Petersham High Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2024-10-16

Judgment

COMMISSIONER: A site in the Sydney suburb of Petersham is proposed for development involving the partial demolition of an existing building, and alterations and additions for the purposes of co-living housing.
The existing building on the site is known as the former Salvation Army Citadel (former Citadel building) that originally dates from 1926 with additions of later origin, and hardstand car park accessed from Charles Street - a street that runs perpendicular to Parramatta Road in Petersham.
While the existing built form on the site presents as a series of connected spaces comprising one building, it is helpful at this stage to distinguish the former Citadel building as what I will call the 'primary hall', and later additions as 'additions'.
To the north of the site stands a two-storey terrace, adjoining a laneway that provides access to a Council carpark, and to the rear of development fronting Parramatta Road. Beyond that, development located closer to Parramatta Road is two and three-storey commercial development.
To the south of the site stands predominantly single storey semi-detached dwellings and two-storey terraces.
While the former Citadel building dates from 1926, it is not listed for its heritage significance and is not located within a heritage conservation area.
Development application DA/2023/0811 (the DA) proposes alterations and additions to the existing building on the site that includes demolition of internal fabric, and construction of 18 rooms, communal areas, parking and landscaping at 8-10 Charles Street in Petersham.

Whether the use is permitted in the R2 zone

The site is located within an area identified by the Inner West Local Environmental Plan 2022 (IWLEP) as R2 Low Density Residential, in which residential accommodation is prohibited.
The definition of "residential accommodation" in the Dictionary of the IWLEP embraces co-living housing. As such, co-living housing development is prohibited in the R2 zone.
However, according to Petersham High, s 67 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) provides a pathway by which consent may be granted. That pathway is described, in summary, as follows: 1. Section 67 of the Housing SEPP provides that co-living housing may be carried out on land in a zone in which development for the purposes of co-living housing, residential flat buildings or shop top housing is permitted under another environmental planning instrument. 2. According to Petersham High, cl 6.12 of the IWLEP has the effect of permitting residential flat buildings in the R2 zone by operation of subcll (3) and (4) that are in the following terms: (3) Development consent must not be granted to a change of use to the following - (a) multi dwelling housing on land other than in Zone R2 Low Density Residential, (b) residential flat buildings on land other than land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential. (4) Development consent must not be granted to a change of use to residential accommodation of a building on land to which this clause applies unless the consent authority is satisfied - (a) the development will not adversely affect the streetscape, character or amenity of the surrounding area, and (b) the development will retain the form, significant fabric and features of the architectural or historic features of the existing building, and (c) any increase in the floor space ratio will be contained in the envelope of the existing building, and (d) the building was constructed before the commencement of this Plan.
The effect of subcl (3) is to permit development consent for the adaptive reuse of certain existing buildings for the purpose of residential flat buildings in the R2 zone, and the effect of subcl (4) is to provide terms about which the consent authority, or the Court on appeal, must be satisfied for the grant of consent to be enlivened.
Planning expert for the Council, Mr George Youhanna appears unconvinced that the effect of cl 6.12 of the IWLEP is to provide an alternative pathway for consent.
At a fundamental level, Mr Youhanna's written evidence is that his understanding of s 67 is to only permit development of co-living housing in those zones where co-living housing is permitted under the Land Use Table.
However, even if the Court accepts the pathway to permissibility set out by Petersham High, Mr Youhanna's view is the Court could not be satisfied that the proposal retains the form, significant fabric and features of the architectural or historic features of the existing building (subcl (4)(b)). This is because the removal of significant historic architectural fabric would appear to run counter to the conservation of cultural significance sought by the Australia ICOMOS, The Burra Charter: The Australian ICOMOS Charter for Places of Cultural Significance, 2013 (Burra Charter), as the invocation of the term 'significance' in subcl (4)(b) does not appear to Mr Youhanna to be limited to that fabric that is listed for its heritage significance in Sch 5 of the IWLEP. Instead, the removal of fabric significant to an understanding of the former Citadel building adversely affects the quality or amenity of existing buildings in the area, and so contradicts objective (1)(d) of the provision at cl 6.12 of the IWLEP.
The proposal removes original internal fabric including architectural features such as timber roof trusses, decorative ceilings and a substantial portion of the existing roof of the former Citadel building, creating a void that will be visible from locations on Charles Street and from the laneway to the north of the site.
The architect for Petersham High prepared photomontage views of the opening in the roof of the former Citadel (Exhibit F). The images did not demonstrate conformity with the Court's photomontage policy, and Mr Youhanna identified concerns at the manner in which the images at Exhibit F were prepared.
Mr Youhanna believes such an outcome is uncharacteristic in the streetscape and at odds with the local character.
I am satisfied that the development as proposed will not adversely affect the streetscape, character or amenity of the surrounding area when the building on the land to which the clause applies is properly understood.
The former Citadel building has not been identified by the Council for its heritage significance. This means the well established heritage conservation regime at cl 5.10 of the IWLEP does not apply to the site. Where a site is identified for its heritage significance, the regime provides for an assessment of the particular aspects, features or elements of significance, in accordance with a document published by the Department of Planning and Environment titled 'Assessing heritage significance Guidelines for assessing places and objects against the Heritage Council of NSW criteria'.
Absent such an assessment, the significant fabric and features of the site are contested, in this case by planning experts engaged to assist the Court on behalf of the parties.
Mr Youhanna's focus is on the removal of certain internal features such as timber trusses, decorative ceiling and cornices within the envelope of the primary hall opened in 1926. The removal of such fabric is caused by, or results from, the opening of the roof form to provide sunlight to the communal open space at the uppermost level.
Mr Youhanna regards the pitched roof as a significant feature of the former Citadel building. Failure to retain such fabric is a failure to retain the form, significant fabric and features of the architectural or historic features of the existing building. As such, the Court cannot be satisfied that significant fabric and features of the architectural or historic features of the existing building are retained as required by cl 6.12(4)(b) of the IWLEP.
In my view, the former Citadel building is properly understood as an amalgam of eras that have each left their mark on the site in the form of accretions over time into one building that occupies the majority of the site. The effect of these accretions have had the effect of substantially degrading an understanding of the original form of the primary hall that is the former Citadel building, particularly to the west where the accretions adjoin.
The form, significant fabric and features of the existing building, and its architectural or historic features are, on any view, primarily vested in the presentation to Charles Street of the primary hall opened in 1926. This comprises the brick and plaster frontage to Charles Street, including the front stairs, and entry, along with the ornamentation found in lintels, parapets, entablatures and the like, and the side elevations with its rhythm of windows and engaged piers, its eaves and pitched roof that, when taken together, represent an ecclesiastical building form representative of the civic function of the former Citadel building.
I do not consider the opening proposed in the northern pitch of the roof to do other than retain the form, significant fabric and features of the architectural or historic features of the existing building, because that portion that is retained that does not compromise the reading of the former Citadel building by those elements and features set out above.
The roof itself sits behind and below the front façade and those features at [29]. The extent, pitch and material of the roof will be remain to be understood when viewed from the public domain. I accept the submission of Petersham High that while fabric is removed, form is retained.
To the extent the opening in the roof is described as uncharacteristic, it must be said the former Citadel building is itself, highly uncharacteristic in Charles Street. The opening may also be uncharacteristic but it is not, in my view, without a logic or rationale which is likely to be read as such from the public domain.
For these reasons, I am satisfied that the development will retain the form, significant fabric and features of the architectural or historic features of the existing building, in accordance with cl 6.12(4)(b) of the IWLEP.
Perhaps as it is not itself an assessment required of the Court in cl 6.12(4) of the IWLEP, Mr Youhanna's assessment omits to consider those works that are proposed to remove accretions that have been permitted over time; some of which are proposed to be reversed by this proposal, including: 1. The original steps leading to the front door of the primary hall of the former Citadel building are proposed to be reinstated to the south of the front door in substitution of a large and winding concrete ramp that dominates a hardstand car park. 2. A lean-to that protrudes from the southwest of the primary hall of the former Citadel building is to be removed. 3. A large, ageing air handling unit protruding the rear of the site that provides a backdrop to the former Citadel building is proposed to be decommissioned and removed.
At its broadest, the removal of such accretions would appear to achieve objective (1)(d) by ensuring the development does not adversely affect the quality or amenity of existing buildings in the area, and also satisfies me that the development will not adversely affect the streetscape, character or amenity of the surrounding area, in accordance with cl 6.12(4)(a) of the IWLEP, but with such enhancements in presentation to the public domain, may improve the streetscape, character and amenity of the area.
I am also satisfied that the increase in the floor space ratio (FSR) proposed on the site will be contained in the envelope of the existing building, with the exception of the lift overrun that will extend beyond the envelope, in accordance with cl 6.12(4)(c) of the IWLEP, but which does not of itself represent FSR.
For completeness, on the basis of the Statement of Environmental Effects prepared by APRS (Exhibit B Tab 3), which is unchallenged by the Council, I am also satisfied that the building was constructed before the commencement of this Plan, in accordance with cl 6.12(4)(d) of the IWLEP.
The Council argues that, should the Court find the proposed development permissible by virtue of cl 6.12(3) and (4), the Court must then determine the effect of subcl (5) which is in the following terms: The maximum building height and maximum floor space ratio shown for the land on the Height of Buildings Map or the Floor Space Ratio Map do not apply to a building to which this clause applies.
The Council's primary submission is that the controls governing FSR at cl 6.12(5) of the IWLEP are at odds with those at s 68(2)(a) of the Housing SEPP and that accordingly, the provisions of the Housing SEPP prevail to the extent of such an inconsistency.
In the alternative, the Council submits that just as the pathway to permissibility advanced by Petersham High would suggest development for the purposes of residential flat buildings is permitted in the R2 zone, the FSR standard at s 68(2)(a) of the Housing SEPP, which invokes development in a zone in which residential flat buildings are permitted, must also apply.
Section 68(2)(a) of the Housing SEPP provides: … (2) The following are non-discretionary development standards in relation to development for the purposes of co-living housing - (a) for development in a zone in which residential flat buildings are permitted - a floor space ratio that is not more than - (i) the maximum permissible floor space ratio for residential accommodation on the land, and (ii) an additional 10% of the maximum permissible floor space ratio if the additional floor space is used only for the purposes of co-living housing, …
The maximum FSR permitted for residential accommodation on the land by cl 4.4 of the IWLEP, is 0.6:1. Accordingly that is the FSR permitted on the site, before an additional 10% is added for the purposes of co-living housing.
As the architectural plans indicate the proposed development is for a FSR of 0.9:1, the FSR standard is exceeded, and for the Court's power to grant consent to be enlivened, a written request must be prepared in accordance with cl 4.6 of the IWLEP. Absent such a written request, the appeal must be dismissed.
Petersham High submits that the effect of cl 6.12(5) is that both the height of buildings standard, and FSR standard are set aside for a building to which cl 6.12 applies. Simply put, no FSR standard applies.
This is not inconsistent with s 68(2)(a) of the Housing SEPP because residential flat buildings are permitted on the land, by operation of cl 6.12(3) of the IWLEP, and no FSR applies to such development by virtue of subcl (5). Accordingly, the maximum FSR permitted for residential accommodation on the land is either innominate or infinite.
According to Petersham High, such a position is consistent with the decision of the Court in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 to the effect that compliance with a must-not-refuse provision mandates that the Court must not refuse consent to the development on the basis of a more onerous standard as to FSR. In the circumstances of this case, the proposal complies with the maximum floor space permitted for residential accommodation on the land, being a residential flat building, where the maximum permissible FSR for a residential fat building is innominate or infinite.
There is also a broader rationale to such a suspension of height and FSR standards given the objectives of the provision at cl 6.12 include to provide for the adaptive reuse of existing buildings as dwellings, and to retain buildings contributing to the streetscape and character of Inner West. Those existing buildings likely to be suited to adaptive reuse of the kind sought by cl 6.12 may exceed the height and FSR standards that apply to new development.
I accept Petersham High's submission that the provision at cl 6.12(5) of the IWLEP has the effect of setting aside the FSR shown for the land on the relevant FSR map. As such, the proposal is not inconsistent with the non-discretionary standard at s 68(2)(a)(i) of the Housing SEPP. Neither is there an inconsistency between the provisions at s 68(2)(a) of the Housing SEPP, and the provisions at cl 6.12(5) of the IWLEP that requires curing.
As the FSR of the proposal is not inconsistent with the non-discretionary standard, there is no contravention requiring justification in terms such as those at cl 4.6 of the IWLEP.

Landscape requirements are not achieved

The Council contends that the landscaping proposed on the site fails to comply with the non-discretionary standard contained at s 68(2)(f) of Housing SEPP that provides: … (f) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential - the minimum landscaping requirements for multi dwelling housing under a relevant planning instrument, …
Landscaping requirements for multi dwelling housing are not found in the IWLEP, or the Housing SEPP. Instead, parties agree the requirements may be found in Control C19 at Section 2.18.11.5 of the Marrickville Development Control Plan 2011 (MDCP), which relevantly provides: "i. The entire front setback must be of a pervious landscape with the exception of driveways and pathways. ii. In addition to front setback, a minimum 45% of the total site area must be a landscaped area at ground level."
To comply with the above provision, the site would be required to provide at least 315.2m2 of landscaped area at ground level in addition to the landscaping required under Control C19 (i).
Petersham High acknowledges that the non-discretionary standard at s 68(2)(f) of the Housing SEPP is not achieved, and relies on a written request prepared by Mr Andrew Robinson dated 14 October 2024 in accordance with cl 4.6 of the IWLEP (Exhibit D).
The written request on landscaped area identifies a landscaped area of 17.63m2 at ground level, which is 297.57m2 less than that required by the non-discretionary development standard. It is also said that while less than the area required, the landscape area proposed is greater than has been evident on the site prior to now. This is partly due to its former use as a place of public worship with associated car parking.
The written request on landscaped area considers compliance with the standard to be unreasonable or unnecessary as those objectives at Section 2.18 of the MDCP are achieved notwithstanding the non-compliance.
I am satisfied that the written request adequately addresses those matters to be demonstrated at cl 4.6(3) of the IWLEP for the reasons that follow: 1. Firstly, I accept that compliance with the standard is unreasonable or unnecessary because the relevant objectives of the relevant planning instrument at Section 2.18 of the MDCP are achieved for the following reasons: 1. In respect of objective O1, the character of the individual building and the area in this part of Charles Street displays little landscape treatment whatsoever, other than street trees. While the southern part of Charles Street includes some landscaping to the front setback of residential properties, this is limited to a select few properties, and where the majority of those appear to have narrow garden beds similar to what is proposed in the only part of the site with a front setback. 2. In respect of objective O3, the proposal includes recreation space that I accept is outdoor by virtue of it being exposed to the elements through the opening in the roof, and where a mix of paved and soft landscaping is proposed. While this communal open space, located on level 1, has an area of around 100m2, it is co-located with the communal living room, with access to facilities that augment its function, such as laundry, kitchen, clotheslines and other amenities. 3. In respect of objective O4, the site is currently occupied almost entirely by either built form or concrete hardstand that is proposed to be retained, either to conform with the requirements of cl 6.12 of the IWLEP, or to satisfy the non-discretionary development standards in respect of car parking on the site. Within this context, the area of permeable landscaping is increased, and so the hardstand minimised. 4. In respect of objective O5, I note the experts agree the modest landscape planting proposed at ground level will improve the appearance and amenity, subject to pruning and maintenance of the feature tree located in the ground level garden bed adjacent to the ground floor communal open space. 1. Next, I accept and am satisfied that the environmental planning grounds relied on are sufficient to justify the contravening of the standard. The grounds relied on include the difficulty in achieving the landscaped area because of the substantial retention of the existing buildings and hardstand on the site in pursuit of adaptive reuse of the existing building. As such, there is limited opportunity to achieve compliance with the standard without substantial demolition of the existing building fabric. In any event, the alternative location of landscaping proposed in the elevated communal open space provides the amenity otherwise expected to be delivered on the ground level, while a degree of landscaping is provided on the ground level in the form of a small green wall, garden bed and feature tree.
Finally, the written request on landscaped area asserts that the proposed development will be in the public interest because it is consistent with the general principles of the Housing SEPP, and with the objectives of the R2 zone.
Consistency with the Principles of the Policy at s 3 of the Housing SEPP is set out in the written request on landscaped area, summarised as follows: 1. Co-living housing is one form of affordable rental housing that meets the needs of the community, including vulnerable members of the community, low- and moderate-income households, seniors and people with a disability. 2. The individual rooms and communal open space satisfy the requirements of the Housing SEPP, and so achieve the level of amenity expected by the Housing SEPP. 3. The delivery of housing via adaptive reuse in this location makes good use of the existing built form on the site, minimises environmental impacts from demolition and waste, preserves the existing streetscape character and locates housing close to public transport, shops services and the like. 4. Adaptive reuse of the existing building fabric largely maintains the streetscape context that has reflected the local character prior to now, while also introducing new residents to the area in an environment that will be managed via a Plan of Management so as to moderate the social and environmental impacts of the development.
The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide residential development that maintains the character of built and natural features in the surrounding area.
These objectives are said to be achieved by the written request on landscaped area because the proposal is for 18 new private rooms for short-term accommodation close to the Parramatta Road corridor with minimal change to the existing built form. Such accommodation supports other land uses in the area that meet the day-to-day needs of the residents, by development that adapts an existing building that has an established character within the area from 1926 onwards.
I am satisfied that the development will be in the public interest because it is consistent with objectives of the landscape requirements at Section 2.18 of the MDCP, and with the objectives of the R2 zone. In arriving at such a state of satisfaction, I firstly consider the retention of the existing built form to be a matter deserving of some weight. The existing built form occupies the overwhelming majority of the site, when the footprint of building and car parking hardstand are considered. Secondly, while the area is zoned R2 Low Density Residential, it is a highly urbanised area with minimal setbacks to those residential properties in the street, presenting little landscape planting to Charles Street. Thirdly, I accept that the provision of both hard and soft landscaping to the communal open space on level 1 is an appropriate alternative to landscape area at ground level when the site is understood in its highly urbanised context.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP and I find the Court should uphold the written request.

The maximum number of rooms is exceeded

The proposed development also contravenes the number of private rooms permitted in co-living development by proposing 18 rooms. Section 69(1)(c) of the Housing SEPP provides that such development in an R2 zone will not contain more than 12 private rooms.
A written request prepared by Mr Andrew Robinson dated 14 October 2024 addresses the contravention of the maximum number of rooms standard in accordance with cl 4.6 of the IWLEP (Rooms request) (Exhibit E).
The Rooms request asserts that as the development standard at s 69(1) of the Housing SEPP lacks objectives, the objective can be inferred from the terms of the standard, which is to limit the total room capacity or population density of such development and the scale of the built form in order to achieve compatibility with the objectives of the R2 zone. Those limits are only reasonable where development of such scale might result in adverse impacts on the R2 zone due to noise generation and acoustic amenity, or traffic and parking demand. However, in this case, the site is located on the edge of the R2 zone, and in close proximity to the Parramatta Road corridor.
The Rooms request also surmises that a development standard limiting the scale of co-living development may well assume new development in an R2 zone where a scale greater than 12 rooms may adversely impact the character and amenity of such an area. However, in the circumstances of this case, the scale of the development envelope is extant, and has been a feature of the streetscape for many years. As such, the scale of the development in the R2 zone is not a result of the number of rooms, but the reverse, where the existing scale of the former Citadel building accommodates the number of rooms proposed.
Next, the Rooms request also relies on a second reason to assert that compliance with the standard is unreasonable or unnecessary. The second reason cites the former use of the site as a place of worship, within a zone that permitted such a use at the time, and for a purpose that, if revived today, has the potential to generate a building on the site of similar scale and resulting in considerable traffic and noise. So understood, the zoning of the land is unreasonable or inappropriate such that the development standard is also unreasonable or unnecessary.
I note here the second reason summarised above cites what is known as the 'Fifth Wehbe way', in which compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate (see Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [49]).
The Fifth Wehbe way is limited, as it does not permit general inquiry into the appropriateness of the development standard for the zoning, and an objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (Wehbe at [50]).
While there are limits to the Fifth Wehbe way, it is not necessary to consider this reason, as I accept the first reason advanced by the Rooms Request.
I accept that the objective of the standard may be described to limit both the number of people and the physical bulk and scale of a building envelope in which the number of rooms is contained. I also consider the two to be inter-related such that the number of people to be accommodated within a certain building envelope is a factor that determines the bulk and scale of that building envelope, by virtue of the number of rooms contained within that building envelope. Where the physical scale of the building envelope pre-exists, the relationship is inverted; the bulk and scale of the existing building envelope permits a certain number of people to be accommodated in rooms that, in turn, are to have an area between 12-25m2 (s 69(1)(a) of the Housing SEPP). I am satisfied that compliance with the maximum number of rooms standard is unreasonable or unnecessary.
I am also satisfied that the environmental planning grounds are sufficient to justify the contravening of the standard for the reasons advanced in the Rooms request, that are not wholly unrelated to the reasons at [71]. Those reasons are: 1. The adaptive reuse of the building on the site retains the existing built form that has been an aspect of the streetscape over many years, and which is consistent with the objectives at cl 6.12 of the IWLEP. 2. Given the existing bulk and scale of the building envelope on the site, a limit of 12 rooms does not utilise the floor area available, and does not represent an economic or sustainable reuse of the site given the evident demand for affordable rental accommodation in the area. 3. The proposal is consistent with the objectives of the R2 zone. 4. On the basis of the Acoustic Report and Traffic and Parking Impact Assessments prepared in support of the proposal, the additional resident population accommodated in the additional rooms beyond the number permitted is unlikely to result in unreasonable amenity impacts in terms of noise, traffic or parking. 5. Under the test applied in Nakhoul v Canterbury-Bankstown Council [2020] NSWLEC 1320, (which in turn cites the more familiar Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75), the proposal is not objectionable in itself.
I accept that the proposal is premised on the utilisation of an existing building envelope that facilitates the number of rooms, the size of which is nominated by the development standard at s 69(1)(a) of the Housing SEPP. The adaptive reuse of the existing building obviates, to some degree, the question of the physical bulk and scale resulting from the number of rooms proposed as the number of rooms proposed are wholly contained within an existing building envelope that is uncharacteristic of the otherwise residential character of Charles Street, and yet has been acknowledged as a part of it in some form since 1926. There is no additional gross floor area proposed, and no addition to the bulk and scale of the proposal, beyond a stair and roof over the lift overrun. These additions are minor and more than offset by the reduction in bulk and scale proposed, such as a prominent fibre cement addition to the southeast.
I also accept that the potential impact attributable to an additional resident population is sufficiently addressed firstly by the Acoustic Report prepared by PKA dated 3 July 2024 (Exhibit C, Tab F), and a subsequent addendum of the same author (Exhibit C, Tab G) that proposes restricting the use of the communal open space on Level 1 between 10pm-7am. Secondly, I note the conclusions of the Traffic and Parking Impact Assessment (Traffic Report) (Exhibit C, Tab E) are that parking requirements found in the Housing SEPP are achieved, and traffic generated by the development will be minor, especially when discounted by existing vehicle movements.
Accordingly, I am satisfied that the Rooms request adequately addresses those matters to be demonstrated by cl 4.6(3) of the IWLEP.
Having already advanced reasons that the proposal is consistent with an inferred objective of the standard, the Rooms request identifies the Principles of Policy at s 3 of the Housing SEPP as a proxy for objectives with which the proposal should be consistent to demonstrate the development will be in the public interest, as required by cl 4.6(4)(b) of the IWLEP.
The Principles of Policy at s 3 are: (a) enabling the development of diverse housing types, including purpose-built rental housing, (b) encouraging the development of housing that will meet the needs of more vulnerable members of the community, including very low to moderate income households, seniors and people with a disability, (c) ensuring new housing development provides residents with a reasonable level of amenity, (d) promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services, (e) minimising adverse climate and environmental impacts of new housing development, (f) reinforcing the importance of designing housing in a way that reflects and enhances its locality, (g) supporting short-term rental accommodation as a home-sharing activity and contributor to local economies, while managing the social and environmental impacts from this use, (h) mitigating the loss of existing affordable rental housing.
I accept that the proposal is consistent with the Principles identified above as the development introduces affordable rental housing with reasonable amenity, in an area that is accessible, and by making good use of existing built form and infrastructure. The adaptive reuse of existing building fabric minimises environmental impacts resulting from demolition for new development and reinforces the importance of housing reflective of its locality by retaining and enhancing the existing streetscape of Charles Street. Finally, the proposal is supported by a Plan of Management likely to avoid or mitigate adverse impacts from its use.
Likewise, I accept the proposed development is consistent with the objectives of the R2 zone by providing housing within a low-density zone and in a manner that maintains the character of built form in Charles Street by retaining the existing building envelope on the site.
For the reasons above, I am satisfied that the proposed development is in the public interest because of the consistency demonstrated with the relevant principles and objectives.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP. I find it does not and so find the Rooms request should be upheld.

Provisions of the Housing SEPP

As stated earlier, the non-discretionary standards at s 68 of the Housing SEPP are for particular matters that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. A note that appears in the provision also invokes s 4.15(3) of the EPA Act to the effect that that consent may be granted notwithstanding a non-discretionary standard is not complied with.
I have dealt with FSR on the site at [38]-[49], that is the subject of the standard at s 68(2)(a).
The next relevant standard at s 68(2)(c) requires co-living housing with more than 6 rooms to provide communal living area of at least 30m2 plus a further 2m2 per private room in excess of 6 rooms, with a minimum dimension of no less than 3m. There is no dispute that the proposal complies with this requirement, and architectural drawing DA1.03 states, uncontested, that 55m2 of communal living area is provided.
Communal open space is required to achieve an area of 20% of the site area, no less than 3m in width, according to s 68(2)(d). While the proposal complies in numerical terms, the Council argues that the communal open space located on the ground floor is a poor outcome akin to a basement, and that the communal open space located at Level 1 lacks an outlook given the enclosure created by the roof surrounding.
When the particular arrangement of raised landscaping is properly understood at the first floor communal open space, I consider the access to views and sunlight to provide a reasonable level of amenity, which is the level of amenity sought by the principle of the Policy at s 3(c) of the Housing SEPP.
The ground floor communal open space is somewhat enclosed, with two openings to the east, one of which is full height and addresses the proposed landscaped area. The width is sufficient for layout of furniture, while maintaining access to the waste room and bicycle parking. Once again, I consider a reasonable level of amenity to be achieved, with some degree of choice between the two communal open spaces on offer to residents. While Mr Youhanna cites objectives from the ADG on the function of open space, such standards were, for whatever reason, not seen by the drafters of the Housing SEPP as applicable to co-living housing.
The relevant development standards at s 69 of the Housing SEPP that I have not otherwise addressed prior to now are satisfied, including the minimum lot size for such development in the R2 zone (subs (1)(b)(i)), the provision of a workspace for the manager (subs (1)(d)), adequate bathroom, laundry and kitchen facilities are available to each occupant (subs (1)(f)), a limitation is place on the number of occupants per room by the proposed Plan of Management (subs (1)(g)), adequate bicycle and motorcycle parking spaces are depicted on the architectural plans when regard is had to the Traffic Report that cites the MDCP (subs (1)(h)).
Consent is also precluded unless the consent authority, or the Court on appeal, has considered those matters at s 69(2) of the Housing SEPP. I am assisted by the agreement of the planning experts at par 3.4.1 that the setbacks are acceptable (subs (a)(i)), and by views from the sun diagrams prepared by the architects JSA Studio, to be satisfied that the communal living area on Level 1 will receive well in excess of 3 hours of direct solar access between 9am-3pm in mid winter (subs (c)).
For reasons set out at [61] and [78]-[79], I have found that the design of the building, being predominantly the existing building, is compatible with the desirable elements of the local character (s 69(2)(f)(i)).

IWLEP

The proposal is supported by Stormwater Plans prepared by Engineering Studio (Exhibit B, Tab 5) that documents the reduction in impervious area from 99.85% of the site, to 97.85% as a result of increased landscaped area.
Additionally, the parties propose a condition of consent to require rainwater re-use tank (or tanks) with a minimum capacity of 5000 litres to be incorporated into the development within the side passage along the northern boundary of the site, with the water to be plumbed and used for toilets, clothes washing machines and external taps.
On the basis of the stormwater plans and the proposed conditions of consent in respect of stormwater, I am satisfied that the development maximises the water permeable surfaces, within an otherwise highly constrained site, and where the location of a rainwater tank or tanks is agreed, and required by condition of consent so as to avoid a significant adverse impact from stormwater runoff to adjoining properties and other areas, in accordance with cl 6.3 of the IWLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

Section 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated.
I accept the statements made on p 19 of the Statement of Environmental Effects (Exhibit B, Tab 3) as to why the historical uses on the site are unlikely to have rendered the site contaminated. When considered in conjunction with a proposal that does not include substantive disturbance to the existing ground surface, I am satisfied the site is suitable for the purpose proposed to be carried out.

Public interest

The Council contends that the proposal is not in the public interest, primarily because of the large number of concerns expressed in public submissions received in response to notification that occurred between 25 October 2023 and 15 November 2023.
Resident concerns are summarised, by no means comprehensively, at [12]. A number of the concerns deal with the scale of development proposed and the potential for that to adversely impact the residents of Charles Street. I have addressed the question of bulk, scale and character at [71]-[73].
I have addressed concerns at the potential for the amenity of residents of Charles Street at [72(4)].
Where concerns are held for anti-social behaviour, I note the Court has long held that an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. Such an evaluation requires reference to evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality. Clearly, fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 4.15 of the EPA Act: Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 at [192]-[195].
I have read and considered the written submissions of residents, and sought to address a number of the concerns by reference to the evidence before the Court.
I have found those issues that have the potential to impact residents are satisfactorily addressed and it is my considered opinion that the proposed development is deserving of the grant of consent, subject to conditions of consent.

Conclusion

The Court, exercising its power under s 39(2) of the Land and Environment Court Act 1979, approves the amending of development application DA/2023/0811 by the written requests prepared in accordance with cl 4.6 of the IWLEP, dated 14 October 2024, which I regard as no more than minor.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application DA/2023/0811 for partial demolition of the existing structures and alterations and additions to the former Salvation Army Citadel and adjoining two-storey building and adaptive reuse as a co-living housing development incorporating 18 rooms, communal areas and parking for 4 cars, 3 motorcycles and 6 bicycles at premises known as 8-10 Charles Street, Petersham is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All Exhibits are returned, except for Exhibits A and B. T Horton Commissioner of the Court

Annexure A 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: 25 November 2024

(2002) 121 LGERA 101

(2007) 156 LGERA 446

At a glance

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Judgment (11 paragraphs)

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Cases Cited (8)