On 5 February 2021 the Applicant appealed the Fairfield City Council's (Council) refusal of development consent for Development Application No. 351.1/2019 (DA) in relation to Lot 27 in Deposited Plan 26096 known as 9 Waratah Street, Old Guildford NSW 2161 (the Site) pursuant to ss 8.7(1) and 8.10 of the Environmental Planning and Assessment Act1979 (EPA Act).
[2]
Background
The DA seeks consent for the demolition of existing structure and the construction of a two storey boarding house comprising 12 single occupancy boarding rooms, with internal parking, on the land at 9 Waratah Street, Old Guildford (the Site).
The Site has a regular shape with a depth of approximately 70m and a width of 13.8m, giving a total area of 959m2.
Aerial photograph of the site - the Site is the lot shaded yellow. [1]
The land immediately surrounding the Site is within Zone R2 - Low Density Residential pursuant to the Fairfield Local Environmental Plan 2013 (FLEP 2013). Springfield Park which is Zone RE1 Public Recreation pursuant to FLEP 2013 is further to the west of the Site.
A mixture of detached single and double storey dwellings are situated immediately to the north, south, east and west of the Site. The predominant characterisation of development in the locality is single and double storey residential dwellings. In this regard, development in the surrounding locality consists of low density residential uses of various ages, styles and materials.
The front setbacks of surrounding properties are characterised by generous landscaped and grassed areas, contributing to a generally uniform landscaped streetscape appearance.
The Site is situated approximately 1.6km to the north east of Yennora Railway Station and 1.7m to the south east of Guildford Railway Station, which contains a range of retail and related uses.
A bus stop is located approximately 160m from the site, near the corner of Waratah and Broughton Street which provides a connection between Fairfield and Parramatta.
The owners of the site are the Applicants, and their consent to the DA was given on 7 September 2020 pursuant to cl 49 of the Environmental Planning & Assessment Regulation 2000 (EPA Regulation).
The DA was lodged with Council on 17 September 2020 [2] , and was determined by Council by way of refusal on 3 December 2020 [3] .
The Applicants filed their appeal on 5 February 2021 pursuant to s 8.7 (1) and in accordance with s 8.10 of the EPA Act [4] .
The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The statutory function to be exercised by the Court is ss 4.16 and 8.14 of the EPA Act and ss 34(4)(b) and 39(2) of the LEC Act.
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 9 June, 9 July, 29 July, 11 August and 10 September 2021. I presided over the conciliation conference. On the 10 September 2021 the parties requested that the s 34(1) conciliation conference be terminated and that I hear and determine the matter pursuant to s 34(4)(b)(i) and (ii) of the LEC Act. The proceedings were heard pursuant to s 34(4)(b) on 27 September 2021.
The Council advised that it consented to the Applicant amending its plans in Ex A [5] , Ex B [6] and Ex C [7] accordance with cl 55 of the EPA Regulation. The plans were uploaded to the NSW Planning Portal on 23 September 2021, and filed in Court on 24 September 2021.
At the commencement of the hearing, the Council advised that it would not be offering any contradicter to the Applicants' case.
The Applicants rely upon the amended plan DA including the amended plans in Ex A [8] , Ex B [9] , Ex C [10] and the following revised reports:
1. Parking Design Statement by PDC Consultants dated 11 August 2021 - Ex D;
2. Access Report by Design Right Consulting dated 4 May 2021 - Ex E;
3. Noise Assessment - Development Application Phase by Acoustic Consulting Engineers dated 2 July 2021 - Ex F;
4. Waste Management Plan by Loka Consulting Engineers Pty Ltd dated 28 May 2021 - Ex G;
5. Plan of Management Boarding House No. 9 Waratah Street Old Guildford by Nexus Environmental Planning Pty Ltd dated 8 September 2021 - Ex H;
6. Statement of Environmental Effects by Nexus Environmental Pty Ltd dated 14 September 2020 - Ex J;
7. Statement of Heritage Impact dated 6 June 2021 by GBA Heritage - Ex L;
8. BASIX Certificate number 1132932M02 dated 13 August 2021 - Ex M.
The development as amended is substantially the same as the original development in that it is for the purpose of a boarding house, on the same block of land, and the amendments have arisen as a result of the Council's requests and comments during the s 34 conciliation process. Council consented to the amendments in accordance with cl 55 of the EPA Regulation. I agree with the filing of the amended plans, and reports.
The amended DA seeks consent for a boarding house with 10 single rooms, 2 double rooms (including 1 accessible room), 3 motorbike parking spaces, 3 bicycle parking spaces, and 6 car parking spaces (including 1 accessible car parking space), together with 2 indoor communal lounges, and an outdoor communal area.
The DA was notified between 25 September 2020 and 9 October 2020 in accordance with cl 77 of the EPA Regulation. The Council received 9 submissions. The amended DA was notified on 18 August 2021 for 14 days in accordance with cl 77 of the EPA Regulation. Council received a further five submissions.
I had the benefit of a site view on 9 June 2021, and heard from a representative of the objectors that day. I have also had the benefit of perusing all the submissions from the objectors. [11] Council summarised the concerns of the objectors in its Statement of Facts and Contentions dated 31 March 2021 (SOFAC) [12] as follows:
1. Lack of parking;
2. Overdevelopment;
3. Illegal activities;
4. Excessive building length;
5. Overlooking impact from the first floor;
6. Character issues due to excessive hardstand;
7. Lack of landscaping along the driveway;
8. Lack of acoustic assessment;
9. Non-compliance with AS 2890.1 Parking Facilities;
10. Lack of vehicle passing bay;
11. Underestimated cost of works;
12. Incorrect floor space ratio outlined on plans;
13. Cul-de-sac location;
14. Unsatisfactory plan of management.
On the first day of the hearing I heard from the following objectors [13] :
1. Mr Robert Nasr of 2 and 11A Waratah St Old Guildford;
2. Mr Mark Henry of 12 Waratah Street, Old Guildford, speaking for himself and members of the neighbourhood;
3. David Feghali of 3 Shalom Close, Old Guildford, speaking for himself and members of the neighbourhood.
The above list of objections in Ex 2 is a fulsome summary of the objectors' submissions, both written and oral, with the exception of the issue of amenity relating to the close friendship of the owners/occupiers of Shalom Place and Waratah Street which includes regular street parties at Christmas time, and between Christmas and New year.
The Site is Zone R2 Low Density pursuant to Council's Zoning Map. The objectives of Zone R2 are:
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.
Under FLEP 2013 boarding houses are permitted with consent in the Zone R2 land.
Under cl 2.3 (2) of FLEP 2013 the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The FLEP 2013 defines a 'boarding house' to mean 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 of which may have private kitchen and bathroom facilities, that accommodate one or lodgers
but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment.
State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARHSEPP) sets out the aims of the Policy in cl 3 as follows:
(a) To provide a consistent planning regime for the provision of affordable rental housing;
(b) To facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards;
In cl 4 of ARHSEPP 'accessible area' means land that is within -
(c) 400m metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.000 each day from Monday to Friday (both days inclusive) and between 0.800 and 18.00 on each Saturday and Sunday.
Clause 26 of ARHSEPP provides that boarding houses may be built within Zone R2, and in cl 27 refines that provision to Zone R2 land to land which is within an accessible area. The Site is within an accessible area as defined as it has a bus stop approximately 160m distance from the Site for a bus service between Fairfield and Parramatta shopping centres.
[3]
Council's Contentions
Council set out 10 contentions in its SOFAC [14] . I shall deal with the contentions sequentially, noting that the contentions relate to the original DA, not the amended DA. However, it was the amendments to the plans, and further reports filed by the Applicants that satisfied Council that all the contentions had been resolved.
[4]
Floor Space Ratio
Floor space ratio is a matter to take into consideration pursuant to s 4.15(1)(a)(i) of the EPA Act. The ARHSEPP, cl 29(1)(a) states:
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 ground of density or scale if the density and scale of the building 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…
Clause 4.4 of FLEP 2013 provides that the maximum floor space ratio permitted on the subject site pursuant to the Floor Space Ratio Map in FLEP 2013 is 0.45:1.
The FSR for the amended DA is 0.45:1 and it therefore complies with the FSR standard.
[5]
Character and Streetscape
Character and Streetscape are matters to be considered pursuant to s 4.15(1)(a)(i) of the EPA Act. Clause 30A of ARHSEPP provides as follows:
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.
1. Clause 10.7 (Controls for Boarding Houses) in Chapter 10 of Fairfield Citywide Development Control Plan 2013 (FDCP2013) contains the following objective:
"a) To ensure that the location of boarding houses has due regard for compatibility with neighbourhood character…"
1. The local area is characterised by 1 and 2 storey detached dwelling houses on land currently situated within Zone R2 Low Density Residential pursuant to the provisions of FLEP 2013. However the amended DA before the Court demonstrates that the Applicant has redesigned the presentation of the property to the street to be compatible with the neighbourhood character, and that the length of the boarding house has been divided into 2 multi-dwelling houses, similar in size to the properties to the west, as is evident in the aerial photograph in para [3] above. The front setback is aligned with other dwellings in Waratah Street, and has landscaping there as well as on both side setbacks. A single garage door has been inserted at the driveway entrance to further reflect the character of the streetscape.
Clause 29(2) of ARHSEPP sets out "standards that cannot be used to refuse consent, and cl 29(2)(b) relates to landscaped area:
If the landscape treatment of the front setback area is compatible with the streetscape in which the building is located.
1. The Applicant has redesigned the front setback, the driveway, and the off-street parking. Each of these elements as redesigned are now compatible with the character and streetscape of the area.
Clause 10.7.1 in Chapter 10.7 of FDCP2013 provides the following in relation to neighbourhood character:
"a) Boarding House development applications must comply with the relevant City Wide DCP 2013 controls, relating to the predominant housing form within the neighbourhood, where such controls are not in conflict with SEPP (Affordable Rental Housing) provisions..."
"c) Boarding houses shall be designed to have a sympathetic relationship with adjoining development so as to ensure that they are capable of successfully integrating with neighbouring properties…."
1. In Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, Roseth SC (as he then was) set out 2 tests of whether a proposal is compatible with its context:
1. "Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites."
2. "Is the proposal's appearance in harmony with the buildings around it, and the character of the street?
1. The amended DA has addressed the streetscape to have a sympathetic relationship with adjoining development as can be observed from the aerial photograph in par [3] above, and Texco Design Streetscape Analysis Plan 004 Rev C dated 16 June 2021 (Ex A Plan 004).
2. The Applicants have addressed the landscaping in the front setback, side setbacks and rear setbacks of the development, as set out in the Landscape Plan LPS34 20-53 dated June 2021. [15]
3. The proposed development does not constrain development of the surrounding sites.
4. The amended DA is in harmony with the development surrounding it, particularly in relation to the allotments to the west, and the built form on the streetscape to the east.
[6]
Overdevelopment
The "overdevelopment" contention merits consideration pursuant to s 4.15(1)(a)(i) and (iii) of the EPA Act, and has been addressed by the amended DA in that the amended DA now:
1. Complies with the FSR control;
2. Is compatible with the character and streetscape;
3. The excessive hardstand area at the rear has been reduced and moved to the middle of the Site, allowing landscaping at the rear setback;
4. The development is similar to that in the allotments to the west, as can be observed on the aerial photograph in par [3] above and Plan 004 in Ex A; and
5. Is now consistent with the desired future character of development within the Zone R2.
[7]
Heritage Conservation
Consideration is to be given to heritage conservation pursuant to s 4.15(1)(a)(1) of the EPA Act as cl 5.10(5) of FLEP 2013 provides:
The consent authority may, before granting consent to any development -
(a) on land on which a heritage item is located, or
(b) on land that is within a heritage conservation area, or
(c) on land that is within the vicinity of land referred to in paragraph (a) or (b)
Require a heritage management document ….
1. The Applicant filed a heritage report by Mr Graham Brooks of GBA Heritage "DA 351.1/2019 Statement of Heritage Impact Proposed Development 9 Waratah Street Old Guildford" [16] which noted that the Site is not listed as a heritage item on any statutory instrument. However, it is in the vicinity of a local heritage item "Federation House - Item 184" at 5 Waratah Street, Guildford, which is listed on Schedule 5 of FLEP 2013.
2. Figure 6 of Mr Brooks' report [17] sets out clearly the streetscape relationship between the amended DA, its neighbouring property at 7 Waratah Street, and the heritage item at 5 Waratah Street.
3. Mr Brooks comments on p 6 of Ex L:
"…the subject site is not adjacent to any heritage item. The heritage item in the vicinity is separated from the site by large, two storey development at 7 Waratah Street and 2 Shalom Close, which act as a buffer zone between the site and the item. The proposed development is in keeping with the street front scale and appearance of contemporary development in the locality, particularly neighbouring no. 7 Waratah Street which is adjacent to the heritage item. Therefore, the proposal will not dominate the heritage item as it is adequately separated both physically and visually, as seen in Figure 4 (p4). No significant views or vistas associated with the heritage item will be impacted by the development and its visual curtilage, setting and heritage significance will be retained."
And on p 8 in his conclusions, inter alia:
"The proposed development is consistent with the heritage requirements and guidelines of the FLEP2013 and the Fairfield Citywide DCP2013."
1. I accept the evidence of Mr Brooks that the proposed amended DA will not have a detrimental impact on the heritage item.
[8]
Amenity and Boarding House Design
The Council, in its SOFAC [18] , contended that the DA should be determined by refusal because the proposal will provide an unacceptable level of amenity for future boarders, having regard to the unacceptable design of the boarding house. Council relied upon clause 10.7.7 in Chapter 10 of FDCP 2013 in relation to Boarder Amenity, Safety and Privacy. The amenity of the boarding house design is a matter for consideration pursuant to s 4.15(1)(a)(iii):
1. The Applicant has addressed Council's concerns by amending the DA in relation to the communal loungeroom areas, the communal laundry facilities, ensuring cross ventilation, ease of access to parking, and addressing acoustic impacts.
2. The Applicant filed an acoustic report from Acoustic Consulting Engineers Pty Ltd. Dated 2 July 2021: [19] Mr Dan Dang, Principal Acoustic Engineer with Acoustic Consulting Engineers Pty Ltd found in the Summary on p 7 of Ex F, inter alia:
"The site inspection, noise measurements and assessment have shown that the environmental noise and acoustic privacy between sole-occupancies can be controlled by appropriate equipment selection, siting and employing appropriate construction systems."
1. I note the amended Plans in Ex A, B and C, the Plan of Management in Ex H, and the following proposed conditions of consent in Ex 4 in relation to the amenity of the occupants: 12 (Landscape Management Plan); 37 (Environmental Report Certification); 38 (Landscape Completion); 39 (Boarding House Registration on NSW Fair Trading State Register); 40 (Acoustic Certification which includes construction of acoustic boundary fences at 1.8m), 42 (Waste Management); and 80 (Plan of Management).
2. I find that the amenity and boarding house design complies with the objectives of control 10.7.7 in Chapter 10 of FDCP2013.
[9]
Acoustic, Privacy and Safety Impacts
Council contended in its SOFAC (Ex 2) that insufficient information had been provided to enable it to assess the acoustic, privacy and safety impacts on adjoining neighbours. Acoustic, privacy and safety impacts are matters for consideration pursuant to s 4.15(1)(1)(iii) of the EPA Act. Control 10.7.8 of Chapter 10 of FDCP2013 provides:
"a) Boarding houses are to be designed to minimise and mitigate any impacts on the visual and acoustic privacy of neighbouring buildings by locating:
a. the main entry point at the front of the site, away from side boundary areas near adjoining properties;
b. communal areas and bedroom windows away from the main living area or bedroom windows of any adjacent buildings;
c. screen fencing, plantings, and acoustic barriers in appropriate location.
b) Council may require an acoustic report …. "
1. The Applicant provided the acoustic report [20] in July 2021. The acoustic report considered noise assessment from mechanical plant, from boarders, and from vehicles, and between sole occupancies (which has been dealt with above). To reduce the potential of noise impacts on neighbours Council has proposed condition 40 in Ex 4 which requires the construction of 1.8m high acoustic boundary fences, and there will be no air-conditioning units.
2. The Applicants' amended DA has the additional provisions to ensure the privacy of the adjoining neighbours:
1. The front setback allows landscaping commensurate with the existing front setback landscaping in Waratah Street.
2. The rear balconies have been removed to prevent overlooking of neighbours' properties.
3. The principal windows face north or south, and therefore there is no infringement of neighbours' privacy.
4. The downstairs' window facing to the western neighbour will be partly obscure glass.
5. The Applicants have inserted a garage door at the entrance to the property, in line with other properties in Waratah Street. The area above the garage is a non-trafficable area.
6. The Council has proposed the following conditions in Ex 4:
1. Condition 56: "There shall be no music within the outdoor common area at any time. There shall be no installation or use of any Public Address System within that area."
2. Condition 63: "The communal open space area shall not be utilised between the hours of 9pm and 7.30am - Seven (7) days a week."
3. Condition 64: "The indoor communal area shall not be utilised between the hours of 10pm and 6am - Seven (7) days a week."
4. Condition 71: "The name and telephone number on a 24 hour basis of the boarding house manager and/or resident caretaker shall be distributed to all adjoining and neighbouring properties within 100 metres of the premises through a letterbox drop……"
5. Condition 72 for a Register of Complaints and Incident Diary.
6. Condition 76: "All vehicles shall enter and exit the site in a forward direction."
7. Condition 77 which provides for landscape management.
1. The amended plans [21] provide ceiling fans in the boarding house in lieu of air-conditions units thereby reducing potential plant generated noise.
[10]
Parking
In the SOFAC Council raised a contention in relation to the proposed car, bicycle and motorcycle parking spaces as they did not meet the manoeuvrability requirements of AS2890.1.2004. Council also raised the issue that the proposed disabled parking place did not meet the requirements of AS2890.6.2009 and inadequate pedestrian access had been provided. Parking is a matter for consideration pursuant to s 4.15(1)(a)(i) of the EPA Act as cl 29(2)(e) of the ARHSEPP applies:
(e) parking if -
(i) in the case of a development application made by a social housing provider for development on land in an accessible area - at least 0.4 parking spaces are provided for each dwelling containing 1 bedroom, at least 0.5 parking spaces are provided for each dwelling containing 2 bedrooms and at least 1 parking space is provided for each dwelling containing 3 or more bedrooms.
The Applicants' amended DA moved the proposed car parking from the rear of the site to the middle of the site, and together with the following reports addresses the contention:
1. Parking Design Statement by PDC Consultants dated 11 August 2021 [22] . This report found on p2 that "the car, motorcycle, and bicycle parking requirements and provision remain unchanged from the DA submission to the amended DA. However, the parking provision meets the minimum requirements of the ARHSEPP, and the development cannot therefore be refused consent on the grounds of parking provision. However, also on page 2 the Report found that the internal parking arrangements comply with the relevant requirements of AS.2890.1, AS 2890.3 and AS 2890.6 in relation to driveway width, car parking spaces, the accessible car parking space, bicycle parking, motor cycle spaces and pedestrian access.
2. Access Report by Design Consulting dated 4 May 2021 [23] . This report dealt with the accessible car parking space as required by the development. The report also deals with other features of the amended DA which are required for people with a disability.
3. Council proposed the following Condition 76 (Vehicle Movements) and 79 (Car Parking) in Ex 4 [24] to ensure that the motor vehicles enter and exit the Site in a forward motion, and the car parking on site would be sufficient to comply with AS2890.1.2004 and AS2890.1.2004.
4. I am satisfied that the car parking, swept paths, and pedestrian safety are satisfactory and meet the requirements of ARHSEPP.
[11]
Waste
Council's SOFAC [25] raised a contention that the DA did not make adequate provision for the storage and collection of waste from the site. Waste is a matter for consideration pursuant to s 4.15(1)(a)(iii) of the EPA Act as:
1. Clause 10.7.10 in Chapter 10 of FDCP2013 requires the Plan of Management to address waste minimisation, recycling and collection arrangement.
2. Clause 10.7.7 in Chapter 10 of FDCP2013 provides that boarding houses must provide communal garbage storage and recycling facilities.
3. Clause 10.7.1 in Chapter 10 of FDCP 2013 makes provision in relation to waste and drying recycling collection as set out in Chapter 5A, clause 5A.7.6 of FDCP2013.
The Applicants filed a report by Loka Consulting Engineers 'Waste Management Plan for 9 Waratah Street, Old Guildford dated 28 May 2021 [26] . The Waste Management Plan set out design requirements on pp 9-14. The design requirements have been included in the draft conditions of consent at Conditions 37 (Environmental Reports Certification); 42 (Waste Management); 66 (Waste Management); 67 (Remove Putrescible Waste at Sufficient Frequency) and 68 (Management of Waste Storage Facilities); and 69 (Storage of Bins).
I am satisfied that the contention in relation to waste management has been resolved.
[12]
Stormwater Management
Stormwater management is a matter for consideration pursuant to s 4.15(1)(a)(i) of the EPA Act. Council contended that the DA should be refused because it has not been demonstrated that adequate arrangements are proposed for the management of stormwater on the Site. In particular:
1. Clause 6.9 of FLEP 2013 states:
Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required -
…
(d) stormwater drainage or on-site conservation….
1. The relevant objectives in Section 3 'Disposal of Stormwater and Connection to Council's Stormwater System' of the Fairfield City Council Stormwater Management Policy are -
1. To direct stormwater runoff to Council's drainage system without adversely impacting on adjoining or downstream properties; and
2. To ensure the efficient and effective planning management and maintenance of Council's existing and future stormwater systems and reduce environmental and property damage.
1. FDCP2013 Chapter 11 deals with Flood Risk Management. The Site is not within an area identified as flood prone.
2. Council's Stormwater Management Policy 2017 has the following objectives for disposal of stormwater and connection to Council's stormwater system:
"3.1 Objectives
1. To direct stormwater runoff to Council's drainage system without adversely impacting on adjoining or downstream properties.
2. To ensure the efficient and effective planning management and maintenance of Council's existing and future stormwater systems and reduce environmental and property damage."
1. The Applicant filed Stormwater Concept Plans on 24 September 2021 [27] :
1. Plan D01-1 Rev D shows the stormwater drainage for the site, together with the onsite detention tank, and proposed box silt arrester pit;
2. The plans show 2 alternatives for an easement for stormwater drainage to Council's stormwater drainage system in Carnation Avenue being Plan D01-2 Rev D shows Option 1, and Plan D02-2 Rev D shows Option 2.
1. Council is satisfied with the Applicants' proposed onsite stormwater management system, and has proposed a Deferred Condition of Consent in Ex 4 pursuant to s 4.16(3) of the EPA Act providing that the DA Consent will not operate until the Applicants have complied with the Deferred Condition of Consent in Schedule A of Ex 4: "Drainage Easement to be Created". The deferred condition is in the following terms:
"An easement one (1) metre in width to drain water shall be created over downstream property/properties in favour of Lot 27 DP 26096. The easement must allow stormwater to be drained from the property to connect to Council's stormwater system in Carnation Avenue. Evidence of registration from Land and Property Information shall be submitted to the Council."
I am satisfied with the provision for stormwater drainage from the Site in accordance with the plans in Ex C, together with the Deferred Condition of Consent in Schedule A of Ex 4.
[13]
Inadequate Information
Council raised a concern in its SOFAC that the DA would create an undesirable precedent in the area, in that the 2 communal rooms could be converted into bedrooms within the meaning of cl 4 of the ARHSEPP. The amended DA plans have resolved Council's concerns as neither of the communal rooms have a wet area which could be converted into a bathroom.
[14]
Public Interest Precedent
Council raised a final contention in its SOFAC that the DA would create an undesirable precedent in the area, and is not in the public interest having regard to the contentions raised in the SOFAC.
The Applicants, in their amended DA, and in the further reports as filed, have resolved Council's contentions as raised in the SOFAC.
In further answer to the matters raised under 'public interest', pursuant to s 4.15(1)(e) of the EPA Act, the Applicants have filed a 'Plan of Management, Boarding House No. 9 Waratah Street, Old Guildford by Nexus Environmental Planning Pty Ltd dated 8 September 2021. The purpose of the Plan of Management is set out in clause 4.1:
1. Ensure an acceptable level of resident amenity, safety and privacy to meet the needs of residents.
2. Minimise the adverse impacts to adjoining properties and the locality.
3. Maintain the internal and external appearance of the boarding house.
4. Identify a procedure for reporting, processing and resolving complaints.
5. Make provision for the Plan of Management to be amended, as necessary over time, with the approval of Council, in order to facilitate the timely and responsive operational changes to improve and maintain residential amenity both within and external to the site.
The Boarding House will be registered with the relevant State government authority and the Council.
Clause 4.4 of the Plan of Management provides that the Boarding House is to be managed by the Managing Agent who will be contactable 24 hours a day, 7 days a week.
Council's contentions are set out in summary form in the table below, together with how the Applicant has amended its application with the consent of Council, and lodged further information so that the Court can be satisfied that the contentions have been resolved.
No Contention Resolution
1 Floor space ratio: the maximum FSR permitted pursuant to the Floor Space Ratio Map in FLEP 2013 is 0.45:1 Complies: the FSR is 0.45:1.
2 Character and streetscape cl 30A of ARHSEPP: The presentation of the development to the street has been amended in the updated plans to ensure that it is compliant with the character and streetscape of the surrounding development.
3 Overdevelopment The amended development now complies with the FLEP 2013's FSR control, and the development has been divided into 2 multi-dwellings so as to reflect the development of the surrounding area, both from a streetscape perspective and also from the Site development, particularly with respect to the adjacent dwelling to the west.
4 Heritage Conservation The heritage expert, Mr Graham Brooks, has determined that the amended DA will not have any discernible impact on the local heritage item.
5 Amenity and Boarding House Design The amended DA addresses the amenity of future boarders, including acoustic, windows, cross ventilation and communal facilities.
6 Acoustic, Privacy and Safety Impacts The amended DA has been designed to minimise and mitigate impacts on the visual and acoustic privacy of the neighbouring properties by having the main entry at the front of the site, the communal areas away from bedroom windows of adjoining properties, no overlooking and conditions of consent to ensure the ongoing amenity of the neighbouring properties.
7 Parking (Council has 2 Contentions numbered '6' in its SOFAC) The Applicants have filed a Parking Design Statement by PDC Consultants dated 11 August 2021 which demonstrates the parking arrangements are compliant with the Australian Standards.
8 Waste Management The amended DA plans and the Waste Management Plan by Loka Consulting Engineers demonstrate that the waste contention has been resolved.
9 Stormwater Management The amended DA and the Stormwater Concept Plan, together with the proposed Deferred Condition of Consent have put in place a plan to resolve the stormwater management contention. The DA consent cannot become operational until the Applicant complies with the Deferred Condition of Consent in Schedule A in Ex 4.
10 Inadequate information The amended DA plans resolve this issue by ensuring that the communal rooms are not capable to being converted into bedrooms.
11 Public interest and precedent The above contentions have been resolved to Council's satisfaction, and the Plan of Management for the Boarding House resolves that contention that the proposed amended DA is not in the public interest.
[15]
Draft State Environmental Planning Policy (Housing) 2021
Clause 4.15(1)(a)(ii) of the EPA Act requires the Court to take into consideration any proposed instrument that has been the subject of public consultation under the EPA Act.
In Ex 3: Council's Bundle of Documents, Council included information on the proposed consolidated State Environmental Planning Policy (Housing) 2021 to be known as the Housing Diversity SEPP:
1. Tab 17: NSW Planning, Industry & Environment's Explanation of Intended Effect for a new Housing Diversity SEPP;
2. Tab 18: Public Consultation Draft dated 28 July 2021: State Environmental Planning Policy (Housing) 2021 (Housing Diversity SEPP);
3. Tab 19: Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021 dated 28 July 2021;
4. Tab 20: NSW Planning, Industry and Environment - Housing SEPP consultation draft: Frequently Asked Questions.
I was advised by Council that the draft SEPP had been on exhibition from 29 July 2021 to 9 September 2021. The public had the opportunity to make submissions during the exhibition period, and the status of the SEPP is "under consideration" according to the NSW Planning Industry & Environment's website on 27 September 2021.
In Yessaeian v City of Ryde [2018] NSWLEC 1474 at 68-70 Commissioner Walsh asked the question: "What new considerations come forward if the draft LEP is to be taken into consideration?" This question can be applied in relation to the draft Housing Diversity SEPP.
In relation to boarding houses, and the draft Housing Diversity SEPP's possible impact on the amended DA, I note:
1. Clause 22 proposes that Boarding houses will be permitted with consent, and provides -
(1) Development for the purposes of a boarding house may be carried out with consent on land on which development for the purposes of a boarding house is permitted with consent under another environmental planning instrument.
(2) Development for the purposes of a boarding house must not be carried out on land in Zone A2 Low Density Residential or an equivalent land use zone unless -
(a) for land in the Greater Sydney region - the land is within an accessible area, or ……. [28]
1. In its introduction to boarding houses in its Explanation … the NSW Planning Industry & Environment states:
"As with student housing, the boarding house provision of the ARHSEPP are currently being used to development co-living developments, otherwise known as 'new generation' boarding houses. These are developments that share many features with traditional boarding houses, such as small private rooms for one or two people and access to communal living areas with other facilities. However, new generation boarding rooms are typically self-contained, with private bathroom and kitchenette facilities. The proposed introduction of an affordability requirement for boarding house development as set out above in this EIE would mean that this type of housing is no longer facilitated by the planning system.
"Evidence suggests that there is demand for this type of small and self-contained dwelling - particularly when located in close proximity to reliable public transport and services. The demand for co-living is driven by changing preferences, with many people willing to trade size of living spaces for access to desirable locations." [29]
1. Boarding house development will not be mandated in the R2 Low Density Residential Zone, but it will be permissible if it is limited to 12 rooms and is 'accessible' pursuant to cl 22(2). The current ARHSEPP has been amended to limit boarding houses in R2 Zone to 12 boarding rooms per site, and only within an 'accessible area'. [30]
2. It does not appear that the question of whether boarding houses will be permitted in Zone R2 has finally been determined for the Housing Diversity SEPP. However, if it is determined to exclude boarding houses from Zone R2 Low Density Residential, and if councils and communities want to permit boarding houses within the R2 Low Density Zone, these councils would be able to amend their local environmental plans to make boarding house permissible in the R2 zone in their local areas (and no doubt limited to a maximum of 12 rooms and the land being 'accessible') [31] .
In Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138, Pearlman CJ (as she then was) stated:
"33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 202; Parramatta City Council v Takchi (Stein J, NSWLEC, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref's evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case."
In relation to the amended DA, Council does not object to the boarding house being located in the Zone R2 land as proposed.
As the Housing Diversity SEPP is under consideration, the exhibition date expiring on 9 September 2021, the SEPP is not yet certain and imminent as the submissions are to be considered, and the documentation appears to permit boarding houses within Zone R2 Low Density Housing under certain conditions, and also exclude it from the Zone R2. However, it is certain that the Housing Diversity SEPP will be proclaimed at some stage in the future, and one of the issues it is considering is whether boarding houses are not mandated for Zone R2 land, and whether boarding houses should be permitted in Zone R2 if they are 'accessible' as that term in currently defined in ARHSEPP. Notwithstanding the fact that the draft Housing Diversity SEPP may exclude boarding houses from the R2 Zone, it is uncertain whether the Council would include/exclude boarding house development with the limitation of 12 boarding rooms, and being 'accessible', from its FLEP 2013.
At the present time Council is permitting boarding houses in the Zone R2 land provided it is confined to 12 boarding rooms, is 'accessible', and otherwise complies with the planning regime.
[16]
Findings
The DA was lodged with Council in compliance with cl 49(1)(a) of the EPA Regulation [32] .
The Council notified the DA, and the amended DA in accordance with cl 77 of the EPA Regulation. Following both notifications, Council received strong opposition to the DA from adjoining neighbours.
The Council determined the DA by way of refusal. [33]
The Applicants filed a Class 1 appeal on 5 February 2021 [34] in accordance with s 8.7 and within the time provisions of s 8.10 of the EPA Act.
The Appeal falls within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the LEC Act.
Council filed a SOFAC on 31 March 2021. [35]
During the s 34(1) conciliation conference the Applicant amended the DA and filed additional information with the consent of the Council. Council consented to the amended plans and documentation in accordance with cl 55 of the EPA Regulation. The parties requested that I terminate the s 34 conciliation conference, and that I dispose of the matter in accordance with s 34(4)(b)(i) and (ii) of the EPA Act.
The hearing commenced on 27 September 2021, and 3 neighbours addressed the Court. The objections to the DA and amended DA are set out in par [20]-[22] above.
The DA complies with ARHSEPP and cl 4.4 of FLEP 2013 in that it complies with the FSR standard within Zone R2.
I have considered 'whether the design is compatible with the area' in accordance with cl 30A of ARHSEPP and clause 10.7 in Chapter 10 of FDCP2013. I find that the design of the boarding house is compatible with the neighbourhood character.
ARHSEPP cl 29(2)(b) sets out a standard that cannot be used to refuse consent - if the landscape treatment of the front setback area is compatible with the streetscape. In this case I find that the landscaping in the front setback is compatible with the streetscape of the area.
I find that the amended DA complies with the neighbourhood character in accordance with clause 10.7.1 in Chapter 10 of FDCP2013 as it has a sympathetic relationship with adjoining development so as to be capable of successfully integrating with neighbouring properties.
The overdevelopment contention has been addressed by the Applicants complying with the FSR control for the Site, and redesigning access and car parking.
I find that the amended DA is consistent with the heritage requirements and guidelines of the FLEP 2013 and the FDCP2013.
The amended DA complies with clause 10.7.7 in Chapter 10 of FDCP2013 in relation to the amenity, safety and privacy of future boarding house members.
Sufficient information has now been provided to enable assessment of the acoustic, privacy and safety impacts on adjoining neighbours. The amended DA complies with control 1.7.8 of Chapter 10 in FDCP2013 in that it has been designed to minimise and mitigate any impacts on the visual and acoustic privacy of the neighbouring properties by locating:
The main entry point at the front of the Site, away from side boundary areas near adjoining properties;
Communal areas and bedroom windows away from the main living area or bedroom windows of any adjacent buildings;
Providing landscaping and acoustic fencing in appropriate locations.
The car parking, swept paths, pedestrian safety are satisfactory in that they:
Meet the requirements of ARHSEPP; and
Meet the relevant requirements of AS.2890.1, AS 2890.3 and AS 2890.6 in relation to driveway width, car parking spaces, the accessible car parking space, bicycle parking, motorcycle spaces and pedestrian access.
The Applicants have demonstrated that adequate arrangements are proposed in relation to waste managements including waste minimisation, recycling, collection, communal bin storage area, private operation to conduct waste and collection. The amended DA, the Waste Management Report [36] and the conditions of consent proposed in Ex 4 demonstrate that the Applicants have complied with the provisions of clauses 10.7.1, 10.7.7 and 10.7.10 in Chapter 10 of FDCP2013.
There are adequate arrangements for the stormwater drainage management and on-site conservation in accordance with cl 6.9 of FLEP 2013 as demonstrated in the Stormwater Concept Plans [37] , and the proposed Conditions of Consent in Ex 4.
Sufficient information has now been provided by the delineation of 10 single boarding rooms, 2 single boarding rooms (including one accessible), and 2 communal areas in accordance with cl 4 of ARHSEPP. A survey plan has been provided in Ex A.
The amended DA is in the public interest as the proposal:
1. Complies with the objectives of the Zone R2;
2. Complies with cl 3: the objectives of ARHSEPP;
3. Complies with cl 27 of ARHSEPP as it is located in an accessible area in that it is 160m from a regular bus service (control is 800m);
4. Complies with cl 30AA of ARHSEPP in that it has no more than 12 boarding rooms;
5. Complies with cl 30A of ARHSEPP as the DA as amended is compatible with the character of the area;
6. Complies with cl 6.9 of FLEP 2013 (Essential Services);
7. Provides affordable rental housing for those people in need of short-term quality housing, e.g. a person going through a divorce which would enable the person to stay in the area near his former family, or an accessible room for 2 people allowing a carer to be housed with a disabled person in need of short-term accommodation;
8. The boarding house will allow quality accommodation for boarders to live with comfort, dignity and a sense of privacy (as necessary);
9. The Applicants have resolved the contentions raised by Council.
The Applicant has filed an updated BASIX Certificate [38] which satisfies the NSW's Governments requirements for sustainability by setting out the terms and commitments in the Certificate, and is in accordance with cl 55A(3) of the EPA Regulation.
Clause 29(2) of ARHSEPP provides that I must not consent to the development if it is in breach of the following controls. However, I find that the amended DA complies with the following controls: cl 29(2) building height (less than 9m); cl 29(2)(b) landscaped area (compatible with the streetscape); cl 29(2)(c) solar access (the communal rooms receive the required solar access); cl 29(2)(d) private open space; cl 29(2)(e) parking; cl 29(2)(f) accommodation size; cl 29(3) kitchen and bathroom facilities (each room has its own kitchen and bathroom facilities).
I am satisfied that the following controls in cl 30(1) of ARHSEPP are satisfied by the amended DA: cl 30(1)(a) communal living rooms; cl 30(1)(b) maximum boarding room size; cl 30(1)(c) maximum number of lodgers; cl 30(1)(d) bathroom and kitchen facilities, cl 30(1)(h) bicycle and motorcycle parking.
[17]
Landscape Plan as prepared by Conzept Landscape Architects;
1. LPS34 20-53, Page 1, Revision E, dated 16.06.2021
2. LPS34 20-53, Page 2, Revision E, dated 16.06.2021
3. LPS34 20-53, Page 3, Revision D, dated 16.06.2021
4. LPS34 20-53, Page 4, Revision D, dated 16.06.2021
1. Stormwater plans as prepared by LOKA Consulting Engineers, Job Number 20NL162, Drawing Number:
1. D01-1, Revision D, Dated 13.08.2021
2. D01-2, Revision D, Dated 13.08.2021
3. D02, Revision B, Dated 31.05.2021
4. D03, Revision B, Dated 31.05.2021
1. Traffic Report as prepared by PDC Consultants Ref 0368r01v04 dated 11 August 2021
2. Access Report as prepared by Design Right Consulting dated 4 May 2021
3. Acoustic Statement as prepared by Acoustic Consulting Engineers Ref. 201155-01L-DD dated 2 July 2021
4. Waste Management Plan as prepared by LOKA Consulting Engineers, Job Number 20NL162-WMP3 dated 28 May 2021
5. Plan of Management as prepared by Nexus Environmental
1. The respondent, Fairfield Council, lodged a copy of the amended DA on the NSW Planning Portal on 23 September 2021.
2. The applicants filed a copy of the amended development application on 24 September 2021.
The Court Orders:
1. The appeal is upheld.
2. Development is granted to Development Application No 351.1/2019 for a boarding house with 10 single rooms, 2 double rooms (including 1 accessible room), 3 motorbike parking spaces, 3 bicycle parking spaces, and 6 car parking spaces (including 1 accessible car parking space), together with 2 indoor communal lounges, an outdoor communal area, and landscaping subject to the conditions set out in Annexure A.
3. The applicants are to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed within 28 days of the orders being made by the Court.
4. The exhibits are to be returned, except for: 2, 3 (Tabs 1, 2, 3, 10, 11,12), A to M.
[18]
Acting Commissioner of the Court
Annexure A (237754, pdf)
Plans (6960002, pdf)
[19]
Endnotes
Ex 2: Statement of Facts and Contentions filed 31/03/21 p 2.
Ex 1 Tab 1: Applicant's development application as lodged with Council
Ex 1 Tab 9: Council's notification to application of determination of DA by refusal
Ex K: Application Class 1 filed 5 February 2021
Ex A: Applicants' Amended Development Application Plans
Ex B: Applications' amended Landscape Plans
Ex C: Applicants' Stormwater Concept Plans
Ibid Ex A
Ex B: Stormwater Plans
Ex C: Landscape Plans
Ex 3: Council's Bundle of Documents, Tabs 3, 12 .
Ex 2: Council's Statement of Facts and Contentions filed 31 March 2021
Ex 1: Notice of Objectors
Ibid Ex 2
Ibid Ex C
Ibid Ex L
Ibid Ex L
Ibid Ex 2
Ibid Ex F Noise Assessment Report
Ibid Ex F
Ibid Ex A
Ibid Ex D
Ibid Ex E
Ex 4: Draft Conditions of Consent
Ibid Ex 2
Ibid Ex G
Ex B: Stormwater Concept Plan, Plans D00 Rev C, D01-1 Rev D Option 1, D01-2 Rev D Option 2, and D02 Rev B, by Loka Consulting Engineers
Ibid Ex 3: Tab 17, p 411
Ex 3: Tab 17, p 397
Ex 3: Tab 17, p 399
Ex 3: Tab 17, p 399
Ex K: Applicants' Class 1 Application
Ex 3, Tab 10: Council's Bundle of Documents
Ex K: Application Class 1
Ibid Ex 2
Ibid Ex G
Ibid Ex C
Ex M: BASIX Certificate No. 113293M_02 dated 13 August 2021.
Ex J: Statement of Environmental Effects by Nexus Environmental Planning Pty Ltd, p 14
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: 18 October 2021
Pursuant to cl 7(1) of State Environmental Planning Policy No. 55 - Remediation of Land, I find that the photographic evidence shows that the Site has a minimal risk of harm to human health as the Site was rural in 1943, and has only been developed for low density residential. [39] The Site does not pose a risk of contamination, and as such, the Site is suitable for the proposed use.
I am satisfied that the amended DA complies with the environmental planning instruments, and in considering s 4.15 of the EPA Act, there is no reason to refuse the amended DA.
I find that the draft Housing Diversity SEPP is not certain or imminent as to the inclusion/exclusion of 'boarding houses' with 12 rooms and 'accessible' within Zone R2 Low Density Residential, as it is 'under consideration', meaning that the NSW Planning, Industry and Environment is considering the submissions made after exhibition of the instrument ended on 9 September 2021. On the current drafting of the draft Housing Diversity SEPP, Council would be able to amend FLEP 2013 to permit boarding houses in the Zone R2 land provided the boarding house was limited to 12 rooms and it is 'accessible' as currently defined by ARHSEPP. I have considered the draft Housing Diversity SEPP pursuant to s 4.15(1)(a)(ii) of the EPA Act and find that even if the SEPP excluded boarding houses from Zone R2 when it is gazetted, boarding houses may still be permitted if they are less than 12 boarding rooms, and 'accessible'. I find that the draft Housing Diversity SEPP does not exclude or prohibit consent being granted to the amended DA.
I have considered the proposed Conditions of Consent in Ex 4 and find that they comply with s 4.17(1) of the EPA Act.
I find that the amended DA should be determined by the grant of consent pursuant to s 8.14 of the EPA Act and ss 4.16 and 39(2) of the LEC Act subject to the proposed conditions in Ex 4, being a deferred condition of consent in Schedule A, and conditions of consent in Schedule B.
The Court notes that:
1. Fairfield City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicants amending the development application no. 351.1/2019 filed with the Court on 5 February 2021 as follows:
1. The development plans as prepared by Texco Design, Project Number 2029;
Plan Drawing No. Revision Date
General Demolition Plan 003 C 16.06.2021
General Streetscape Analysis 004 C 16.06.2021
General Site Plan 005 C 16.06.2021
General GFA Calculation 006 G 10.08.2021
General Landscape Calculation 007 E 30.07.2021
Easement Site Plan Option 1 011 01 30.07.2021
Easement Site Plan Option 2 012 01 30.07.2021
Ground Floor Plan 101 F 30.07.2021
First Floor Plan 102 F 10.08.2021
Roof Plan 103 D 16.06.2021
North & South Elevation 201 D 16.06.2021
East & West Elevation 202 G 10.08.2021
Section A B C D 301 G 10.08.2021
Material Schedule 401 F 10.08.2021
Windows & Door schedule 501 F 10.08.2021