VL3 Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2022-05-24

Judgment

COMMISSIONER: VL3 Pty Ltd (VL3) seeks development consent to construct a five-storey boarding house on the corner of Nelson Place and Trafalgar Street in Petersham. It lodged a development application with Inner West Council (the Council) on 12 April 2021. Following the expiry of the period after which a development application is deemed to be refused, VL3 lodged the present appeal proceedings, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.
Following the joint conferencing of the expert town planners and prior to the commencement of the hearing, VL3 put forward amendments to the development application. On 24 May 2022 the amended development application was lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000.
The proposed development, as amended, is a 5-storey boarding house comprising 19 rooms including a room for an on-site manager, and associated landscaping and site works. The 19 rooms include 7 single rooms and 12 double rooms, with one double boarding room on the ground floor, five boarding rooms on each of the first, second and third floor, and three boarding rooms on the fourth floor (fifth storey). Each boarding room is proposed to contain a bathroom and kitchenette. One of the boarding rooms on the fifth storey is the manager's room, which has a private open space in the form of a balcony accessible from sliding doors within the room. The ground floor also includes a communal room with a kitchen and accessible bathroom. A single car space is located off Nelson Place for a privately owned car share for the boarding house, and the proposed development also includes 19 spaces for bicycle parking and 4 spaces for motorcycle parking accessed from Trafalgar Street.

The Council's position and the outcome of the appeal

The Council raised a number of contentions concerning the proposed development through its Amended Statement of Facts and Contentions, which relate to its compatibility with the local character, its setbacks, the adequacy of the car parking and driveway access, overshadowing, the amenity for the occupants and the adequacy of the Plan of Management.
As a result of the amendments to the development application, the Council agrees that the contentions it raised on the appeal have now been resolved and has signed consent orders for the grant of development consent.
Notwithstanding the Council's position, I am nevertheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made by the local residents, and the public interest.
For the reasons that are set out below, I find that each of the contentions raised by the Council have been resolved. I am satisfied that the matters raised by the resident objectors have either been adequately addressed, or do not warrant refusal of the development application.

The site and the locality

The hearing commenced with an inspection of the site and surrounds, accompanied by the parties' representatives and the expert witnesses. The site is known as 1 Nelson Street, Petersham and is legally described as Lot 1 in DP 722557.
The site has a 10.11m frontage to Nelson Place to the west, and a 34.33m secondary frontage to Trafalgar Street to the north, with a total area of 359.8m2. There are currently two driveway crossovers to Trafalgar Street, which is a classified road. A single storey dwelling currently occupies the site, with a detached shed and garage within the rear setback and accessed from Trafalgar Street.
The adjoining properties to the south of the site along the eastern side of Nelson Place are a mix of single storey and two storey dwellings, with a single storey dwelling immediately to the south. On the western side of Nelson Place, across the road from the site, is a three-storey residential flat building.
Immediately to the east of the Site, along Trafalgar Street, are industrial premises at 331 Trafalgar Street, which have been converted into a dwelling house. Further to the east of the site is a development currently under construction, which is for a four-storey boarding house with a nil setback to Trafalgar Street.
The northern side of Trafalgar Street is occupied by the rail corridor and associated buildings. Petersham train station is located around 250m to the north-east of the site.

The planning framework

The site is zoned R4 High Density Residential, pursuant to the Marrickville Local Environmental Plan 2011 (MLEP). Boarding houses are a nominated permissible use within the zone. The objectives of the zone, which are required to be considered in determining a development application, are as follows: "• To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for well connected neighbourhoods that support the use of public transport, walking and cycling."
Clause 6.20 of the MLEP requires consideration of design excellence, and cl 6.20(3) precludes the grant of consent "unless the consent authority considers that the development exhibits design excellence". Sub-clause (4) then sets out the matters to which regard is required in considering whether the development exhibits design excellence.
The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7 includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application.
Clause 29 of the SEPP ARH applies to the development and sets out a number of grounds on which consent cannot be refused if certain criteria are met. It 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 carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 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).
Pursuant to cl 29(1)(c), the proposed development is permitted additional floor space ratio (FSR) of 0.5:1, which allows it to have a FSR of up to 1.8:1. The proposed development has a total FSR of 1.69:1, and therefore complies with the "must not refuse" provision concerning density and scale in cl 29(1). Accordingly, development consent cannot be refused on the basis of density and scale.
Clause 29(2)(a) prevents the refusal of development consent on the basis of height, if the proposed development complies with the "maximum building height permitted under another environmental planning instrument", which is the applicable height development standard under the MLEP. An updated survey dated 23 May 2022 with an additional survey point, when considered against the finished levels on the proposed roof plan at the proximate point, confirms that the proposed development complies with the height development standard.
The remaining provisions of cl 29(2) are similarly met, except for the requirement in cl 29(2)(e)(iia) to provide 0.5 car parking spaces for each boarding room. This is considered further below.
Clause 30 of the SEPP ARH sets out some standards for boarding houses that must be met, otherwise the consent authority "must not consent" to the development. These requirements concern the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager's room, and requirements for motorcycle and bicycle parking. Each of those standards are met.
Clause 30A of the SEPP ARH also prevents a consent authority from consenting to a development "unless it has taken into consideration whether the design of the development is compatible with the character of the local area."
Clause 2.99 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 concerns the impact of rail noise or vibration on residential accommodation adjacent to a rail corridor, and requires the following: 2.99 Impact of rail noise or vibration on non-rail development (1) This section applies to development for any of the following purposes that is on land in or adjacent to a rail corridor and that the consent authority considers is likely to be adversely affected by rail noise or vibration - (a) residential accommodation, (b) a place of public worship, (c) a hospital, (d) an educational establishment or centre-based child care facility. (2) Before determining a development application for development to which this section applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette. (3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded - (a) in any bedroom in the residential accommodation - 35 dB(A) at any time between 10.00 pm and 7.00 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time.
Clause 2.118 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 concerns development with frontage to classified road, as follows: 2.118 Development with frontage to classified road (1) The objectives of this section are - (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that - (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The Marrickville Development Control Plan 2011 (MDCP) also applies, with relevant provisions within Part 2, Part 4.3 and Part 9. The relevant provisions within each of those parts are set out in my consideration below.

The resident evidence

The original development application was advertised and notified for a period of 21 days. The Council received 18 submissions during that period. After the commencement of the appeal proceedings, the development application was further notified from 3 May 2022.
Following the Council's decision to consent to the grant of development consent, the Council's solicitor notified the objectors in writing by email on 23 May 2022. The email attached a copy of the further amended plans, the proposed consent orders and the draft conditions of consent. I am satisfied that reasonable notice was given to all persons who objected to the proposal of the content of the consent orders and the conditions of consent, and that those who objected had an opportunity to be heard, consistent with the requirements of paragraph 99 of the Practice Note - Class 1 Development Appeals.
As a result, a number of residents who remain opposed to the proposed development attended the site inspection, at which the town planner engaged by VL3 explained the latest changes to the plans to them. The residents then had an opportunity to give evidence and make submissions expressing their concerns with respect to the development. Those concerns, together with concerns expressed in written submissions, can be summarised as follows:

Privacy of the dwellings located in the residential apartment building on Nelson Street, opposite the site.
Overshadowing of the single storey dwelling to the south, at 3 Nelson Street.
The adequacy of the car parking arrangements given the existing problems with on-street parking in the locality.
Breach of the controls with respect to setbacks and boarding house common rooms.
The behaviour of occupants of the boarding house, and associated noise impacts on surrounding residents.

The concerns of the residents are considered further below.

The expert evidence

Expert opinion evidence on the traffic and parking issues was given by Mr Matthew McCarthy, a traffic engineer engaged by VL3, and Mr Manoj Isac, a traffic engineer employed by the Council.
Mr McCarthy and Mr Isac agree that there will be a net increase of one on-street car parking space by the removal of the larger of the two driveway crossings on Trafalgar Street, and the provision of a new driveway crossing on Nelson Place. They also agree that the proposed driveway off Trafalgar Street (in the location of the existing driveway crossover that is to be retained), which serves four motorcycles, will not adversely impact on the safety, efficiency and ongoing operation of the classified road.
Expert opinion evidence on the town planning issues was given by Mr Gerard Turrisi, a town planner engaged by VL3, and Mr Glen Hugo, a town planner employed by the Council.
Mr Turrisi and Mr Hugo agree that the setbacks are appropriate, and that the design of the development is consistent with the desired future character of the locality. They agree that the overshadowing of 3 Nelson Place is compliant with the controls in the MDCP. They also agree that the management of the residents will be appropriately carried out by the on site manager in accordance with the proposed Plan of Management.

The contentions raised by the Council have been resolved

As a result of the amendments made to the development application and the evidence of the experts, each of the contentions raised by the Council on the appeal have been resolved.

Setbacks

The Council raised a contention on the appeal concerning the adequacy of the setbacks and the building depth (contention 5). This is also an issue raised by the resident objectors.
Part 9.6.5.4 of the MDCP requires side setbacks of 3m to both Nelson Place and Trafalgar Street, with a further 3m setback for the portion of the building above 3 storeys. The setback controls are informed by the masterplan for the area. Control C59 requires that the boundary setbacks must conform to the control diagram, and controls C62 and C63 require the envelopes to conform to the same diagram. That diagram is at Figure 6.4b, and shows zero side setbacks between each of 1, 3 and 5 Nelson Place, and an 18m building depth. It also shows 3m setbacks to Nelson Place and Trafalgar Street for the first three storeys and an additional 3m setback to both streets for the fourth storey and above.
The proposed development has a 1m setback to Trafalgar Street, with an additional 1.5m setback at the fourth storey, and a 3m setback to Nelson Place with an additional 3m setback for the fourth storey. The proposed development has a nil setback to the adjacent property at 3 Nelson Place. The built form complies with the 18m building depth control.
Mr Turrisi and Mr Hugo agree that the 1m setback of the proposed development to Trafalgar Street is consistent with the pattern of development on the sites to the west, and that the setbacks to Nelson Place and to the southern side boundary comply with the setback controls in the MDCP. Further, they agree that the additional 1.5m setback to Trafalgar Street at the fourth floor achieves the intent of the control concerning the additional setback by making that upper storey recessive.
The proposed southern side setback and setback to Nelson Place complies with the MDCP, and, where a development application complies with the standards in a development control plan, s 4.15(3A)(a) of the EPA Act operates to preclude more onerous standards from being required.
Where a development application does not comply with the standards in a development control plan, s 4.15(3A)(b) requires the consent authority "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." I accept the evidence of Mr Turrisi and Mr Hugh that the setbacks to Trafalgar Street, although not compliant with the MDCP, are consistent with the pattern of development along Trafalgar Street, and that additional setbacks could not be achieved given that the site is being developed in isolation. Whilst there are no specific objectives in the MDCP concerning those setback controls, I accept their evidence that the setbacks at both the lower levels and at the fourth floor achieve the intent of the numerical setback contained in the MDCP.
Therefore, I consider that the setbacks of the proposed development are acceptable in their context.

Compatibility of the design with the character of the area

The Council also raised a contention that the proposed bulk of the development is not compatible with the character of the local area, contrary to what is required to be considered in accordance with cl 30A of the SEPP ARH. Specifically, cl 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area." An appreciation of the character of the local area includes understanding both its existing character and its desired future character. The built form desired future character for the site and its immediate surrounds is expressed in the control diagram at Figure 6.4b of the MDCP, which relates to Masterplan Area 6.4 within the Petersham South precinct. It is reproduced at Figure 1.
Mr Hugo opines that the proposed development will be in harmony with a building developed to the south in a manner consistent with the desired future character as expressed through the MDCP. He considers that a residential flat building can be built to the south of the proposed development, which would be of similar scale to the proposed development and would result in the proposed development being in harmony with a building developed in accordance with the desired future character as expressed in the MDCP. Therefore, although Mr Hugo considers that the proposed development is not in harmony in the current streetscape, the area will be redeveloped and the proposed development will ultimately sit in harmony with the desired future character of that streetscape.
Mr Turrisi shares Mr Hugo's opinion concerning the compatibility of the design with the desired future character of the locality, but also considers that there are examples of a change in height from single or two-storey to four-storey in the immediate vicinity of the site, which reflects that the area is one that is undergoing transition to an urban form with higher density and taller built form consistent with the controls.
In considering whether a design of a proposed development is compatible with the character of the local area, in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 the Court pointed out at [23] 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."
When considered on its Nelson Place frontage, the built form of the proposed development creates an abrupt change in scale from the single storey dwelling to the south. However, this is an area for which the planning controls envisage a change of character and the streets surrounding the site are undergoing the transition identified by Mr Turrisi. In such circumstances, I accept the evidence of Mr Hugo that the proposed development will be in harmony with a building developed to the south in a manner consistent with the desired future character as expressed through the MDCP. Further, the built form largely complies with the built form controls, with the only non-compliance being the setbacks to Trafalgar Street, on which there is no abrupt change of scale. Accordingly, I am satisfied that the design of the proposed development is compatible with the desired future character of the local area.

Overshadowing

The Council raised a contention that the proposed development is likely to result in unacceptable overshadowing impacts on the adjoining properties to the south at 3, 5 and 7 Nelson Place. This was also an issue raised by the local residents, who were particularly concerned with respect to the overshadowing of 3 Nelson Place.
The provisions of the MDCP concerning retaining sunlight to adjacent properties are set out at objective O3 and control C2 in Part 2.7. Control C2 requires that direct solar access to windows of principal living areas and principal areas of open space of nearby residential accommodation must not be reduced to less than two hours at the winter solstice, or must not result in a further decrease if there is already less than two hours. The control provides: "C2 Direct solar access to windows of principal living areas and principal areas of open space of nearby residential accommodation must: i. Not be reduced to less than two hours between 9.00am and 3.00pm on 21 June; or ii. Where less than two hours of sunlight is currently available on 21 June, solar access should not be further reduced. However, if the development proposal results in a further decrease in sunlight available on 21 June, Council will consider: a. The development potential of the site; b. The particular circumstances of the neighbouring site(s), for example, the proximity of any residential accommodation to the boundary, the resultant proximity of windows to the boundary, and whether this makes compliance difficult; c. Any exceptional circumstances of the subject site such as heritage, built form or topography; and d. Whether the sunlight available in March to September is significantly reduced, such that it impacts upon the functioning of principal living areas and the principal areas of open space. To ensure compliance with this control, separate shadow diagrams for the March/September period must be submitted in accordance with the requirements of C1; Where less than two hours of sunlight is currently available on 21 June and the proposal is not reducing it any further, Council will still consider the merits of the case having regard to the above criteria described in points a to d."
Mr Turrisi and Mr Hugo agree that the proposed development complies with control C2, as demonstrated in the amended shadow diagrams. A review of the shadow diagrams shows that the rear yards of the neighbouring dwellings at 3, 5 and 7 Nelson Place have solar access from 10am to 1pm, well in excess of the requirements of control C2. The northern windows of 3 Nelson Place are already in shadow at the winter solstice as a result of the existing dwelling.
Given that the control in Part 2.7 is achieved, s 4.15(3A)(a) of the EPA Act operates to preclude more onerous standards from being required. As such, the overshadowing of the adjoining properties to the south at 3, 5 and 7 Nelson Place is acceptable in the context of the controls in the MDCP and the proposed development cannot be refused on the basis of overshadowing.

Communal rooms

The Council raised a contention that the common areas of the proposed development are inadequate, for the reasons that they are not on the same floor as the accessible rooms, they are not adequately separated from the motorcycle parking and bin areas, and they are not provided on each level.
However, Mr Turrisi and Mr Hugo agree that the lift within the building provides access to the common room from all levels, which is consistent with the objective in the MDCP to provide accessible access to the common room. Further, based on the amended plans that now form part of the proposed development, there is adequate separation between the communal open space area and the motorbike/waste area. Mr Turrisi and Mr Hugo also agree that the common room is of acceptable size and has acceptable amenity.
As a result, the remaining non-compliance with the requirements of the MDCP concerns the fact that a common area is not provided on each level of the proposed development. This non-compliance was also raised by a resident objector. The relevant control is at C23 within Part 4.3 of the MDCP, as follows: "C23 Provide a smaller, more intimate communal living room on each floor in a multi-storey boarding house that has a capacity of more that 5 residents and multiple floors."
The relevant objectives concerning this control are as follows: "O7 Communal areas are designed to facilitate effective communal living and social cohesion. O8 Boarding house residents have access to a variety or spaces that provide relief from the confined space of their room."
The Council's position is that the proposed development remains non-compliant with respect to this control. Mr Hugo considers that the proposed development is not consistent with objective O8 as there is no variety of spaces and the communal living room does not provide space away from the kitchen and dining areas. However, the Council concedes that this non-compliance does not warrant refusal of the proposed development.
Mr Turrisi's evidence is that the size of the common room is acceptable from an amenity perspective, and provides a good connection to the recreational space within the communal open space. The common room contains a lounge area that is divided into two spaces which he opines allows for separation and multiple uses by different lodgers in a well sized room, which is 65m2 in size. Mr Turrisi considers that in a site of this size, there are constraints in providing common rooms on each level.
I accept the Council's position that the non-compliance with the requirement to provide common rooms on each level does not warrant refusal of the development application. I accept Mr Turrisi's evidence that the design of the common room allows for separation and multiple uses by different lodgers. Whilst the proposed development, therefore, does not provide multiple different common spaces, it nevertheless provides access to a space that provides "relief from the confined space of their room" that can be used for a variety of uses, consistent with the intent of objective O8 in Part 4.3 of the MDCP.

Adequacy of the car parking arrangement

The Council also contended that the proposed development provides insufficient car parking. This is also an issue raised by the local residents. There is no off-street car parking proposed for private vehicles or vehicles owned by residents of the boarding house. Instead, a single car parking space is provided for a car share vehicle that will be provided by the boarding house and managed by the boarding house manager. The proposed development also provides 19 bicycle spaces and 4 motorcycle spaces.
Clause 29(2)(e) of the SEPP ARH provides that a development application must not be refused on the basis of parking if it provides "at least 0.5 parking spaces are provided for each boarding room" and "not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site". The Council contended in its Amended Statement of Facts and Contentions that this means that the proposed development ought to provide 12 car parking spaces.
A calculation of the required car parking spaces based on the "must not refuse" provisions in cl 29(2)(e) of the SEPP ARH would result in a requirement for 10 spaces. This calculation is supported by the evidence of both Mr McCarthy and Mr Isac.
The failure of the proposed development to comply with cl 29(2)(e) means that the proposed development can be refused on the basis of car parking. It is therefore relevant to consider the provisions of the MDCP to determine whether the car parking arrangement is acceptable.
The provisions of the MDCP require car parking to be provided at the rate of "1 parking space per resident employee and 0.5 parking spaces per boarding room", which is a total of 11 spaces (Control C1 in Part 2.10.5). The objectives of the parking provisions in Part 2.10 of the MDCP are as follows: "O1 To balance the need to meet car parking demand on-site to avoid excessive spillover on to streets, with the need to constrain parking to maintain the Marrickville LGA's compact urban form and promote sustainable transport. O2 To balance the need to provide service/delivery areas on-site to avoid excessive use of streets for this purpose, with the need to constrain those areas to maintain the Marrickville LGA's compact urban form and promote sustainable transport. O3 To improve the integration of land use and transport by applying strict constraints to car parking within accessible areas and more modest constraints in less accessible areas. O4 To ensure parking provision and design is compatible with the particular development proposed. O5 To allow for appropriate variation of provision rates and design parameters for developments with particular characteristics, such as affordable housing or re-use of older buildings. O6 To provide for current and future demand for bicycle parking and to ensure bicycle parking is well designed and located. O7 To ensure all parking facilities are safe, functional and accessible to all through compliance with design standards. O8 To ensure all parking facilities achieve positive visual, environmental, sustainable transport and pedestrian safety outcomes through adoption of best practice principles. O9 To give priority, in larger developments and where appropriate, to certain users in allocating parking, including emergency vehicle parking, service/delivery, mobility parking, bus/bicycle priority and parking for carshare and environmental vehicles. These objectives directly promote Objective (d) of Marrickville Local Environmental Plan 2011 (MLEP 2011) "to promote sustainable transport, reduce car use and increase use of public transport, walking and cycling"."
The evidence of Mr McCarthy is that the parking demand of the proposed development is not reflected in the rates required by the MDCP, and that the actual demand will be consistent with what is provided on site in the car share space, motorcycle parking and bicycle parking. He reaches this opinion based on various factors that reduce the parking demand of the proposed development, which can be summarised as follows:

The proximity to public transport modes, with the train station and 5 bus routes located within 400m of the site. A light rail stop on the Central to/from Dulwich Hill line is also located around 1km west of the site.
The Regional Bike Route 7 - Lewisham to Newtown is currently being constructed and is located directly opposite the site along the northern side of Trafalgar Street.
The characteristics of tenants of a boarding house, which is for the provision of affordable housing, are more likely to have low car ownership levels.
The absence of accessible or attractive parking as an end-of-trip facility, which means that tenants will seek other means of transport instead of the inconvenience of a private vehicle.

Mr McCarthy considers that the objectives of the parking provisions in the MDCP are achieved by the proposed development, as it promotes sustainable and alternative transport, supports the demand for bicycle parking by providing more bicycle spaces than required, and allows for appropriate variation of car parking rates based on the particular characteristics of a boarding house development. In addition, Mr McCarthy's evidence is that the shortfall is further supported by the net increase of one on-street parking space that results from the proposed development, and the fact that there are 9 GoGet car share vehicles within 500m walking distance of the site, which provide an alternative to private vehicle ownership.
Further, Mr McCarthy's evidence is that the provision of a car share vehicle and car space in the proposed development will meet any demand for parking for the residents of the boarding house. Clause 2.10.9 of the MDCP 2011 provides that: "Carshare schemes provide an alternative means by which residents and business operators can have access to a car, and as such, may enable on-site parking for private cars to be reduced."
Based on his experience and research, Mr McCarthy's evidence is that when car shares are introduced into an area without any car shares the result is that business and residents forgo the purchase of a private vehicle, with the research findings demonstrating that the average number of members per car share bay is 22, and there is a gross reduction of 13 additional private cars per annum per additional car share bay.
Mr Isac does not put anything contrary to Mr McCarthy's evidence concerning parking demand or the efficacy of the provision of a shared vehicle and car share space, but nevertheless opines that the proposed development will result in additional on-street parking by residents. Notwithstanding Mr Isac's opinion, the Council's position is that it now accepts that the car share space and the provision of a shared vehicle is acceptable to manage the car parking demand, and agrees that there can be no expectation that every resident of the boarding house will own a private vehicle.
As set out above, where a proposed development does not comply with the standards in a development control plan, s 4.15(3A)(b) requires the consent authority "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." Although the MDCP sets out minimum parking requirements for boarding houses, it clearly contemplates, at objective O5, that there can be an appropriate variation of provision rates for developments with particular characteristics. Those characteristics exist in the present circumstances, where the proposed development is for affordable housing in the form of a boarding house, and where the proposed development is located in close proximity to multiple public transport modes and the Regional Bike Route 7. In my view, the objective in O1 to "balance the need to meet car parking demand on-site to avoid excessive spillover on to streets, with the need to… promote sustainable transport" is achieved based on those characteristics, together with the provision of the carshare vehicle and space. I accept the evidence of Mr McCarthy that because of the attributes of the proposed development and its location, it will not generate the parking demand contemplated by the MDCP, and I accept his evidence that the provision of the car share vehicle and space will accommodate any demand for parking that arises from residents of the site. For those reasons, I am satisfied that the proposed development provides an alternative solution that, in the circumstances, meets the objects of the parking provisions with the MDCP. The car parking arrangement is therefore acceptable.

Urban design and design excellence

The Council also raised a contention that the proposed development does not provide a high standard of design in the private and public domain, and therefore does not exhibit design excellence, contrary to the provisions of the MLEP 2011.
The design excellence provisions in the MLEP are contained in cl 6.20 as follows: (3) Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence. (4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) whether the development detrimentally impacts on any land protected by solar access controls established in the Marrickville Development Control Plan, (e) the requirements of the Marrickville Development Control Plan, (f) how the development addresses the following matters - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, (x) the impact on, and any proposed improvements to, the public domain.
The Council's contention on this point is that the design of the entry to the car space detrimentally impacts the streetscape, contrary to cl 6.20(4)(f)(iv) of the MLEP.
Mr Turrisi's evidence is that the reduction of the width of the garage opening in the amended plans that now form part of the proposed development, combined with the change in the design of the garage door with the introduction of the glass element, maintains the architectural language of the building and ensures that when the garage door is closed the design of the garage will be visually integrated into the streetscape. Both Mr Turrisi and Mr Hugo agree that this results in a better urban design outcome than the earlier design of the proposed development, and they also agree that the narrowing of the opening will allow a tree to be provided within the front landscaped area to Nelson Place, which will improve the streetscape presentation between the driveway and fire access off Nelson Place.
I am satisfied that this contention is resolved and that the design of the proposed development exhibits design excellence. It responds to both the existing streetscape and the desired future character, by aligning with the existing setbacks along Trafalgar Street and ensuring that the form of the development can be continued to the south in accordance with the design for the Masterplan Area 6.4 within the MDCP. It has a high standard of architectural design, materials and detailing to present attractively in the streetscape with a bulk and scale that can be replicated by future development as the area continues in a period of transition toward higher density. I accept the evidence of Mr Turrisi that the design of the garage opening integrates visually into the streetscape and maintains the proportions of openings to the ground level.

Remaining contentions raised by the Council

The Council also raised contentions concerning the size of the boarding rooms, the suitability of the site for the proposed development given that it is being developed in isolation, the adequacy of the Plan of Management, the adequacy of the waste storage areas and consistency with the SEPP (Housing).
Mr Turrisi and Mr Hugo agree that the issue with respect to the size of the boarding rooms and the waste storage areas are resolved by the latest amendments to the development application. On the question of the suitability of the site, Mr Hugo now agrees that the sites to the south along Nelson Street can be developed in a manner consistent with the desired future character as expressed through the MDCP to a bulk and scale that is consistent with the proposed development. Accordingly, no issue remains concerning site suitability. Mr Turrisi and Mr Hugo also agree that the Plan of Management has now been acceptably amended to address the contention, and that the SEPP (Housing) does not apply to the proposed development.
Consequently, each of the remaining contentions raised by the Council has been resolved, and no longer form a basis upon which the development application could be refused.

Privacy

A number of the local residents raised concerns with respect to privacy, particularly with overlooking from the proposed development to 3 Nelson Street to the south, and to the windows of the residential flat building on the opposite side of Nelson Street, known as 16 Sadlier Crescent.
The balcony opposite 16 Sadlier Crescent is accessed only by the boarding house manager, and Mr Hugo's evidence is that there is sufficient separation between the balcony and the property at 16 Sadlier Crescent so as to prevent any unacceptable privacy impacts. Further, Mr Hugo and Mr Turrisi agree that a condition of consent requiring the installation of a privacy panel on the rear windows of the development will adequately protect the privacy of the residents at 3 Nelson Street.
I accept the evidence of Mr Hugo and Mr Turrisi and find that there is no unacceptable impact on the privacy of adjoining developments.

Management of residents of the boarding house

A number of the local residents also raised concerns with respect to the potential behaviour of residents of the boarding house and ensuring that the boarding house is properly maintained.
The proposed development requires a resident boarding house manager, and includes a Plan of Management (dated 23 May 2022) that sets out the responsibilities of the boarding house manager. Those responsibilities include maintaining a register of residents, managing the booking of the car share vehicle, keeping all common areas in a state of cleanliness, supervising all maintenance operations, managing disputes and handling complaints. The Plan of Management also includes house rules and requires residents to inform the boarding house manager of any faulty services or broken furniture. It sets out a complaints procedure, which also requires that the contact details for the boarding house manager be displayed in a sign at the entrance to the premises.
Mr Hugo and Mr Turrisi agree that the Plan of Management is acceptable and will appropriately manage the premises and complaints that may arise from residents of neighbouring developments. I accept their evidence, and, consistent with the planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315, I consider that the Plan of Management relates specifically to the use of the premises as a boarding house, set out clear steps and requirements that ensure that impacts are managed appropriately, sets out an appropriate complaints management procedure and will be enforced by conditions of development consent.
Accordingly, I find that the boarding house will be appropriately managed so that the behaviour of residents is managed and the boarding house properly maintained.

Development consent should be granted

For the above reasons, each of the contentions raised by the Council on the appeal have now been addressed through the amendments to the proposed development and on the basis of expert evidence.
I consider that the proposed development is an appropriate application of the SEPP ARH and an appropriate response to the applicable controls, and the site's location and context. Its built form reflects the desired future character of the area, consistent with the Masterplan Area 6.4 within the MDCP, and provides setbacks to Trafalgar Street that are consistent with existing development. The proximity of the proposed development to public transport and the regional bike route, as well as the provision of a car share vehicle and spaces for motorcycle and bicycle parking, ensures that the proposed development promotes sustainable forms transport and reduces reliance on private vehicle ownership. Given that the other planning controls of the SEPP ARH and the MLEP are met, there is no basis to refuse the development application and it should be granted accordingly subject to appropriate conditions of development consent.
In addition, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction have been met:

Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use as residential premises, it is unlikely to be contaminated.
Clause 2.99 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires that, before determining a development application for development on land adjacent to a rail corridor that is likely to be adversely affected by rail noise or vibration, "the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette". The Acoustic Report dated 6 July 2021 considers those guidelines, as well as the aircraft noise intrusion arising from Sydney Airport. Based on the acoustic report, I am satisfied that appropriate measures will be taken to ensure that the LAeq levels in cl 2.99(3) are not exceeded. The agreed conditions of consent were updated following the filing of the signed consent orders to include a condition to require the development to be carried out in accordance with the acoustic report.
Consistent with cl 2.118(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021, I accept the evidence of Mr McCarthy and Mr Isac that the safety, efficiency and ongoing operation of Trafalgar Street, a classified road, will not be adversely affected by the development. The removal of one of the driveway crossings on Trafalgar Street and its replacement with a vehicular driveway crossing on Nelson Place is consistent with the requirement to provide vehicular access by a road other than the classified road. Although one driveway crossing will be retained for access from Trafalgar Street, the vehicles using that access will be constrained to bicycles and motorcycles, which will enter and exit the driveway in a forward direction. Further, the Acoustic Report dated 6 July 2021 confirms that measures will be taken to ensure compliance with the appropriate acoustic criteria (see section 8.1 of the report). The agreed conditions of consent require amended plans to be submitted that detail the implementation of the specifications recommended in section 8.1 of the acoustic report.

It is therefore appropriate to make orders in accordance with the signed consent orders, which are for development consent to be granted subject to the conditions of consent that are agreed by the parties.
The Court notes that: 1. The Respondent agrees under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA/2021/0625 to rely on the following documents:

Amended architectural plans prepared by CD Architects dated 16 May 2022.
Amended Plan of Management prepared by GAT & Associates dated 23 May 2022. 1. The Applicant lodged the amended development application, comprising the documents listed in order 1 above, on the NSW Planning Portal on 24 June 2022.

Orders

The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days of these orders. This agreed amount includes the order for costs thrown away made on 26 April 2022. 2. The appeal is upheld. 3. Development Application DA/2021/0625, for the construction of a five storey boarding house on land at 1 Nelson Place, Petersham is granted subject to the conditions at Annexure A. 4. Exhibit 2 is returned, and the remaining exhibits are retained. Joanne Gray Commissioner of the Court Annexure A (331814, pdf)

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: 07 July 2022

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Cases Cited (2)

Cited By (2)