Thurkral v Parramatta City Council [2011] NSWLEC 1019 | Case summary

Contentions 18The contentions raised by the Council include the following: Contention 1 - Traffic The proposed development should be refused, as it is likely to generate additional traffic, which will adversely impact on the amenity of the street. 19The evidence is that the RTA " Traffic Generating Development Guidelines " do not have a traffic generation for boarding houses, however, I accept Mr Grech's evidence that having regard to the likelihood that occupants have low incomes levels and comprise predominately single person households, car ownership and usage would be low relative to a standard single dwelling house. I also accept Council's senior development assessment officer's assessment that: " The proposal is not likely to generate a significant amount of traffic and the local road network is capable of coping with whatever traffic generation is provided" (p3 exhibit 4). 20Therefore, based on the evidence before me I do not accept that approval of this development would generate a significant amount of additional traffic or will adversely impact on the amenity of the street. Therefore, contention 1 about traffic is not a reason to refuse this application. Contention 2 -Social impact and the environmental impact and amenity of adjoining and nearby properties The proposed development should be refused, as it is likely to have an adverse social impact on the character of the street. Particulars (a) The social impacts of integrating the proposed development with existing development in the street having regard to the character of the existing development is relevant to the determination of the development application and has not been addressed in the material submitted with the development application. 21There is no doubt that the social impact of a development on the existing character of an area is a relevant consideration under s79C (1) of the EPA Act: Benevolent Society v Waverley Council (2010) NSWLEC 1082 at [61], [96-102], [145] and [147]; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289. However, there is no requirement under the SEPP for the applicant to lodge with the development application a document called a social impact statement. 22Mr Grech gave both written and oral evidence about the social impact of this development on Gore Street. Consistent with his comments in the joint report he told me that he based his expert opinion on inspection of the street and locality and an assessment of census data. I do not accept the evidence of Mr Mc Donald that Mr Grech should have conducted a door-to-door survey of Gore Street to better inform himself about the character of the street. I believe that the information received by Mr Grech in the manner obtained was in the circumstances relevant and reliable. 23The Court's understanding about the character of Gore Street was supplemented by the oral evidence of the residents who addressed me onsite and explained to me the existing demographic of their street and their concerns about the impact of the proposal on their existing amenity. The written objections, which were tendered to the Court, also added information about the social impact of this development on Gore Street. There is no doubt in my mind that by the end of the hearing the Court had sufficient information to assess the social impacts of the proposed development on the existing character of Gore Street. 24In fact the interrelationship between the site and its neighbours was a major focus of the view and the evidence. The concerns raised by the immediate neighbours was considered and resulted in an amendment of the plans to reduce overlooking and increase privacy. The primary purpose of the plan of management (introduced as condition of the consent) is to ensure that neighbours' amenity is reasonably maintained by the operation of the premises as a boarding house. The objectives of the plan are to: minimise disturbance to neighbours, discourage late night arrival and departure, provide a procedure for the receiving and resolution of complaints, maintain external and internal amenity and to ensure that the managing agent is contactable 24 hours a day to deal with any complaints. 25By the end of the hearing both planners agreed that the plan of management was competent and if complied with would address the amenity concerns raised by the application. 26A plan of management is a well-known concept in environmental law: Transport Action Group Against Motorways Inc V Roads &Traffic Authority [1999] NSWCA 196 at [122]; and can be used in a range of circumstances. Having considered the checklist of matters in decision the of Renaldo Plus 3 PTY Limited V Hurstville City Council [2005] NSW LEC 315 [54] this plan of management is appropriate because it will assist in addressing the amenity impacts on the neighbours and integrating the proposed development with the existing development in the street. The applicant has agreed for the plan of management to be incorporated as a condition of consent and therefore its terms will be enforceable if necessary. 27I do not accept Mr McDonald's evidence about the unworkability of this plan of management because his comments can be directed to any plan of management and or any boarding house. To accept his views as a basis for refusal of this small-scale permissible boarding house would on the evidence frustrate the aims and objectives of the SEPP; particularly where there is an acknowledged need for this type of small-scale boarding house in Parramatta as discussed in the NSW Department of Housing, Information on Parramatta Housing Market (exhibit J). 28In considering the social impacts of this proposal on the character of Gore Street it is relevant to appreciate they must be considered in the context of the statutory framework of the SEPP, which prevails over any environmental planning instrument to the extent of any inconsistency. It is a fact that this application complies with the mandatory relevant standards for boarding houses in cl30 of the SEPP, and; furthermore, is not inconsistent with the current zoning or anticipated zoning of the land. It also satisfies the stated aim of the SEPP "to support local business centres by providing affordable housing for workers close to places of work." 29Based on the evidence, this small-scale boarding house for up to 10 people will integrate with the existing character of the locality. While it is a more traditional style of boarding house (because it does not offer ensuite accommodation and cooking facilities in some of the bedrooms), and the ABS data for 2004 suggests that some unemployed males reside in boarding houses of this type, there is no evidence to suggest that it will not also attract the new generation boarding house demographic of single women, students, couples and young working people as discussed in the Affordable Rental Housing SEPP Review December 2010 (exhibit H). Its location will be attractive to a variety of people and I accept that opposition to boarding houses in some cases reflects a lack of understanding of the people who occupy them. 30According to the evidence, Parramatta council area needs affordable housing of the type proposed. Section 79C (b) of the EPA Act requires a consideration of the social impacts of a development including its benefits and s79C (e) requires a consideration of the public interest: Benevolent Society v Waverley Council (2010) NSWLEC 1082 at [22, 34,59,61,96-102,145 and 147]. This development, on the evidence provides a social benefit because it offers affordable housing in Parramatta, in particular single person accommodation. 31Having said that I understand the fears and concerns expressed by the local residents about the operation of this boarding house in their street because it is a new use. However, I also appreciate that there is no objective evidence to suggest that this 6-room boarding house will not fit in with the existing character of the street. The proposed conditions including the plan of management will assist in maintaining the existing amenity of the locality. The Court has repeatedly rejected fear or concern without rational or justified foundation as a ground for rejecting a development under s79C (1) of the EPA Act: New Century Development Pty Limited V Baulkham Hills Shire Council [2003] NSWLEC 154 Lloyd J at [61-62]. There is no evidence before me to support a refusal of this small-scale 6-room boarding house on social impact grounds or in the public interest. 32The above contentions are not made out on the evidence. Contention 3 -Public Transport The proposed development should be refused due to the lack of public transport in the vicinity of the proposed site, which will increase the reliance on private car use. 33In the planners' joint report at p6 of exhibit 4, it is agreed that the site is adequately serviced by public transport in the form of buses travelling east west along Victoria Road. At the Court view I observed this and agree with the evidence that it is " ...within walking distance of local shops and public transport services to the City, Parramatta and Chatswood and within 200 meters of Victoria Road (to the north of the site)" and council's senior development assessment officer's assessment that "...The location of the proposed boarding house is considered suitable under the circumstances." 34Therefore, based on the evidence Contention 3 is not a ground to warrant refusal of this application. Contention 4 - Location The proposed development is unacceptable and should be refused as it introduces a commercial activity into a residential zone that is characterised by residential dwelling development and fails to enhance the current residential area. Particulars (a) Objective (a) of the 2(a) Residential Zone in clause 16 of Parramatta Local Environmental Plan 2001 states as follows: ( a) To enhance the amenity and characteristics of the established residential area". 35The planners agree that the proposed development is a permissible form of residential development to be located in a residential zone. The existing dwelling house will not externally change if this application is approved apart from the addition of an awning on the northern elevation to cover 2 motorbikes. In terms of streetscape the planners agree that there will be no adverse impact from this development. 36However, Mr McDonald is concerned about the intensity of this development, specifically the introduction of 2 additional bedrooms and up to 10 adult residential occupants into the location. His evidence is that 10 unrelated adults will be noisier than 6 related people and this potentially will cause an adverse impact on the neighbours' amenity. In particular he is concerned that there is no onsite manager to regulate the behaviour of the residents. Relevantly, however, the SEPP does not require an onsite manager for a boarding house where there are less than 20 residents. 37Despite that, in an attempt to address this issue, the applicant has proffered a plan of management with house rules aimed at minimising disturbance to neighbours. Again this is not required by the SEPP. 38Ultimately, Mr McDonald conceded in his oral evidence that any adverse amenity impacts could be addressed through the proposed plan of management but expressed concern about the enforcement or workability of such a plan. He also agreed that the treatments to the top floor bathroom and bedroom windows would address his concern about privacy and overlooking into the adjoining rear yards. 39Based on the evidence, I am satisfied that the plan of management will assist in addressing any adverse impacts on the " amenity and characteristics of the established residential area ". It provides a procedure to receive and resolve complaints and requires the appointment of a managing agent who will be contactable 24 hours a day from a designated telephone within the house to deal with any immediate concern. A weekly cleaner will be employed (at the owners expense) to ensure that the common property is clean and to take out the bins for council garbage collection. These measures will be of some assistance in maintaining the " amenity and characteristics of the established residential area " in accord with objective (a) of the 2(a) Residential Zone in clause 16 of LEP 2010. However, whilst this is an objective of the zone it must be read in the context of the provisions of the state policy, which prevails. 40The plan of management prescribes no smoking or alcohol to be consumed at the front of the property and only in designated areas at specified times. Use of the kitchen is also regulated by the plan of management. Mr McDonald is of the view that the plan of management is competent in its terms despite his concern about its enforcement and I am satisfied that approval of this small boarding house will not introduce a commercial activity which will detract from the established residential characteristics of the established residential area. In any event, I accept the applicant's submission that where the objectives in cl16 of the LEP are inconsistent with the SEPP the SEPP prevails as discussed in the decision of the Court of Appeal in Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA285 [94-96]. I agree. 41This ground of appeal on the evidence cannot support a refusal of this application.

Disability Access 43The council contends that development should be refused as insufficient information has been provided to demonstrate that adequate provision has been made for disabled access. Alternatively, the council proposes a deferred commencement condition, which requires this existing 4-bedroom dwelling house (if converted into a 6 bedroom boarding house) to accord with the disability access provisions of the Building Code of Australia and AS 1428.1- Design for Access and Mobility. 44According to the applicant, this would require substantial structural change to the dwelling house and the expenditure of money disproportionate to the cost of the application, which is stated at $15,000. Although I note that the applicant has not provided any independent assessment of the work or its cost. 45The applicant submits that the deferred commencement condition is unreasonable in the circumstances of this case because this is a small-scale development and compliance with it will jeopardise the viability of the proposal. Furthermore, the imposition of this deferred commencement condition is inconsistent with the aim of the SEPP to facilitate the type of development proposed by this application. 46A consideration of this issue must be balanced against the fact that this SEPP does not require compliance with the disability access provisions of the Building Code of Australia and AS 1428.1- Design for Access and Mobility. Although I understand that the draft DCP (exhibited in March 2010) does require compliance with these requirements for new boarding houses. Relevantly, this development does not propose a new boarding house but the conversion of an existing house. Therefore even if the draft DCP applied to the site it would not be relevant to this application. 47In my assessment under the SEPP of the conversion of a 4-bedroom house into a 6-bedroom boarding house with a maximum of 10 residents it is unnecessary to impose the deferred commencement condition. In the particular circumstances of this case, it is a small-scale boarding house and it is unnecessary to impose requirements beyond those specified in the SEPP. 48I have assessed the internal amenity of the boarding house and I am satisfied that it complies with the standards in cl 30 and, subject to the conditions and plan of management, it provides satisfactory internal accommodation for the 10 residents.

Thurkral v Parramatta City Council

At a glance

Court

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Before

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Judgment (12 paragraphs)

Parties

Cases Cited (2)

Cited By (3)