satisfied that the building envelope of the proposal is compatible with the character of the local area and reflects the desired future character envisaged by the development standards in LEP 2011. The minor breach of the height of buildings development standards allows for the proposal to realise the bonus FSR provision for this use in SEPP ARH and maintain an opportunity for the future extension of the laneway. I accept that by setting the proposal back from the rear boundary, the proposal provides a future opportunity for a significant public benefit in extending the laneway.

Calculation of the FSR

1. Clause 29 of SEPP ARH includes the following relevant provisions regarding standards that cannot be used to refused consent: (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 (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: (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.
2. Residential Flat Buildings (RFBs) are not prohibited in the B4 zone, so the bonus FSR provision of SEPP ARH is engaged because RFBs are a permissible use. The FSR development standard for the site is 3:1 (FSR Map Sheet 004 of LEP 2011). The 20% bonus under subcl 29(1)(c)(ii) of SEPP ARH therefore provides that if the proposal has a maximum FSR of 3.6:1, FSR cannot be a reason for refusal.
3. I do not accept Mr Vescio's calculation of the FSR under SEPP ARH which carves out the 10% of floor space required for retail/commercial in a mixed use development under DCP 2011 before calculating the bonus FSR under SEPP ARH; as not only would it be an erroneous construction to use the DCP control to interpret the SEPP's provision, but the DCP control is for a mixed use building.
4. The experts disagreed on the calculation of the proposal's FSR, because in Mr Vescio's view, the gross floor area of the proposal should include the external circulation corridors, the water tank, 2 car parking spaces and motor bike parking.
5. The definition of gross floor area in the dictionary of LEP 2011 is in the following terms: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
6. I do not accept Mr Vescio's position that the water tank is not part of the plant as it is consistent with the definition above at (f) and is therefore excluded from the calculation of the gross floor area. I do not accept Mr Vescio's position that 2 car parking spaces are included in the gross floor area because in his view the maximum requirement for car parking spaces is 16. For the reasons set out at paragraph 27 above, I am satisfied that the 18 car parking spaces provided meets the requirements of the provision and so the 18 car parking spaces are excluded from the calculation of the gross floor area. I do not accept Mr Vescio's position that motor bike parking is not caught by (g) above, as his view is an extremely literal and narrow interpretation of 'car parking'. I am satisfied that car parking in (g) includes motorbike parking such that motorbike parking is excluded from the calculation of the gross floor area.
7. Following the reasoning set out in my judgment in GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 at [31] interpreting the standard instrument definition of gross floor area, I am satisfied that the unenclosed external circulation does not form part of the gross floor area under the definition in LEP 2011. While this definition prevails, there will be a generation of multi-dwelling residential accommodation with windy corridors.
8. I accept the applicant's calculation of the FSR as 3.6:1. Notwithstanding my acceptance of the applicant's position, the flexibility afforded under cl 29(4) SEPP means that even if I am in error in relation to an aspect of the calculation of the numerical value of the FSR, nothing turns on that error, as I am satisfied that the building envelope proposed is acceptable, that it is compatible with the character of the local area and it is consistent with the future character envisaged by the planning regime.

Design of the proposal

1. I am satisfied of the following in relation to the building envelope and design of the proposal:

• the recesses in the side elevations are acceptable and while a future adjoining development will inevitably reduce the amenity of the central circulation area, this is not a reason to eliminate the voids that form the recesses in the side elevations, because a future adjoining development will only affect the amenity of the circulation area on each level but not necessarily diminish the internal amenity of the boarding rooms;
• there is no need for privacy screens to the rear elevation because the setback of levels 1 - 6 is a generous 13.8m from the rear boundary and the setback of the upper two levels is greater than 13.8m. Privacy screens on the rear elevation would unnecessarily reduce the amenity of the boarding rooms on the southern elevation; and
• the roof form is sufficiently articulated and acceptable.

Solar penetration to common area

1. Clause 29 of SEPP ARH includes the following relevant provisions regarding standards that cannot be used to refused consent: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (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,
2. I am satisfied that the north facing common room opening onto a terrace on the first floor of the development, overlooking the street, will have satisfactory amenity and solar access. The 3 hours of direct sunlight between 9am and 3pm on the winter solstice is not met because the screen façade constructed from Austral Breeze Blocks with a honed finish forms an upper storey element in response to the height of the two storey façades along Bay Street. Some filtered sunlight will penetrate the screen wall. The projection of the horizontal element above the screen wall, shown in section (exhibit G) is to be reduced in order to maximise sunlight penetration through the opening over the terrace to the common room.

Conclusion

1. This proposal is the first development in the block that utilises the full extent of the building envelope envisaged by the development standards in LEP 2011. The development will be prominent in the streetscape, but no more prominent than other contemporary development in the B4 mixed use zone and tourist zone fronting Bay Street in Brighton-Le-Sands.
2. I am satisfied that the standards for boarding houses in cl 30 of SEPP ARH are each met by the proposal or imposed by condition and that the design of the proposal is compatible with the character of the local area as required by cl 30A of SEPP ARH and that it is consistent with the future character envisaged by the planning regime.
3. I am satisfied that it is appropriate to grant development consent to the proposal, following the amendments to be made to the proposal listed below in the directions to parties.

Directions

1. In accordance with the findings of this judgment, the proposal is to be amended as follows:

• Paragraph 23: to adjust the position of the three southern bollards at the rear of the site further to the east to accommodate the turning circle of the waste vehicle in accordance with the evidence of Mr McLaren;
• Paragraph 29: to include a condition to require the Plan of Management for the Boarding House not to permit visitors not to use the laneway and not to permit residents to use the laneway to access taxis, ride share vehicles and couriers;
• Paragraph 32: to include a condition to require the Plan of Management to limit the capacity of any motorbikes using the basement parking spaces to a maximum capacity of 300cc, based on the registration certificate of the motorbike;
• Paragraph 33: floor finishes in the boarding rooms are to be noted on the plans as carpet, excluding the entry hall, kitchenette area and bathrooms;
• Paragraph 41: to provide a retail premises on the ground floor fronting Bay Street, similar to that shown in exhibit H and of at least 95sqm in area with a floor to ceiling height of 3.3m, to be shown in section;
• Paragraph 60: to reduce the projection of the horizontal element above the façade screen wall to the first floor Bay Street elevation in order to maximise sunlight penetration through the opening over the terrace to the common room;
• to show laundries on the plans, either on each level near the lift core or in a room in the basement;
• to include a Reflected Ceiling Plan on drawing A108DA indicating the bulkhead over the kitchen joinery, entry hall and bathroom to allow for the services void, to be consistent with the section drawing A201DA;
• to remove the numbers on plans noting amendments made during the hearing (they can be added to the revision notes in the title block if necessary); and
• check plans and correct minor inconsistencies between plans, for example, the layout of the caretaker's apartment and bathroom in unit 5 on level 1 are not shown accurately in section drawing A201DA.

1. The applicant is to file and serve the amended plans with new revision numbers and dates by 18 January 2018.
2. The Council is to file updated and agreed conditions of consent in accordance with this judgment by 25 January 2018.
3. Liberty to restore on two days' notice.

Addendum made on 31 January 2018

1. The applicant filed the amended plans on 11 January 2018 and the Council filed the updated and agreed conditions of consent on 29 January 2018. Accordingly, I made the following orders:

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 2017/194 for the demolition of existing structures and construction of a boarding house with 79 boarding rooms and a retail area on the ground floor, at 295-301 Bay Street, Brighton-Le-Sands, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibit 1, are returned.

Susan O'Neill Commissioner of the Court Annexure A (371 KB, pdf)

Amendments 31 January 2018 - Addendum made on 31 January 2018 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: 31 January 2018