Development Application: additions and alterations to an existing boarding house
SEPP Affordable Rental Housing
local character at front and rear
Source
Original judgment source is linked above.
Catchwords
Development Application: additions and alterations to an existing boarding houseSEPP Affordable Rental Housinglocal character at front and rear
Judgment (22 paragraphs)
[1]
Background
COMMISSIONER: John Spiteri (the Applicant) has appealed a decision by Randwick City Council (the Respondent) to refuse his development application DA/120/2016 for alterations and additions to an existing boarding house at 236 Alison Road, Randwick (the Subject Site).
The appeal comes to the Court pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Subject Site, legally known as Lot 1 in DP75974, is rectangular in shape with a width of 6.095m and a depth of 46.52m. The total site area is 279.8 m².
The proposed development includes a new communal room, the addition of three new boarding rooms, and modifications to three existing rooms, which would increase the number of rooms from seven to ten rooms. The new rooms are proposed to be distributed over two levels in a rear two storey extension to the existing building.
No new car spaces are proposed, but a motorcycle/moped parking space is proposed within the front setback, along with bicycle storage facilities.
The Subject Site is located at the eastern end of Alison Road within Randwick. To the west of the Subject Site is an adjoining semi-detached terrace dwelling. To its east, the front portion of the Subject Site adjoins a freestanding Victorian house at 238-242 Alison Road. This dwelling is a heritage item identified within RLEP (Item 262).
Also to the east, but adjacent to the rear portion Subject Site, is a sandstone cottage at 60B Dutruc Street, and a terraced pair dwelling at 62-64 Dutruc Street. These structures together are identified as a heritage item within schedule 5 of RLEP (Item I363).
Notwithstanding the location of several heritage items adjacent to the Subject Site, and its location adjacent to the St Mark's Heritage Conservation Area, there was no specific heritage contention raised by the Respondent in these proceedings. However, the Respondent did identify within a contention concerning local character that, while the Subject Site is not a heritage conservation item, and does not fall within a heritage conservation area, the existing dwelling on the Subject Site is a substantial period dwelling with heritage interest of general nature.
The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 14 June 2017. The Parties were unable to resolve the contentions in this matter during the conference, and so the conciliation process was terminated.
On 12 July 2017, the Court granted leave for the Applicant to rely upon amended plans.
An inspection of the Subject Site was undertaken as part of this appeal hearing, and submissions were received from the following local residents:
1. Mr Bill Fleming of 66 Dutruc Street, Randwick, who said that the proposed extension to the boarding house at 236 Alison Road would give rise amenity impacts within the rear of his property, notably in relation to his family use of a garden area at the rear of his property. In a written submission, Mr Fleming had noted that the proposed development would also cause a loss of solar access to areas within his house, notably within its kitchen and dining room areas, and may impact on the value of his property;
2. Mr Ian Andrews of 64 Dutruc Street, Randwick, who said that the proposed development was out of character with the local area, notably because of its potential impact on the rear, open communal space, the outlook to which was shared by the properties neighbouring the rear of the Subject Site. Mr Andrews also said that the proposed development would give rise to other impacts at the rear of his property including impacts on his views to vegetation, overshadowing of his rear yard, and parking impacts within the street. Finally Mr Andrews said that, in his opinion, the proposed development did not meet to requirements of the State Environmental Planning Policy for Affordable Rental Housing (SEPP ARH);
3. Gordon Hughes and Sarah Casey, of 234 Alison Road, Randwick, who said that the proposed development would impact their enjoyment of their dwelling adjacent to the Subject Site. They said that, in their view, the proposed development would give rise to solar access impacts, and undesirable changes to the character of the area, notably in relation to the rear shared common green space. They also said that, in their opinion, the proposed development was not consistent with the requirements of the SEPP ARH, nor with the provisions of the Randwick Development Control Plan and Randwick Local Environment Plan.
[2]
Environmental Planning and Assessment Act 1979
The Environmental Planning and Assessment Act 1979 (EP&A Act) Section 79C(1) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.".
Sections 79C(2) and 79C(3) of the EP&A Act provides as follows in relation to non-discretionary development standards within an environmental planning instruments or regulations:
(2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:
(a) is not entitled to take those standards into further consideration in determining the development application, and
(b) must not refuse the application on the ground that the development does not comply with those standards, and
(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 80 is limited accordingly.
(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:
(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and
(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.
Note. The application of non-discretionary development standards to complying development is dealt with in section 85A (3) and (4).
Section 79C(3A) Development Control Plans further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
[3]
State Environmental Planning Policy (Affordable Rental Housing) 2009
The proposed development is for construction of a boarding house and so requires consideration under Part 2 Division 3 of 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.
Under cl8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevail to the extent of the inconsistency.
Also of relevance in this case are the provisions of cl29 of SEPP ARH, which provides standards that cannot be used to refuse consent for developments the subject of the SEPP. This clause provides:
29 Standards that cannot be used to refuse 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
(b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development 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:
(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or
(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.
(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:
(a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,
(b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,
(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,
(d) private open space if at least the following private open space areas are provided (other than the front setback area):
(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,
(ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,
(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, and
(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,
(f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:
(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or
(ii) 16 square metres in any other case.
(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.
(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
SEPP ARH cl30 provides standards for boarding houses, as follows:
(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:
(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,
(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,
(c) no boarding room will be occupied by more than 2 adult lodgers,
(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,
(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,
(f) (Repealed)
(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,
(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.
(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
SEPP ARH cl30A requires of that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
[4]
Randwick Local Environment Plan 2012
Development on the Subject Site is subject to the Randwick Local Environment Plan 2012 (RLEP).
Under RLEP the Subject Site is zoned R3 Medium Density Residential, the objectives of which are to:
provide for the housing needs of the community within a medium density residential environment.
provide a variety of housing types within a medium density residential environment.
enable other land uses that provide facilities or services to meet the day to day needs of residents.
recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
protect the amenity of residents.
encourage housing affordability.
enable small-scale business uses in existing commercial buildings.
The use of the Subject Site for a boarding house is permissible within the R3 zone.
Relevant provisions within RLEP include:
1. clause 4.3, which provides the height of buildings control the on the subject site;
2. clause 4.4, which provides control for floor space ratio (FSR) on the subject site;
3. clause 5.9, which provides controls in relation to preservation of trees and vegetation;
4. clause 5.10, which provides controls published a heritage conservation;
5. clause 6.2, which provides controls in relation to earthworks;
6. clause 6.4 which provides controls in relation to stormwater management.
Clause 4.6 of RLEP provides for circumstances in which exceptions may be sought to development standards. The objectives of cl4.6 are:
(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.
Clause 4.6(2) of RLEP provides that:
(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.
The development standards of SEPP ARH are not expressly excluded from the operation of cl4.6(2) of RLEP.
Clause 4.6(3) of RLEP provides that:
(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.
The Applicant has submitted two written requests under cl4.6 of RLEP to vary the development standards applicable to the proposed development under cl30(1)(h) of SEPP ARH in relation to the provision of motorbike parking as part of the proposed development.
In considering a written request made under cl4.6, the provisions of cl4.6(4) and cl4.6(5) are relevant. These are:
(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.
[5]
Randwick Development Control Plan 2013
Development on the Subject Site is also subject to the provisions of Randwick Development Control Plan 2013 (RDCP).
Part C2 of RDCP provides controls relating to medium density residential developments. Section 3.4 of part C2 provides setback controls applicable to the Subject Site. The rear and side setback controls provided within this section of RDCP are of particular relevance in this appeal.
The rear setback control applicable to the Subject Site is 15% of the allotment depth or 5 m, whichever is the greater. The subject site has a depth of 46.52m and, as a consequence, the required setback is 6.98 under the provisions of section 3.4.3(i) of RDCP.
There is no numeric side setback control provided for regularly shaped sites with width of less than 12m, and minimum side setbacks are subject to merits assessment under section 3.4.2 of RDCP.
[6]
Contentions
At the commencement of the hearing the Applicant sought, and was granted, leave to rely on amended plans, referred to in evidence as the version H plans. These plans made the following changes to the proposed development:
1. the deletion of one bedroom on the ground floor;
2. an increase in size to the proposed communal room on the ground floor;
3. a shortening of the depth of the extension proposed to the rear of the existing dwelling from approximately 9.7m to 7 m.
Also at the commencement of the hearing, the Respondent sought leave to amend its statement of facts and contentions, and through that amendment to address the requirements of cl50 of SEPP ARH in relation to reductions in the availability of affordable housing.
That leave was not granted as the Court had not directed that evidence on this subject be adduced and so expert testimony was unable to be provided on this subject during the hearing.
The Respondent noted in opening that, as a consequence of its relatively small scape of operation the proposed boarding house:
1. did not require an on-site manager; and
2. was below the size that would require the inclusion of communal open space for use by residents.
The contentions considered during the hearing addressed the following questions, which I have placed into two groups:
1. contentions in relation to the requirements of SEPP ARH, in particular:
1. is the design of the proposed development compatible with the character of the local area, as required under SEPP ARH cl30A;
2. are the Applicant's proposed parking arrangements for cars, motorbikes and bicycles acceptable?
1. other contentions:
1. is the design of the proposed party wall extension adjacent to the dwelling at 234 Alison Road acceptable?
2. are potential impacts of the proposed development on the significant tree at the rear of the Subject Site acceptable?
3. are the sizes of the proposed boarding rooms acceptable?
4. are the overshadowing impacts of the proposed development acceptable?
5. is the Subject Site suitable for the proposed development?
6. is the proposed development in the public interest?
These questions are each considered below, and they were the subject of expert testimony during the hearing as follows:
1. the contention addressed at [39(2)(b)] above, concerning the potential impacts of the proposed development on a significant tree, was the subject of testimony from arboricultural experts, Mr Guy Paroissien for the Respondent, and Mr Ross Jackson for the Applicant.
2. the remaining contentions were the subject of testimony from the town planning experts, Mr Lewis Adey for the Applicant, and Mr Steven Layman for the Respondent.
[7]
Is the design of the proposed development compatible with the character of the local area, as required under SEPP ARH cl30A?
SEPP ARH cl30A requires that:
A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
Before proceeding to a detailed consideration of this question, I would note that, in my opinion, a boarding house is not out of character with the local area, as there is an existing boarding house on Subject Site, and there was no objection from the Respondent, nor from any of the local objectors, to the use of the Subject Site for a boarding house.
In giving further consideration to the requirements of SEPP ARH cl30A, and as noted by the then Senior Commissioner at [26] in Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019, a response to this clause requires first a consideration as to what should constitute the local area, and secondly, consideration of what should be regarded as the character of that local area.
Based on the submissions of the Parties and the expert testimony of the planners, I am of the view that there are two components to the identification of the local area in this appeal. The first of these is the local area as perceived at the front of the Subject Site, and the second is the local area as perceived from its rear.
The testimony of the experts during the hearing addressed both front and rear aspects of the local character of the Subject Site, and I will deal with these separately.
[8]
Is the design of the development compatible with the character of the local area as perceived from the front of the Subject Site?
At the front of the Subject Site, the local area for the purposes of considering the requirements of cl30A of SEPP ARH is, in my opinion, that portion of Alison Rd between Avoca St and Dutruc St, along with the southern end of Dutruc St. This was the approximate area viewed by the Parties and the Court during the site inspection, and it was the area against which the opinions of the experts were tested during the hearing. This area includes the visual catchment of the Subject Site from both front and rear perspectives.
As the Applicant does not propose any changes to the presentation of the front façade to the existing boarding house building, the principal matters for consideration in relation to the design of the proposed development, and its compatibility with local character at the front of the Subject Site, are:
1. the proposed area and quality of landscaping within the front setback;
2. the proposed motorbike parking within the front setback, including the Applicant's proposal to excavate a portion of the front setback for that parking.
The town planning experts agreed that the proposed landscaping works in the front setback would be an improvement on the landscaping currently in place, and would enhance the streetscape presentation of the Subject Site. Having viewed the site I agree with the opinion of the experts and conclude that proposed front setback landscaping works are compatible with character of the local area.
The Respondent submitted that the Applicant's proposal to excavate an area of the front setback for use as a motorbike parking space was not in keeping with character of the local area. This submission was supported by the testimony of the Respondent's town planning expert, Mr Layman.
In contrast, the Applicant, supported by the testimony of Mr Adey, said that it was not uncharacteristic for residents in the local area to park motor bikes within their front setbacks, and that it was not atypical for car parking spaces, including parking spaces created through excavation works, to be found within front setbacks in the local area.
In support of this point, the Applicant noted that the residence at 226 Alison Road included garage access, and a car parking space, the construction of which had required excavation within the front setback of that lot.
During the Court's inspection of the local area, it was observed that the front setbacks of residences in the local area included diverse landscape treatments, and included a variety of opportunities for the parking of vehicles, principally cars, within their front setbacks.
Having considered the submissions of the Parties, the evidence of the town planning experts, and the observations made during the site inspection, I agree with the position of the Respondent that the design of the proposed development is compatible with the character of the local area at the front of the Subject Site because:
1. there are no changes proposed to the façade of the existing building;
2. there is a variety of landscape and parking arrangements within the front setbacks of other properties in the local area, and, in my opinion, the proposed motorbike parking space in the front setback of the Subject Site is reflective of, and not inconsistent with, that diversity.
[9]
Is the design of the development compatible with the character of the local area as perceived from the rear of the subject site?
The proposed alterations and extensions to the existing boarding house principally require modification to the existing building at its rear aspect.
The local objectors, Mr Fleming and Mr Andrews, submitted that the design of Victorian terraces, such as those on the Subject Site and its twin at 234 Alison Road, included small front setbacks that were complemented by more substantial green spaces within their rear setbacks. Mr Fleming and Mr Andrews had said that, in combination with the rear gardens of their own properties and others along Dutruc St, these rear spaces created a 'confluence of gardens' that formed part of the character of the area and contributed to the amenity of residents around the Subject Site.
The Applicant noted that the rear setback controls in RDCP did not provide that such a 'confluence of gardens' would form part of part of the future character of the area, as the controls within RDCP provided for a minimum rear setback of approximately 7m on the Subject Site. The Applicant noted that the proposed development included a rear setback of some 12m, which was significantly in excess of the minimum rear setback controls provided in RDCP.
The Applicant submitted that, based on controls in RDCP, a significantly deeper development could be envisaged on the Subject Site than that of the proposed development in this appeal.
The Applicant also drew the Court's attention to the design of the rear extension of a nearby building to the west of the Subject Site at 224 Alison Rd, Randwick which extended significantly beyond the existing rear building alignment of the Subject Site and other properties in Alison Road.
The Respondent had not identified the character of the rear of the Subject Site as a contention in these proceedings, and had focused its submissions on character on the potential impacts of the proposed development on the streetscape in Alison Road.
Having considered the submissions of the objectors, along with the evidence of the experts, and the submissions of the parties, I have concluded that, notwithstanding the current amenity provided by the so-called 'confluence gardens', the intent of the RDCP controls for the Subject Site, and other lots in R3 zone, the desired future character of the area including the Subject Site is different to that currently experienced by the neighbours of the Subject Site.
In this regard I note the observation of Roseth SC at [23] in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 that:
… There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. …
Based on the above, I have concluded that:
1. the proposed modifications to the existing building on the Subject Site are consistent with the desired future character of the local area as represented by the controls in RDCP;
2. the design of the proposed is consistent with the character of the local area at the rear of the Subject Site.
[10]
Conclusion in relation to consideration required under cl30A of SEPP ARH
Given the above findings, and having reviewed the amended plans, I have also concluded that the design of the proposed development is consistent with the character of the local area.
[11]
Are the Applicant's proposed parking arrangements for cars, motorbikes and bicycles acceptable
The proposed development is subject to the requirements of both SEPP ARH and RDCP in relation to the provision of car parking and bicycle/motorbike parking.
The car parking requirements for the proposed development are provided under SEPP ARH cl29(2)(e)(i) and RDCP Part B7, both of which require that the proposed development provide a minimum of one car parking space for the use of residents. The basis for this is discussed below.
The motorbike and bike parking requirements are provided under clause 30(1)(h) of SEPP ARH, and as a consequence the proposed development should include space for the parking of at least one bicycle and one motorbike. The basis for this required quantum of parking is also discussed below.
During the hearing the Applicant tendered two written requests, prepared in line with the provisions of cl4.6 of RLEP, to vary the development standard under cl30(1)(h) of SEPP ARH with respect to motorbike parking.
The Applicant's response in respect of car parking requirements under SEPP ARH cl29(2)(e)(i) and RDCP Part B7, and bicycle and motorbike parking under cl30(1)(h) of SEPP ARH are considered below.
[12]
Car parking
The proposed development does not include provision for any car parking spaces, and the current boarding house on the Subject Site does not include any car parking spaces.
Under cl29(2)(e)(i) of SEPP ARH a consent authority must not refuse consent to development to which this Division applies, if, in the case of development in an accessible area, at least 0.2 parking spaces are provided for each boarding room.
Under the provisions of RDCP Part B7 (Table 1) the car parking requirements for the proposed development are or one car space for each 5 bedrooms/boarding rooms based.
The town planning experts, Mr Layman and Mr Adey, agreed that, as the proposed development would result in an additional three boarding rooms, the baseline requirement under both SEPP ARH and RDCP, was for that the Applicant should provide one car space as part its application.
However, cl29(4) of SEPP ARH also provides that a consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
The Applicant's planning expert, Mr Adey, noted that the Subject Site is within an accessible area, as it is less than 400m walking distance from 14 bus routes serving a variety of destinations, and he provided details as to the specific bus routes accessible from the Subject Site.
Mr Adey also said that the Subject Site is within 400m walking distance from a proposed light rail station.
Based on this, Mr Adey submitted that, in his opinion, car parking was not considered appropriate, nor warranted, in the circumstances of this case, and that the discretion provided under clause 29(4) of SEPP ARH should be exercised by the Court in this appeal.
The Respondent's expert, Mr Layman, also noted that there was no ability for the Applicant to provide any car parking on the Subject Site.
Given that the Subject Site is within an accessible area, and as there is no capacity on the site for the Applicant to provide car parking, I accept the Applicant's submission that, in the circumstances of this case, it is reasonable to apply the provisions of clause 29(4) of SEPP ARH.
I conclude that the proposed development's inability to comply with requirements of RDCP Part B7 (Table 1) and SEPP ARH cl29(2)(e)(i) in respect of car parking should not be a basis for refusal of this application.
[13]
Bicycle and motorcycle parking
As noted at [19], SEPP ARH cl30(1)(h) provides that a consent authority must not consent to a boarding house development unless it is satisfied that at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every five boarding rooms.
SEPP ARH cl30(2) also provides that this subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
The proposed development is for an extension to the existing boarding house that will result in three additional bedrooms and a common room. In my opinion, the proposed development is not a minor addition, and so the provisions of cl30(2) do not apply in this case.
The Applicant has proposed that three additional boarding rooms would be added to boarding house resulting in a total of ten rooms within the facility.
It was the agreed opinion of the town planning experts in their joint report, and during the hearing, consistent with the assessment of Council officers in the Development Application Compliance Report tendered as evidence in the hearing, that:
1. the numeric requirement under SEPP ARH was for the proposed development to provide 0.6 bicycle 0.6 motorbike spaces based on the three additional boarding rooms proposed;
2. it was standard practice to round this figure up to the nearest whole number providing a requirement for one (1) bicycle space and one (1) motorbike space. The Applicant noted that this was consistent with RDCP Part B7 which advises that parking calculations should be rounded up to the nearest whole number.
Having considered the evidence of the town planning experts, and having reviewed the evidence tendered during the hearing, I agree with the opinion of the town planning experts and accept that the proposed development should provide a minimum of one (1) bicycle space and one (1) motorbike space within its design.
The Applicant has proposed that bicycle parking spaces would be provided for a minimum of seven (7) bicycles within the proposed development. Under the amended plans these bicycle spaces were proposed be positioned adjacent to waste bin storage area, mid-way along the eastern side of the property, with the bicycles to be hung in a vertical storage arrangement.
Based on the evidence of the planners, confirmed during the site inspection, I accept that this is arrangement satisfies the requirements of the SEPP ARH with respect to bicycle parking.
The proposed development also includes a proposal for one (1) motorbike parking space within the eastern portion of the front setback on the Subject Site. This space would be 1.2m wide and would be accessed via the walkway along the eastern side of the Subject Site.
The Applicant said that the construction of the proposed motorbike space would require excavation within the front setback of the Subject Site and any services, such as water pipes or power supply, in that area would have to be relocated. The Applicant said that any such relocation of services should be the subject of conditions of consent should the development be approved.
During the hearing the Applicant said that, should the Court, contrary to the agreed position of the experts expressed at [84], form a view that two motorbike spaces should be provided based on the boarding house having a total of ten rooms, then a written request prepared under cl4.6 of RLEP, and seeking to vary the standard applicable under cl30(1)(h) had been prepared by aSquare Planning Pty Ltd on behalf of the Applicant. This was tendered as evidence during the hearing
The cl4.6 request noted that the requirement for one motorbike parking space reflected guidance provided within section 3.2 (Vehicle Parking Rates) in Part B7 of RDCP, as follows:
Where development comprises an extension, modification or change of use to an existing development, Council will generally only require that additional parking be provided to cater for the additional demands arising from increases in floor space or changes in use.
The cl4.6 request went on to note that:
This is in line with established practice; parking rates are only calculated for additional accommodation in the case of alterations and additions. This Clause 4.6 variation is therefore submitted on a Without Prejudice basis, should the court hold a different view to the above
However, as noted at [85], I accept the agreed opinion of the town planning experts that only one motorbike parking space is required as part of the proposed development.
Consequently, I conclude that the Applicant's cl4.6 request to vary the motorbike parking standard under cl30(1)(h) of SEPP ARH such that only one motorbike parking space is required rather than two spaces, is not required for the purposes of this appeal.
As noted at [88], the proposed development includes one motorbike parking space. The location of this space and the access pathway leading from Alison Road were inspected during the site view.
The Applicant advised during the hearing that the walkway along the eastern side of the Subject Site, which would be used to access the proposed motorbike parking space was estimated to be 850mm wide and that this compared to a typical motorbike width of between 700-800mm.
The Applicant's town planning expert, Mr Adey, said that no standards were applicable, nor available, to guide a decision by the consent authority, or the Court on appeal, on the acceptability of the proposed access route between Alison Road and the motorbike space. Consequently, the Applicant's proposition for access to and from the proposed motorbike parking space must be assessed on a merits basis.
During the hearing the Respondent, supported by the testimony of Mr Layman, said that the Applicant's proposed motorbike parking arrangements should were not acceptable for the following reasons:
1. the location of the motorbike parking space would not be consistent with the streetscape of the local area. However, as noted above at [53], I have already concluded that I am satisfied that the proposed motorbike parking space is acceptable in terms of streetscape and local character;
2. the creation of the motorbike space would require significant excavation which would reduce the area in the front setback of the subject site available for landscaping. As noted above at [53], I have already concluded that I am satisfied that the proposed landscaping is acceptable;
3. accessing the proposed motorbike parking space would be challenging given the narrow width of the walkway along the eastern boundary of the Subject Site and given the fact that a rider of the motorbike would need to negotiate this pathway either by walking beside or riding the motorbike as it entered and exited the space;
4. accessing the proposed motorbike parking space would also require the rider of the motorbike either to:
1. cross the kerb/gutter, nature strip and pedestrian pathway on Alison Road in front of the Subject Site to access the pathway to the parking space, giving rise to a potential risk to the rider and pedestrians using the pathway;
2. enter the pedestrian pathway on Alison Rd via a crossover above or below the Subject Site, utilise the pedestrian pathway to reach the point of entry to the pathway leading to the parking space, thus also giving rise to a potential risk to pedestrians using the footpath on Alison Road.
In response to these points the Applicant said that:
1. once constructed motorbike would not be visible from the public domain as the space would be set into the front setback and so located below and behind the proposed front landscaping;
2. the excavation required to create the motorbike parking place would not result in a significant loss of landscape potential in the front setback;
3. the landscaping proposed for the front setback would be an improvement on the landscaping currently in that area;
4. accessing the motorbike parking space, while requiring care, would be possible, and would pose minimal risk to pedestrians and/or the rider.
5. there would not be a risk to pedestrians as there was a low numbers of pedestrians who utilise the pathway in front of the Subject Site;
6. it was common practice for other residents in Alison Road to utilise their front setback areas for motorbike parking, and these residents already accessed these areas by crossing the pedestrian pathway without incident;
7. if required, the use of the motorbike parking space could be limited to smaller bikes, mopeds and/or vespa style vehicles in order to facilitate ease of access to the parking space via the side walkway on the Subject Site.
Having inspected the location of the proposed motorcycle parking space and the access pathway, I agree with the Respondent and Mr Layman that the location of, and access to, the proposed motorbike parking space is likely to be challenging to enter/exit, and would not be without risk to rider and pedestrians.
Any rider of a motorbike seeking to use the proposed motorbike parking space would be required either to:
1. enter the pedestrian path at an existing crossover, negotiate either a significant length of footpath on Alison Road and then affect a very tight left-hand (if approaching downhill) or right hand (if approaching uphill) turn into a narrow walkway; or
2. identify an adequate space between two parked cars outside the Subject Site, manoeuvre a motorbike over a curb, across the grass verge, across the pedestrian walkway, and into the pathway leading to the motorbike parking area.
As noted previously at [96], the access pathway along the side of the Subject Site to the proposed motorbike parking area is 850mm wide. A motorbike with a width of 750mm would be the mid-point of the range of bike widths provided by the Applicant at [96]. A rider of a motorbike of such width would have either:
1. a space of 100mm beside the motorbike in which to walk with, and guide, the bike into the parking space; or
2. a clearance of 50mm either side of the motorbike if the motorbike were ridden into the parking space.
Having considered the testimony of the town planning experts, and observations of the Subject Site made during the Site Inspection, I am of the opinion that:
1. neither of these manoeuvres would be straightforward, and in some circumstances, dependent upon the size of the motorbike and the skill of the rider, may not be possible;
2. if a rider did successfully execute either of the these manoeuvres and succeeded in parking a motorbike in the parking space, the rider would then need to reverse the manoeuvre when exiting from the space, as the space does not provide any capacity to turn a motorbike into a forward facing direction. I view this as an even more challenging manoeuvre than entering the parking space;
3. the possibility of an interaction between pedestrians and a motorbike that is entering, or exiting, the parking space via the side passageway could not be discounted.
The Applicant's town planning expert, Mr Adey, acknowledged these issues and proposed that they could be mitigated through the introduction of conditions of consent to limit the size of any motorbike using the proposed parking space, or that the space could be allocated to a specific resident through a provision of the plan of management applicable to the boarding house.
Mr Layman expressed the opinion that any such conditions would be difficult to enforce, and said that, as a consequence, they would be impractical even if they were included in conditions of consent or the boarding houses plan of management.
The Applicant had drawn to the Court's attention the Development Application Compliance Report prepared by officers at Randwick City Council. This report had been prepared based on the officers' assessment of the Applicant's original development application. It was tendered as evidence as part of the Respondent's bundle of documents at the hearing. That report had recommended approval of the proposed development as originally presented by the Applicant.
However, the assessment of the development application in relation to the requirements of cl30(1)(h) of SEPP ARH, and which had been prepared by a development engineer at Council, had noted that the application did not comply with the requirements of that clause of the SEPP.
The compliance report had noted that:
The additional boarding rooms will trigger the need for one bicycle space and one motorcycle space. The original proposal provided a motorcycle parking space in the front setback area however this has since been deleted as motorbike parking in this location was not supported by Council's development engineering branch.
In documentation accompanying the compliance report, Council's development engineer had noted that Council had not supported the Applicant's proposal for a motorbike parking space in the front setback because Council did not support the construction of a vehicular crossing in front of the Subject Site to facilitate access by a motorcycle from Alison Road into the side pathway proposed to access the motorbike parking space.
Based on the above, I have concluded that the Applicant's proposal for the provision of a single motorbike parking space in the front setback of the Subject Site is not acceptable on a merits assessment because access to the proposed motorbike space from Alison Road is impractical, and potentially unsafe.
I also note that the proposal was not supported by Council for the reasons provided at [109].
I am also of the view that, while Council's original assessment of the application recommended approval, such a recommendation would have been contrary to the requirements placed on a consent authority by cl30 of SEPP ARH, as the provision of one motorcycle parking is a mandatory requirement under cl30(1)(h) of that SEPP.
In closing submissions, the Applicant said that, if the Court remained concerned that the provision of one motorcycle space in the front setback would have an unacceptable impact in terms of streetscape or an unacceptable safety impact, then the Court could rely on a written request, submitted by the Applicant with its original development application, in line with the provisions of cl4.6 of RLEP, which sought to vary the standard under cl30(1)(h) of SEPP ARH such that no motorcycle parking would be required of the proposed development.
That written request cl4.6, tendered as evidence at the hearing as part of the Applicant's Class 1 appeal bundle, had been prepared by Solutions Zane Land Use Planning Services, and I have considered whether that request is well founded.
Under cl.4.6(3) of RLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the Applicant seeking to justify the contravention of the development standard by demonstrating:
1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
2. that there are sufficient environmental planning grounds to justify contravening the standard
In addition, under cl.4.6(4) of RLEP, the consent authority must also be satisfied that:
1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.
In assessing whether compliance with the standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 in which five pathways were identified that could be applied to establish whether compliance with a development standard is unreasonable or unnecessary. These are to establish that:
1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary;
3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;
4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;
5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
As identified within the Applicant's cl4.6 written request in this case, there are no stated objectives for the development standards in cl30(1) of SEPP ARH, including the requirements of cl30(1)(h).
The author of the Applicant's cl4.6 written request had commented that:
"it is generally acknowledged that the intention of the standard in this instance is to provide for the on-site parking demand associated with affordable rental housing forms of development".
However, I am of the opinion that this is an assertion by the author, and is not grounded in any statutory text.
SEPP ARH includes a number of aims which were referred to earlier at [16 ].
The Applicants' other cl4.6 written request, discussed at [90] to [94], and also submitted to vary the requirements of cl30(1)(h) of SEPP, made reference to these broader aims and assessed the proposed development against these aims. However that cl4.6 request did not seek to justify the provision of no motorcycle parking, and so is not relevant in this circumstance.
The cl4.6 written request, prepared by Solutions Zane Land Use Planning Services, seeking to vary the requirements of cl30(1)(h) of SEPP ARH and to remove the requirement for a motorbike parking space, makes no reference to these broader aims of the SEPP.
As a consequence, the cl4.6 written request does not, and cannot, respond to the first of the pathways in Wehbe, and consequently, the cl4.6 request does not demonstrate that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
The cl4.6 written request also fails to address the requirements of any of the other four pathways identified in Webhe as a basis to establish whether compliance is unreasonable or unnecessary.
Clause 4.6(3) of RLEP also requires that the Applicant's written request under should demonstrate that there are sufficient environmental planning grounds to justify contravening the standard.
The written request prepared by Solutions Zane Land Use Planning Services provides the following response to demonstrate that there are sufficient environmental planning grounds to justify contravening the motorbike parking standard in SEPP ARH cl30(1)(h):
The amenity impacts associated with solar access and overshadowing, visual and acoustic privacy are demonstrated as being sustainable and consistent with those anticipated under councils LEP and DCP controls for this type of development.
While these factors may be an accurate assessment of the impacts of the proposed development, compliance with other standards and controls in RLEP and RDCP, does not, in my opinion, constitute adequate environmental planning grounds to justify contravention of a mandatory standard in SEPP ARH.
Based on my consideration of the Applicant's cl4.6 written request to vary the standard in cl30(1)(h) of SEPP ARH, prepared by Solutions Zane Land Use Planning Services, and submitted with the Applicant's original development application, I am not satisfied that the request is well founded.
Consequently, I have concluded that the Applicant's request to vary the standard in cl30(1)(h) of SEPP ARH should not be upheld should not be upheld.
Based on the above, I have further concluded that:
1. the Applicant's proposed motorbike parking space within the front setback of the Subject Site is not acceptable for reasons of functionality and safety see [110];
2. the Applicant's submission to vary the standard in cl30(1)(h) of SEPP ARH, such that the proposed development should not be required to provide one (1) motorbike parking space, should not be be upheld;
3. the Applicant's proposed development is unable to satisfy the requirement under cl30(1)(h) of SEPP ARH for the provision of one motorbike parking space;
4. the development application should not be approved because it does not satisfy a mandatory development standard under SEPP ARH.
[14]
Other contentions
Notwithstanding my finding at [131(4)], I have given consideration to the other contentions in this appeal and provide my findings below for completeness.
[15]
Is the design of the party wall extension acceptable?
The Respondent contended that the western wall of the proposed development would have an unacceptable impact on the adjacent to the terrace at 234 Alison Road, Randwick, in relation to its proposed bulk, scale, side setbacks and overshadowing of that lot.
The Respondent had said that these issues arose because the proposed development:
1. did not protect the amenity of residents, as required under the zone objectives for land zoned R3 within RLEP; and
2. included side setbacks that were narrower than should be accepted based on merits assessment of side setbacks required under section 3.4.2 of RDCP.
This contention was the subject of evidence from the town planning experts within their joint report and during the hearing.
The Applicant noted that the proposed development was compliant with the height control applicable to the Subject Site under RELP cl 4.3 and the floor space ratio control applicable under cl4.4 of RLEP and SEPP ARH.
The Applicant also said that the amended plans for which it had been granted leave in these proceedings had resulted in a number of changes to the design of the proposed development in order to address the contentions raised by the Respondent. These included:
1. a portion of the proposed rear addition had been moved away from the western boundary of the subject site by 1m, in order to maintain the portion of the building at that point as a single storey structure; and
2. the introduction of recessed panels along the wall to provide visual relief
The Applicant also noted that the town planning experts, within their joint report, had agreed that the height of the proposed addition could be reduced by 700mm, and that certain of the changes to the materials and finishes of the proposed development could be made to improve its presentation. These included that the proposed building would be cement rendered, painted in a light colour, with recesses to be presented using face brickwork.
The Applicant also noted that the amended plans, referred to as the version H plans, reflected amendments proposed by the town planning experts in relation to the roof pitch, and the bulk and scale, of the proposed development.
These version H plans also incorporated proposals to reflect suggestions made by Mr Layman within the joint report of the town planners.
During the hearing, the town planning experts agreed that the design of the proposed development, as reflected in the version H plans, was to be preferred over other versions of the design.
The Applicant said that, notwithstanding its submission that earlier versions of the plans did not have unacceptable impacts on neighbouring properties, it did not oppose the adoption of the amended version H plans.
It was the evidence of Mr Adey, within the joint report of the town planners, that the amended plans did not adversely impact on the amenity of neighbouring residents, and did not result in adverse impacts with respect to overshadowing and the setbacks of the proposed development.
Having considered the amended plans and the testimony of the town planning experts I agree with the opinion of Mr Adey that the impact of the proposed western wall as represented within the version H plans does not give rise to unacceptable impacts.
I also agree with the submission of the Applicant on this contention that the design of the western wall as represented within the version H plans should not be a reason for refusal of the application.
[16]
Are the potential impacts of the proposed development on the significant tree at the rear of the Subject Site acceptable?
The arboricultural experts, Mr Jackson and Mr Paroissien, gave evidence at the hearing in relation to the design of the proposed development, as represented in the amended version H plans which had been tendered as evidence.
The contention had centred on the potential impact of the proposed development on the tree protection zone of a large and significant London Plane Tree (Planatus x hybrid Syn Planatus acerifolia) within the rear yard of the Subject Site.
Mr Paroissien said that the amendments made to the plans, notably the reduction in the proposed depth of the development, and its extension towards the plane tree, had reduced the potential impact of the development on the tree's tree protection zone TPZ) from 23.7% of that zone to 16.9%.
Mr Paroissien expressed the opinion that the amended plans, taken together with the proposed draft conditions of consent, would assure the survival of the tree.
The Applicant confirmed that it would not oppose the imposition of the relevant conditions proposed by the Respondent in relation to the tree.
Based on this expert evidence, and the submissions of the Parties, I am satisfied that the contention in relation to potential impact of the proposed development on the plane tree would be resolved through the adoption of Mr Paroissien's recommendations, including those concerning recommended conditions of consent.
[17]
Are the sizes of the proposed boarding rooms acceptable?
SEPP ARH cl29(2)(f) provides standards that cannot be used to refuse consent for boarding houses, and requires that a consent authority must not refuse consent to development to a boarding house if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:
1. 12m2 in the case of a boarding room intended to be used by a single lodger, or
2. 16m2 in any other case.
It was the agreed evidence of the town planning experts that the amended plans, which had removed one of the proposed boarding rooms from the ground floor and increased the size of the common room from 20m2 to 23 m2, now included bedrooms that all complied with these standards. They noted, in particular, that each boarding room intended for use by a single lodger had a minimum area of 12m2, and that the Respondent's contention in relation to this standard had been satisfactorily resolved.
[18]
Are the overshadowing impacts of the proposed development acceptable?
The potential overshadowing impacts of the proposed development were considered by the town planning experts within their joint report.
Within the joint report the town planning experts agreed that no solar access controls were applicable to the boarding house development on the Subject Site other than those in SEPP ARH with respect to communal rooms.
SEPP ARH provides under clause 29(2)(c) that a consent authority must not refuse consent to development in a boarding house on a number of grounds including:
where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of three hours direct sunlight between 9 AM and 3 PM in midwinter.
The town planning experts agreed within their joint report that "shadow impacts would not of themselves warrant refusal of this application".
The town planning experts also agreed that although no solar access controls apply to the proposed development, were either the low density or medium density residential controls to be applied to the application, solar access to the properties to the west (that is to the rear yard and buildings of the neighbour at 234 Alison Rd) would be compliant with the controls applicable to the Subject Site.
Based on the evidence of the town planning experts I agree that the overshadowing impacts of the development are acceptable.
[19]
Is the Subject Site suitable for the proposed development and is the proposed development in the public interest?
Based on the above discussion of contentions, I am of the view that:
1. the Subject Site is not suitable for the proposed development by reason of its inability to satisfy the mandatory requirement of cl30(1)(h) of SEPP ARH in relation to the provision of a motorbike parking space;
2. the proposed development is, therefore, not in the public interest.
[20]
Conclusion
Based on the above considerations I have concluded that the Applicant's proposed development cannot be approved because:
1. it does not satisfy the mandatory requirement of cl30(1)(h) of SEPP ARH in relation to the provision of a motorbike parking space because, in my opinion, the motorbike parking space is not acceptable for reasons of functionality and safety.
2. the Applicant's written request submitted under cl4.6 of RLEP and seeking to vary the development standard under cl30(1)(h) of SEPP ARH is not well founded.
[21]
Orders
The Court orders that:
1. The appeal is dismissed.
2. Development application DA/120/2016 for alterations and additions to an existing boarding house at 236 Alison Road, Randwick, is determined by refusal.
3. The exhibits are returned, with the exception of Exhibits A and 1.
………………………….
Michael Chilcott
Commissioner of the Court
[22]
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Decision last updated: 08 March 2018