Vujicic v Northern Beaches Council

The Site

1. The site is a rectangular shape oriented north-south, covering a total area of 752.5 m2, with a cross fall of 2 m across the site in a southerly direction. The site drains towards an easement, which benefits the site to an adjoining (burdened) property at 54 Roosevelt Avenue. Evidence of the (stormwater) easement is provided in Exhibit E.
2. The site has frontage of 17.7 m to Allambie Road (northern boundary) and adjoins (along the western boundary) for a length of 42.7 m a privately owned car park and road (known as Grigor Place), that forms part of 141 Allambie Road, also known as Allambie Heights Shopping Centre. The eastern and southern boundaries of the site adjoin existing residential dwellings.
3. The site is currently occupied by a single storey brick dwelling centrally located with an attached carport.
4. The character of the area is predominantly single storey, with some newer double storey weatherboard and brick residences, which form part of an established residential community.
5. The local residents rely on regular bus connections to major shopping precincts, hospital and ferry (at Manly) to the city, and the site is within close proximity of local public school and community centre. The timetable of available bus services (walking) accessible from the site is tendered in Exhibit G.

The proposal under appeal and issues for the Courts consideration

1. The DA proposes demolition of existing infrastructure, and construction of the following:

• two storey boarding house with 14 rooms including a kitchenette and bathroom, of which six and eight rooms are located on ground and first floors, respectively. The ground floor also includes a communal room, facilities room, common laundry, garbage area, and private open space.
• a driveway and parking area at the front of site with space for: four cars; three motorcycles; and three bicycles.
• on-site detention basin (OSD) at the rear of the site, draining towards the existing drainage easement.
• landscaping within the front, sides and rear of the site.

1. Subsequent to the termination of the conciliation and based on the amended plans and supporting documents relied on in this appeal, the parties agree that the contentions raised in the Statement of Facts and Contentions (SoFC), dated 20 June 2018 and tendered as Exhibit 1, are satisfactorily resolved. These contentions relate to: inconsistency with character; insufficiency of landscaping; requirement for an onsite manager; internal/external amenity impacts; and not in public interest.
2. The parties recognise that there is significant community concern regarding the proposed development at this site, although consider that the issues raised by objectors are resolved by the amendments made to the DA and conditions of consent.
3. As the parties agree that the contentions are resolved and there are no jurisdictional issues relating to the proposed development, the parties seek the granting of consent for DA 2017/1191 to be determined through consent orders made by the Court. A signed version of the amended consent orders with agreed conditions was tendered at the hearing as Exhibit 6.
4. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and whether it is appropriate for the Court to grant consent.
5. I am also required to consider the evidence and submissions of the objectors/residents. The Practice Note - Class 1 Development Appeals (Practice Note) of the Land and Environment Court sets out the procedural requirements at [99] for the Courts consideration: "[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary."
6. The Court heard from six objectors at the onsite view of the hearing. The issues raised, as summarised in Exhibit 9, are as follows: not in character; inappropriate reliance on private property for parking and access during construction; insufficient transport availability after hours; no stormwater easement; amenity impact due to overshadowing and privacy; inappropriate waste storage; insufficient parking; and traffic safety risk on Allambie Road.
7. These oral/written submissions are to the consent orders notified to residents on 1 July 2019 and are provided at the hearing. They are essentially consistent with the previous written submissions made by these and other residents in response to the various notification periods that relate to this DA.
8. The DA was filed, although not determined before the implementation of the most recent version of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). A number of residents referred to the amending SEPP ARH to inform their objections.
9. Before judgement was reserved, the Court made directions for the parties to amend conditions of consent to address the agreed parking and acoustic requirements, and provide resumes for relevant experts that addressed the Court. This information was filed between 22-23 July 2019, and replaces part of Exhibit 6 (conditions of consent), and appends to Exhibits 4 and 5 (expert reports).
10. In addition, the Court directed the applicant to amend the Plan of Management (PoM) as agreed, to address the limit of lodgers/boarders, and street parking. This was filed with the Court on 22 July 2019, and replaces part of Exhibit D.

Relevant Planning Controls

1. The requirements of s 4.15(1) of the EPA Act are relevant for the Courts consideration in the granting of this DA under appeal.
2. With regards to the proposed boarding house, the provisions as set out in the SEPP ARH are relevant for the Courts consideration. As the DA was lodged, although not yet determined prior to the commencement of the amending SEPP ARH, pursuant to the savings provision in cl 54C(2), the Court must determine the DA based on the SEPP ARH as if the amending SEPP 'had not commenced'. The relevant savings provision, cl 54C is as follows: 54C Savings and transitional provisions - 2019 amendment (1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement. (2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced. (3) In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019.
3. I appreciate there has been much consideration by officers of the Court as to the relevant application and phrasing of a savings clause in an amended planning instrument. I find however, in this appeal, that cl 54C of the SEPP ARH, has the effect of guiding the consent authority to determine the DA based on the relevant SEPP ARH at the time of application. This is consistent with the approach adopted by Commissioner Dixon in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 who had regard to the application of the exact phrase provided in the relevant savings provision. At [21] of her judgement, Commissioner Dixon states: "The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.'
4. Of particular relevance in the granting of the DA under appeal is the satisfaction of all clauses in Division 3 of the SEPP ARH, and specifically considering cll 25, 26, 27, 28, 29, 20, and 30A.
5. Relevantly at cl 29, the SEPP ARH provides a number of standards that cannot be used to refuse consent to development, if the relevant and determining standards are met. The evidence provided to the Court indicates that these standards are met by the amended plans of the DA. Clause 29 of SEPP ARH is as follows: 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).
6. There was some dispute between the parties as to the quantification of the parking provision (cl 29(2)(e) in the SEPP ARH), however the parties agree that as parking is not a standard that cannot be used to refuse a DA and there is no relevant development control (in the WDCP), the parking issue is not pressed and no contention is raised by Council. Further to this, the Court has already determined that the relevant parking provision to be applied in this appeal is a minimum of 0.2 parking spaces for each boarding room in an accessible area (as explained later in this judgement), which the amended plans of the DA satisfy with the provision of four parking spaces for the 14 rooms.
7. At cl 30 of the SEPP ARH, there are a number of standards which the consent authority must not consent to development, unless these standards are met. I am satisfied that the current development application meets these standards as explained later in this judgement.
8. The parties agree that the requirement for a limit to the number of boarding rooms (to 12) in the R2 zone as specified in cl 30AA of the amending SEPP ARH is not relevant for this DA, based on the savings provision, cl 54C.
9. The development must however satisfy the character requirements of cl 30A of the SEPP ARH, which is explained further in this judgement.
10. Further to the provisions described above, it is noted that pursuant to cl 8 of the SEPP ARH, any inconsistency with other environmental planning instruments, the provisions of the relevant SEPP ARH prevail, as follows: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
11. The site is located within an R2 Low Density Residential zone, as identified in the Warringah Local Environmental Plan 2011 (WLEP). The objectives of the zone as established in cl 2.3 are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
12. The proposed development as a boarding house is permissible in this zone with consent, and based on the proposed design satisfies the definition of a boarding house (below) in cl 1.4 of the WLEP: boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. Note. Boarding houses are a type of residential accommodation - see the definition of that term in this Dictionary.
13. There is no contention that the relevant development standards of the WLEP have not been satisfied by the proposed development.
14. In consideration of the granting of the DA, there are also controls of the Warringah Development Control Plan 2011 (WDCP) that are to be considered, including those relating to building bulk, landscaping, OSD and private open space (PoS). There are no quantified parking provisions in the WDCP for a boarding house.

Evidence

1. The Court heard from the following experts:

• Planning - Mr Norman Fletcher for the applicant; and Mr Alexander Keller for the respondent.
• Landscape - Mr Anthony Powe for the respondent.

Character

1. This contention raised by Council, and a number of objectors relates to whether the proposed development, as designed, is consistent with the local character of the area. The contention initially raised by Council is quite detailed, however in essence revolves around whether the designed building presents to the streetscape in harmony and is 'balanced' with other existing residential developments when considering the proposed landscaping, setbacks and building articulation.
2. The standard to be satisfied before the granting of DA is cl 30A in the SEPP ARH, also cl 2.3 of the WLEP as it relates to an R2 zone, and specifically the objective that states "To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah".
3. The requirements of cl 30A of the SEPP ARH, as follows: 30A Character of local area 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.
4. I agree with the parties that the proposed amendments to the presentation of the building to the streetscape, including improved articulation of the building with landscaped recesses, greater landscaping in the front with softer colours and materials of the facade, are more in tune with surrounding developments, which provides a perception of reduced bulk and scale that is more characteristic with the streetscape.
5. I consider that the proposed development is in character with the surrounding area, being single/double storey landscaped residences, and therefore satisfies cl 30A of the SEPP ARH.
6. In addition, I consider that the proposed development, as shown in the amended plans, is consistent with the objectives of the R2 zone. The character of the area is not a static feature, evolving as infrastructure and demographics in the area change. The proximity of the site to nearby shopping centres and the new hospital with suitable transport links, suits workers and others that may seek closer proximity to these services, although not require a permanent residence. A boarding house therefore provides a suitable opportunity, and whilst not functioning as a typical family residence would, it appears from the street as characteristic based on the proposed design.

Landscaping

1. The contention as raised by Council relates to the need for further landscaping in the front/side/rear of the site to effect a suitable screen of the bulk and scale of the building to adjoining developments, and whether the landscaping can function with the associated stormwater services (i.e. the OSD) required for the proposed development.
2. Based on the amended landscape plans in Exhibit B, the parties are in agreement that the proposed landscaping provides adequate screening of the development to adjoining developments and the streetscape.
3. In cross examination, Mr Powe was confident that the effect of the landscaping, as shown in the amended landscape plan (Exhibit B), will reduce the perception of bulk and scale of the building, screen the parking spaces at the front of the building, and provide adequate screening to the sides and rear of the site for privacy to adjoining properties. The proposed plant species will provide a range of planting density and height that will suitably screen the proposed development. The type of plants proposed is characteristic for the local area, as utilised in many residences around the site.
4. He also explained that the type of plants proposed over the OSD is suitable to thrive in this area, thereby providing screening in the rear of the site towards the PoS.
5. Based on the evidence before me, I find that the proposed landscaping at the site is consistent with the relevant controls of the WDCP and is also in character with the surrounding area. The proposed landscaping satisfies the requirements of cll 29(2)(b) and 30A of the SEPP ARH.

Onsite manager and number of lodgers (borders)

1. This contention relates to whether the proposed development requires and provides 'adequate' facilities for an onsite boarding manager. The requirement for a boarding manager was raised due to the potential capacity of the boarding house to accommodate more than 20 lodgers (within the 14 proposed rooms), which pursuant to cl 30 of the SEPP ARH, therefore requires facilities, including a car parking space to be provided for an onsite boarding manager.
2. The parties agree that proposed condition of consent and amendment to the PoM has limits the development to 14 single rooms. The amended conditions of consent, at condition 41 of Exhibit 6, stipulates a limit of one lodger/boarder per room, and therefore the limit of 14 boarders satisfies the requirements of cl 30(1)(e) of the SEPP ARH. No onsite boarding house manager is therefore required, which is also relevant to the satisfaction to the requirements of cl 29.
3. The PoM has been amended to make clear to future residents the limit of boarders in each room is one (i.e. single rooms) and in the boarding house a limit of 14 borders. The amended plans and requirements of the PoM have adequately addressed the issue of ensuring security to boarders and residents in the surrounding community, as raised by the objectors.
4. I am therefore satisfied that no boarding manager is required onsite, and the proposed development satisfies the requirements of cll 29 and 30 of the SEPP ARH. As no onsite manager is required, the requirements of the SEPP ARH and WDCP as it relates to parking facilities and PoS requirements are satisfied.

Amenity - external and internal

1. The contention raised by Council in the SoFC and also by a number of objectors relates to whether the proposed development offers sufficient privacy and solar access to boarders and adjoining residents. The resident to the east of the site is also concerned about the potential for noise from the PoS and waste smells from the bin room.
2. The parties agree and I am also satisfied that the amended plans provide a buffer of landscaping at the rear of the site of 3 m to 9 m deep to adjoining residences, and therefore provides sufficient screening for privacy to and from boarders utilising the PoS. The amendment to the conditions of consent, conditions 2(a) and (d), which require the stairs to the rear of the building to be screened will further improve privacy to the adjoining (east) resident.
3. In addition, as shown in the amended plans and described in the amended conditions of consent, a 2 m acoustic fence along the southern margin with a 1 m return (to the east) of the PoS will reduce any potential noise to residents. An almost 9 m setback from the edge of the PoS to the adjoining property east of the site, also mitigates any potential noise impact. These features together with the PoM, which limits the hours of activity in the PoS will have the effect of reducing any potential noise impact to adjoining residents.
4. I am satisfied that based on the amended plans, the proposed development provides: a compliant setback and height; and sufficient and compliant solar access to adjoining residents that does not result in a reduction in the required three hours of solar access. The internal amenity of the communal area has been improved by the re-orientation and addition of a window on the western side, as shown in the amended plans. This satisfies cl 29(2) of the SEPP ARH.
5. The internal door entrances to each boarding room are offset to ensure privacy, as amended in the conditions of consent, with condition 2(b) inserted. In addition, privacy to the neighbours is addressed through privacy screens attached to upper level windows, as provided for in condition 13.
6. The parties agree and I am satisfied that the proposed waste management plan, conditions of consent and the PoM will not result in an amenity impact to the adjoining neighbours. The location of the bin room, which is open to the air located at the front of the site and provision of sufficient bins will not result in any adverse waste issue for the neighbours. There are no inconsistencies with the requirements of the WDCP for the proposed development.

BASIX

1. The contention raised by Council in the SoFC relates to a lack of a relevant and compliant BASIX certification, as a supporting document to the DA.
2. The parties agree and I am satisfied that this contention is resolved by the provision of the BASIX Certificate in Exhibit J, which is consistent with the requirements of the State Environmental Planning Policy - Building Sustainability Index (BASIX) 2004 and based on the proposed development.

Stormwater easement

1. Although, not a contention in the SoFC, the issue of the site having appropriate stormwater drainage easement was raised by resident objectors.
2. There is an existing easement for stormwater drainage that benefits the site, as described in Exhibit E, which is provided in the stormwater management plan (Exhibit F). This issue is resolved to the Courts satisfaction.
3. In addition, based on Exhibit E, the parties agree to remove the deferred commencement condition for the provision of an easement described in the draft conditions of consent, as it already exists. The amended conditions of consent in Exhibit 6 show the deletion of this condition.

Parking, accessibility to public transport and traffic

1. Although, not contended in the SoFC, the following issues were raised by resident objectors: insufficient parking onsite and on the street; insufficient access to late night bus services; and traffic safety at the nearby roundabout on Allambie Road.
2. The parties are in agreement, based on the advice of their traffic experts that the site will not pose an adverse or increased risk to users of the nearby roundabout on Allambie Road. The volume of traffic entering and exiting the site, together with the relocation of the driveway access to the site further away from the roundabout, has satisfied the experts that there is no increased traffic safety risk at this location. The experts are satisfied that the amended plans allow for the forward motion of cars and that the swept path analysis show the proposed car parking arrangement can function safely.
3. The parties agree and the Court accepts that the proposed four space car parking onsite is compliant with the SEPP ARH requirements, and also that the traffic study indicates that there is sufficient on street parking available as required.
4. The issue raised by the adjoining property owner of the shopping centre relates to boarders potentially parking in the private parking designated for shoppers. This has been resolved to the Courts satisfaction by the amendment of the POM which clearly advises boarders of their obligations to not use the private parking associated with the shopping centre, including spaces along Grigor Lane, which is a private laneway.
5. Access to the site during the construction is also limited to Allambie Road, and no access is permitted via Grigor Lane, as provided in the amended conditions of consent, in conditions 9 and 17.
6. I accept the submissions of the parties that the development meets the accessibility requirements of the SEPP ARH. After giving due consideration to the residents submission on this issue, I find there is no evidence or special circumstances that do not satisfy the requirements of the SEPP ARH with regards to accessibility as there are available bus services that run all day and into the early morning. The site is within an accessible area and within 270m walking distance of transport, thereby satisfying subcll 27(2) and (3).

Public interest

1. The parties agree and I am satisfied that based on the resolution of the contentions raised in the SoFC and by objectors, the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act is complied with.

Consent Orders

1. The parties have relied on the following supporting documentation for this DA: 1. Traffic assessment, dated October 2017; 2. Statement of Environmental Effects, dated November 2017; 3. BCA assessment report, dated October 2017; 4. Disability Access report, dated October 2017; 5. Stormwater drainage plans, dated November 2017 6. Amended architectural plans, dated October 2018; 7. Amended PoM, dated July 2019; 8. Amended BASIX certificate, dated May 2019; 9. Amended conditions of consent, dated July 2019; and 10. Owners consent from 105 Copeland Road, dated December 2017.
2. Notwithstanding the parties' agreement to consent orders in determining this matter, I have carefully considered the evidence and (resident) objections relevant to the DA under appeal, together with the submissions and my observations during the onsite view. Having carefully considered the information before me in evidence, I am satisfied in my assessment, pursuant to s 4.15 of the EPA Act, that DA 2017/1191 warrants approval.
3. I am required to: assess the evidence that the approval is lawful and appropriate; be satisfied that any objections have been properly taken into account; and confirm that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am therefore satisfied that these requirements are met and accordingly, consent is granted to the development in accordance with the consent orders signed by the parties (amended as Exhibit 6) and subject to the conditions of consent annexed to this judgment.

Orders

1. Consequently, the orders of the Court are as follows: 1. The appeal is upheld. 2. Development Application 2017/1191 by the Northern Beaches Council to demolish existing structures, and construct a two storey, 14 room boarding house, with 4 space car parking at Lot 1 DP 200542, also known as 139 Allambie Road, Allambie Heights is approved subject to conditions set out in Annexure A. 3. The exhibits, except for Exhibits 1, 6, A, B, E and F are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (341 KB, pdf)

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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: 26 July 2019