Rianon Mateer v Lane Cove Council

Land and Environment Court (NSW)|2014-07-31

Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 10115 of 2014

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 14/4 for the adaptive re-use of a commercial building for use as a boarding house, including alterations and additions to the existing building (the proposal), at 1 Johnston Lane, Lane Cove West, by Lane Cove Council (the Council).
The appeal was subject to mandatory conciliation on 16 May 2014, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached during the conciliation conference, the conciliation conference was terminated, pursuant to s34(4) of the LEC Act.

Issues

The Council's contentions in the matter can be summarised as:

The proposal is an over-development of the site, because the proposal does not comply with the floor space ratio (FSR) development standard for the site and the request to contravene the FSR development standard is not well founded; and
The site is unsuitable for the proposed development because it is situated adjacent to a packaged liquor outlet and a service station.

The site and its context

The site is on the eastern side of Johnston Lane, Lane Cove West, between Beatrice and Penrose Streets. To the east of the site is a service station, fronting Burns Bay Road and to the north of the site is a drive through packaged liquor outlet, between Johnston Lane and Burns Bay Road.
On the eastern side of Johnston Lane, between Beatrice and Penrose Streets, there are residential dwellings which back onto Johnston Lane, some with garages accessed from Johnston Lane. The existing building overlooks the rear yards of the residential dwellings opposite the site.
The site contains a three storey commercial building constructed in 1968, with an undercroft level of parking at ground level and two levels over.

The proposal

The proposal has been amended following the conciliation conference.
The proposal is to partially infill the undercroft level on the northern side, to provide two accessible rooms with courtyards, a manager's unit with a courtyard, a common room opening onto an outdoor space and a laundry. The southern side of the undercroft is to be used for parking. Level 1 is to be divided into 10 rooms and Level 2 is to be divided into 10 rooms.
The envelope of the existing building is to be retained, with changes to window openings, including changes to the dimensions of window openings, glass bricks in window openings on the northern elevation and screens added to window openings to a height of 1500mm above finished floor level on the western elevation to prevent overlooking of the backyards of residential dwellings opposite the site.

Planning Framework

The proposal is subject to the provisions of the State Environment Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), at cl 26(e).
The Council agreed that the proposal complies with the parking requirements of the SEPP ARH at cl 29(2)(e)(i) of at least 0.2 parking spaces for each boarding room.
The Council agreed that the proposal complies with the requirements of SEPP ARH at cl 30(1) to provide a communal living room, for the minimum size of rooms, for the maximum occupancy rate per room, for the bathroom and kitchen facilities within the boarding house and for a manager's room.
The site is zoned B1 Neighbourhood Centre, pursuant to Lane Cove Local Environment Plan 2009 (LEP 2009) and a boarding house is permissible in the B1 zone. The objectives of the zone in the Land Use Table of LEP 2009 are as follows: · To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. · To encourage urban design maximising attractive public domain and adequate circulation space throughout the neighbourhood centres for current and future users. · To ensure that landscaping is a significant element in public and private development viewed from the public domain.
A consent authority cannot refuse consent to development to which Division 2 of SEPP ARH applies on the grounds of FSR, if the proposal complies with the maximum FSR development standard, at cl 29(1)(a). The maximum FSR development standard for the site is 1:1 (FSR Map of LEP 2009 Sheet FSR_001, exhibit 4, tab 14) and the proposal has a FSR of 1.47:1. The objective of the FSR development standard, at cl 4.4(1)(a) of LEP 2009, is to ensure that the bulk and scale of development is compatible with the character of the locality. The applicant has provided a written request to contravene the maximum FSR development standard, pursuant to cl 4.6 of LEP 2009 (exhibit A, pp 8-10).
Clause 4.6 of LEP 2009, Exceptions to Development Standards, relevantly includes the following in relation to a contravention of a development standard imposed by a planning instrument: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence.
The aims of LEP 2009 at cl 1.2(j) include, in relation to housing, to increase the number of affordable dwellings in Lane Cove and to promote housing choice.

Public submissions

Two resident objectors provided evidence at the commencement of the hearing and the Court, in the company of the parties, viewed the site from the backyard of 9 Wood Street. Their objections can be summarised as:

the area is not suitable for a boarding house as many children live in Lane Cove West and it is a family orientated area;
the proposal is unlikely to be patronised by students because it is two bus rides to the nearest university;
the likely residents will be single males, transient, possibly unemployed, potentially with drug and alcohol issues and this will change the character of the family orientated, quiet, safe neighbourhood of Lane Cove West;
the proposal is next door to a liquor store and a women's refuge and this is an inappropriate location for a boarding house;
there are no opportunities for employment in Lane Cove West, as required by SEPP ARH;
the occupants of the boarding house will overlook the rear yards of the dwellings fronting Wood Street;
an increase in residents in Johnston Lane will result in more rubbish bins to be collected and this will exacerbate an existing rubbish problem in the laneway; and
smokers are likely to congregate in Johnston Lane.

Expert evidence

Expert evidence was provided on behalf of the applicant by Mr Andrew Martin (planning) and Dr Judy Stubbs (social planning). Expert evidence was provided on behalf of the Council by Mr Rajiv Shankar (planning) and Dr Alison Ziller (social planning).
The experts agreed that the proposal is appropriately described as a 'new generation' boarding house, as each room includes a bathroom and kitchenette.

Contravention of the height of buildings development standard

Evidence

According to the applicant's written request for the contravention of the maximum FSR development standard by Mr Martin (exhibit A, pp 8-10), it is unreasonable and unnecessary for the proposal to comply with the maximum FSR development standard for the following reasons:

the bulk and scale of the existing building is compatible with the general locality;
the partial infill of the undercroft area does not add to the bulk of the building;
there is no change to the overall height of the building (where height is one measure of the scale of the building);
there are no adverse amenity impacts associated with the contravention of the maximum FSR development standard.

The planning experts agreed that the proposal does not increase either the footprint or the height of the existing building and the FSR of the existing building is 1.27:1.
According to Mr Shankar, the proposal has to be considered in its context and not in relation to the non-compliant FSR of the existing building. In his view, the existing building is excessive in bulk and scale in the context as it is the only building of three storeys and there is no justification for increasing the gross floor area of the existing building.
According to Mr Martin, the added bulk associated with the increase in gross floor area is confined the the infill area of the undercroft and this will not add to the visible bulk of the existing building.
Mr Shankar agreed under cross examination that the proposal will result in very little, if any, change in the overall bulk of the building when viewed from Johnston Lane. In his view, the northern infill wall on the ground level will be partially visible above the proposed fence on the northern boundary.

Findings

In order for development consent to be granted for a development that contravenes a development standard in LEP 2009, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2009); that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2009); and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2009).
The objective of the FSR development standard, at cl 4.4(1)(a) of LEP 2009, is to ensure that the bulk and scale of development is compatible with the character of the locality.
I accept the agreed evidence of the planning experts that the proposal will result in very little change in the overall bulk of the building when viewed from Johnston Lane. I accept Mr Martin's uncontested evidence that the proposal does not create any additional amenity impacts on adjoining development. For these reasons, I am satisfied that the bulk and scale of the proposal, being predominately the bulk and scale of the existing building, will remain compatible with the character of the locality.
The written request seeking to justify the contravention of the FSR development standard adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b) and the proposal is in the public interest because it is consistent with the objective of the maximum FSR development standard and the objectives for development within the B1 zone, in which the development is proposed to be carried out.

The suitability of the site

The Council's contention, in regard to the unsuitability of the site, is that the proposal is an intense form of residential accommodation and this is not compatible with surrounding land uses, including the service station and the liquor outlet and access to the proposal is via a narrow laneway.

Evidence

The social planning experts agreed on the following:

According to the Australian Bureau of Statistics 2011 Census of Population and Housing SA1 extract for the Lane Cove West area (exhibit N), of the total 115 dwellings in the area, 48 dwellings are rented from a State housing authority, which is equivalent to 42% of dwellings in the area; and
the likely future occupants of the boarding house will be in the low to moderate income range between $60,000 and $92,000 per annum.

According to Dr Ziller, noise generated by the use of the service station may disturb the boarding house residents occupying rooms on the eastern side of the proposal and Dr Stubbs was unable to form a view on this issue as she said it is a matter for an acoustic expert.
According to Dr Stubbs, based on the SA1 extract for the Lane Cove West area (exhibit N), housing for the low income range demographic is catered for in the Lane Cove West area, however there is a gap in affordable housing in the area for those within the low to moderate income range. The social planning experts agreed that those in the low to moderate income range include essential workers, such as teachers, childcare workers, emergency service workers, aged care workers, shop assistants, clerks and clerical and retail staff.
The social planning experts agreed that the close proximity of the packaged liquor outlet poses a risk to the future occupants of the proposal of alcohol related harm, however they disagreed on the quantum and significance of that risk; Dr Stubbs believing that the benefit of the proposal outweighed the slightly increased risk of alcohol related harm for the future occupants of the proposal and Dr Ziller believing that the site was unsuitable for use as a boarding house, due to its location adjacent to a packaged liquor outlet.
In Dr Stubbs' view, occupants in the low to moderate income range, living in the Lane Cove area, in a purpose built new generation boarding house were not likely have any particular disadvantage or vulnerability associated with elevated levels of alcohol related harm and therefore were unlikely to be at any greater risk than the general population, however she acknowledged that the potential demography of the future occupants may result in a slightly elevated risk of alcohol related harm. In Dr Ziller's view, the residents of a boarding house are likely to experience greater degrees of stress, when compared to the general population, due to insecurity of tenure in a boarding house and lack of space and privacy; and this greater degree of stress may lead them to misuse alcohol, which may contribute to behavioural issues in the boarding house.
The social planning experts agreed that proximity is a factor is alcohol consumption and while there is no social gradient to risky drinking (although there is an established relationship between relative disadvantage and alcohol related harm), there is a gender difference, as men are more likely to engage in risky drinking at all socio-economic levels.
According to Dr Stubbs, the impact of the proximity of the packaged liquor outlet would be difficult to quantify from relevant studies and is likely to be slight and while accessibility to alcohol is an important factor in risky drinking, there is no evidence to support a view that being within 20 metres of a packaged liquor outlet has any greater impact than being within 100 or 200 metres of a packaged liquor outlet, as the relevant scale for analysis in the published literature does not test this.
In support of her view, Dr Stubbs added a table to her evidence which summarised the configuration, occupancy and facilities of two existing boarding houses she is familiar with, one at Birchgrove and one at Rozelle (appendix 3, exhibit 6). Dr Ziller noted that it is difficult to draw any conclusions from Dr Stubbs' table, as the evidence is anecdotal and the gender balance in the two examples may change over time.
In regard to Johnston Lane, Dr Ziller was concerned that the manager's room would not have a view of the laneway and entry. Dr Stubbs noted there is a streetlight near the entry to the site, it is a low traffic environment and there is no evidence of crime hot spot in the immediate locality.
In Dr Ziller's view, the proposal may have up to 44 people occupying 24 rooms with only a small communal space. This may result in occupants using outdoor spaces nearby.

Findings

It is not clear from Council's contention why the Council is of the view that the service station and the proposal are incompatible. The only reference to the incompatibility of the two uses is raised by Dr Ziller, in relation to the potential for noise from the use of service station to disturb the future occupants of the proposal.
Weight must be given to the fact that a boarding house is a permissible use in the B1 Neighbourhood Centre zone (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at 117-8) and consequently it was envisaged that a boarding house would be adjacent to business premises and not necessarily adjacent to residential uses. The service station is only one of a number of noise sources in the neighbourhood centre, which is positioned along busy Burns Bay Road. I am satisfied that the proximity of the proposal to the service station is acceptable and that the potential for noise from the use of the service station to disturb the future occupants of the proposal is not so significant that it amounts to a reason to refuse consent to the proposal.
I accept the social planning experts' agreement that the close proximity of the packaged liquor outlet adjacent poses a risk to the future occupants of the proposal of alcohol related harm and Dr Stubbs' opinion that there is no evidence to support a view that being within 20 metres of a packaged liquor outlet has any greater impact that being within 100 or 200 metres of a packaged liquor outlet, as the relevant scale for analysis in the published literature does not test this. Nevertheless, I accept the social planning experts' view that locating a boarding house in proximity to a packaged liquor outlet may increase the risk of alcohol related harm, although this increase is difficult to quantify from relevant studies.
I understand that while there is no social gradient to risky drinking, there is an established relationship between relative disadvantage and alcohol related harm. In regard to relative disadvantage, I accept the agreed evidence of the social planning experts that the future occupants of the boarding house will be in the low to moderate income range and the rent level is likely to exclude those in the very low income range from occupying the proposal. However, excluding occupants in the very low income range does not eliminate the risk of alcohol related harm, as those in the low to moderate income range may also be relatively disadvantaged.
I prefer Dr Stubbs' view that the future occupants of the proposal will be less likely to have any particular disadvantage or vulnerability associated with elevated levels of alcohol related harm because there is a gap in affordable housing in the Lane Cove area for those within the low to moderate income range and a purpose built, new generation boarding house with private kitchenettes and bathrooms is an attractive and affordable housing option. I do not accept that the stress levels of the occupants of a new generation, purpose built boarding house would necessarily be higher than the stress levels of the general population, for example compared to the occupants of a rented studio apartment in a residential apartment building.
I accept the agreed evidence that men are more likely to engage in risky drinking. According to the 2011 census data, there is a greater proportion of males occupying boarding houses (Ziller report p 5, exhibit 6), however I accept Dr Stubbs' view that the evidence is not conclusive regarding the likely gender mix for new generation boarding houses (Stubbs report par 51, exhibit 6).
I am satisfied that the Plan of Management and house rules for the proposal and the availability of a manager will provide adequate mechanisms for dealing with any anti-social behavioural issues, if necessary.
There is no evidence to suggest that the occupants of the proposal are necessarily at a greater risk of harm caused by the proximity of the boarding house to the packaged liquor outlet when compared to the residents of Lane Cove West generally, including the 42% of residents in public rented housing, who are also within walking distance of the packaged liquor outlet. Furthermore, the provisions of SEPP ARH in relation to boarding houses do not contemplate a higher threshold, compared to other residential development, for the location of boarding houses in proximity to packaged liquor outlets.
I accept Dr Stubbs' view that there is a streetlight near the entry to the site, it is a low traffic environment and there is no evidence of crime hot spot in the immediate locality and for these reasons I am satisfied that the location of the proposal, accessed from Johnston Lane, is acceptable.
I accept the agreement of the parties that the proposal complies with the requirements of SEPP ARH for the provision and size of communal living areas, the minimum size of rooms, the maximum occupancy rate per room, the provision of facilities, a manager's room and parking.

Plan of Management

The parties disagreed on whether a Residential Tenancy Agreement or an Occupancy Agreement should be imposed by the agreed Conditions of Consent at condition 1A and they disagreed on the proposed length of tenure to be incorporated into the Plan of Management.
The Council does not agree to the applicant's proposed Residential Tenancy Agreement model and length of tenure of a minimum term of 6 months with a 12 month lease option. The Council wants the Standard Occupancy Agreement (exhibit M) to be imposed with a 3 or 6 month tenure.
Given that boarding house accommodation is intended to be flexible and according to Dr Stubbs, it 'can be stepping stone to other forms of rental housing' (exhibit 6, p 17), it is my view that it is important to preserve the flexibility provided by boarding house accommodation and for this reason, the Standard Occupancy Agreement and a 3 or 6 month tenure is to be imposed by condition 1A.

Conclusion

The written request by the applicant to contravene the maximum FSR development standard in LEP 2009 adequately addresses the matters required to be demonstrated and the proposal is consistent with the objective of the maximum FSR development standard, to ensure that the bulk and scale of development is compatible with the character of the locality, as the planning experts agreed that the proposal fundamentally maintains the bulk and scale of the existing building.
A number of residents expressed concern regarding the character of the future occupants of the proposal. I have afforded little weight to the subjective fears and concerns of the resident objectors in regard to the potential for the proposal to change the character of the family orientated, quiet and safe neighbourhood of Lane Cove West (New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 at 61).
While I accept the social planning experts' view that locating a boarding house in proximity to a packaged liquor outlet may increase the risk of alcohol related harm, I have balanced the possibility of a slightly increased risk of alcohol related harm against the benefit of providing affordable housing in the Lane Cove area for those in the low to moderate income range and in doing so, I have given weight to the fact that the development is consistent with the aim of LEP 2009 to increase the number of affordable dwellings in Lane Cove and to promote housing choice; and that a boarding house is a permissible use in the B1 Neighbourhood Centre zone. It is my view that the benefit of providing flexible, affordable housing for those in the low to moderate income range, including essential workers, outweighs the concern over the possibility of an increased risk of alcohol related harm to the future occupants of the proposal.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No.14/4 for the adaptive reuse of an existing commercial building for a boarding house, including alterations and additions, is approved, subject to the conditions of consent in Annexure A. 3. The exhibits, other than exhibits 2, A and C, are returned.

Susan O'Neill Commissioner of the Court Annexure A (61.9 KB, pdf) Annexure B (70.4 KB, pdf)

Amendments 24 October 2017 - published Annexures 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: 24 October 2017

At a glance

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Judgment (18 paragraphs)

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