Court Approves Boarding House Development Appeal

The claimant appealed against the council's deemed refusal of a development application for a two-storey building with non-residential use and a boarding house. The court upheld the appeal, finding that the proposal met SEPP ARH requirements and was compatible with local character.

OUTCOME: Allowed

Land and [ADDRESS] South Wales

Medium Neutral Citation: [NAME] v Hurstville City Council [2015] NSWLEC 1043 Hearing dates: 4-5 March 2015 Date of orders: 13 March 2015 Decision date: 13 March 2015 Jurisdiction: Class 1 Before: [NAME]: (1) The appeal is upheld. (2) The development application (DA/2014/0919) for demolition of existing structures and construction of a two storey building comprising non-residential use and parking for six cars at ground floor and a ten room boarding house accommodating a maximum of 19 [NAME] at first floor at 64-[ADDRESS], Peakhurst, is approved subject to the conditions in Annexure "A". (3) The exhibits, except Exhibits 1, A and B, are returned. Catchwords: DEVELOPMENT APPLICATION: construct a two storey building for use as a boarding house with non-residential use and parking at ground level. Contentions resolved. Issues raised by [NAME]: [NAME] and Assessment Act 1979 State [NAME] (Affordable Rental Housing) 2009 Hurstville Local Environmental Plan 2012 Cases Cited: [COMPANY] v Tweed Shire Council [2009] NSWCA 285 [COMPANY] v Wyong Shire Council [2004] NSWLEC 117 Category: Principal judgment Parties: [APPELLANT] (Applicant)

Hurstville City Council (Respondent) Representation: Counsel: [redacted]

Solicitors: [redacted] Ms [APPELLANT] of [NAME] (Respondent) File Number(s): 10559 OF 2014

JUDGMENT 1. This is an appeal under s 97 of the [NAME] and Assessment Act 1979 (EPA Act) against the deemed refusal by the Hurstville City Council (council) of a development application (DA/2014/0919) at 64-[ADDRESS], Peakhurst (site). 2. The contentions raised by council have been resolved through amended plans, conditions and the agreement of the [NAME].

Site and locality 1. The site is rectangular in shape with an area of 669.9sqm with frontages of 16.142m to [ADDRESS] and a right of way at the rear, which provides vehicular access to the site. The site is developed with a two storey commercial building, single storey cottage and outbuildings.

2. Adjoining development to the south, is a two storey mixed commercial residential building ([ADDRESS]) and to the north, is a part one and part two storey dwelling ([ADDRESS]). To the rear of the site is the right of way and two dwellings that front the right of way (1B and [ADDRESS]) and one dwelling which fronts [ADDRESS] ([ADDRESS]). To the east, on the opposite side of [ADDRESS], is a single storey light industrial development.

3. The locality is a mixture of uses and building types. The site is at the northern end of a neighbourhood centre, which comprises four allotments. To the east is the Peakhurst light industrial area and to the north, west and south is a low density residential area.

Background and proposal 1. The development application was lodged with council on 27 May 2014. It was exhibited and a number of objections were received. An appeal against council's deemed refusal of the application was lodged on 10 July 2014. The applicant was granted leave to rely on amended plans on 6 November 2014, which were re-exhibited and further objections received. An Amended Statement of Facts and Contention was filed on 4 December 2014 (Exhibit 1) in response to these amended plans.

2. Leave was granted to further amended plans on 26 February 2015, which are the plans for which consent is sought (Exhibit A). The development application, as amended, seeks consent for the demolition of existing structures and construction of a two storey building comprising non-residential use and parking for six cars at ground floor and a ten room boarding house accommodating a maximum of 19 [NAME] at first floor.

[NAME] controls 1. State [NAME] (Affordable Rental Housing) 2009 ([NAME]) applies. The aims of the policy include: (f) to support local business centres by providing affordable rental housing for workers close to places of work, 1. Clause 8 provides: 8 Relationship with other environmental [NAME] instruments If there is an inconsistency between this Policy and any other environmental [NAME] instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

1. Part 2, Division 3 of [NAME] applies to boarding houses. It applies to land in the B1 zone (cl 26) and permits boarding houses with consent (cl 28). Clause 29 contains standards that cannot be used to refuse consent, including building height, landscaped area, solar access, private open space, parking and accommodation size.

2. Clause 30(1) of [NAME] provides standards for boarding houses, including requirements for communal living room, size and occupancy of a boarding room, provision of bicycle and motorcycle parking.

3. Clause 30A provides: 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.

1. The parties agree that the proposal meets the requirements of [NAME].

2. The site is in Zone B1 - Neighbourhood Centre under the provisions of Hurstville Local Environmental Plan 2012 (LEP). The objectives of the zone which, under cl 2.3(2), the consent authority must have regard to are: To provide a range of small-scale retail, business and community uses that serve the needs of [NAME] who live or work in the surrounding neighbourhood.

1. Boarding houses, and a range of non-residential uses, including [NAME]; [NAME]; [NAME]; Office premises; [NAME]; Take away food and drink premises are permissible with consent in the B1 zone.

2. Clause 4.4 of the LEP contains a development standard for Floor Space Ratio (FSR) with a maximum FSR of 1.5:1 permitted on the site. The FSR proposed is 0.88:1, which is below the maximum. Clause 4.4A of the LEP provides: 4.4A Exceptions to floor space ratios for buildings on land in certain zones (1) Despite clause 4.4, development consent must not be granted for development on land in Zone B1 Neighbourhood Centre or Zone B2 Local Centre unless the non-residential floor space ratio is at least 0.5:1. (2) In this clause, non-residential floor space ratio means the ratio of the gross floor area of that part of a building used or proposed to be used for any purpose other than a residential purpose in a building on the site to the site area.

1. The non-residential floor space proposed is less than 0.5:1 and the applicant provided a written request under cl 4.6. The council contended that the cl 4.6 objection did not justify the contravention of cl 4.4A. However, during the hearing, the parties agreed that cl 4.4A would have the effect of prohibiting a boarding house use, which is permissible under [NAME]. Clause 4.4A is therefore inconsistent with [NAME] and under cl 8, the SEPP prevails. Consequently cl 4.4A is not engaged and an exception to the development standard under cl 4.6 is not required (see [COMPANY] v Tweed Shire Council [2009] NSWCA 285). Contentions 1 and 2 in the proceedings were therefore not pressed. 2. [NAME] 1 (DCP) applies to the site. It does not contain any specific controls that apply to boarding house development but s 3-[NAME] includes requirements for parking (S3.1.4.1).

Evidence 1. [ADDRESS] visited the site and heard from [NAME] whose key concerns were that a boarding house was an unsuitable development for the area due to the type of [NAME] who are likely to live there and the potential for anti-social behaviour; the traffic and parking issues that would result; the bulk and scale of the proposal, which they considered to be an overdevelopment; and the loss in value of their properties. The adjoining owner at [ADDRESS] was also concerned about privacy impacts from the windows facing her back garden, the blank two storey wall, type of trees for screening, existing sewage problems, security and construction impacts. The [NAME] in [ADDRESS] considered that the rear windows and balconies would overlook their properties and that the traffic entering the car park would result in noise, light spillage and safety impacts.

2. Statements of Evidence and Joint Reports were tendered from the following [NAME]: For the applicant Mr [APPELLANT], [NAME] consultant Mr [APPELLANT], architect for the proposal Mr [NAME], [NAME] consultant Mr [NAME], [NAME] consultant For the council Mr [NAME], [NAME] consultant Mr [NAME], architect Dr [NAME], [NAME] consultant 1. The [NAME] were not required for cross examination as they had reached agreement that the contentions relevant to their expertise had been resolved through the further amended plans and conditions. The key changes include: 1. the relocation of the communal open space and common room to the north east end of the building and deletion of a boarding room to improve amenity and outlook (Contentions 4, 7, 9 and 12); 2. the provision of landscape screen planting on the northern boundary and privacy louvres to windows that are setback from the boundary about eight metres, which together with the changes in (1) minimise impacts on [ADDRESS] (Contentions 4); 3. the deletion of a boarding room, change three balconies to Juliette balconies, setback and landscaping at the rear of the building to minimise privacy and streetscape impacts on the properties in [ADDRESS], and overshadowing to the first floor terraces at the rear of [ADDRESS] (Contentions 6 and 9); 4. increased setback and deep soil landscaping to respond to the streetscape character and relationship with [ADDRESS] (Contentions 7 and 9); 5. changes to rooms 5, 6, 10 and 11 to address [NAME] issues and improve internal amenity (Contention 12).

1. I accept the [NAME]' evidence that the matters raised in the Contentions have been adequately addressed and resolved through the amendments to the application and the proposed conditions.

2. The additional matters raised by the [NAME] are not matters that were raised or pressed by council. The [NAME]' concerns principally relate to the proposed boarding house use and its impacts on their residential amenity. The use is permissible under both the LEP and [NAME] and complies with the provisions of both instruments and is clearly a form of development that is envisaged by the [NAME] controls and its impacts must be assessed within this statutory framework.

3. The site is located at a zone boundary and adjoins residential development. In [COMPANY] v Wyong Shire Council [2004] NSWLEC 117 at [25] [NAME] discussed principles that apply to development at a zone interface. He states at [25]:

25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south­east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

1. In applying these principles, the proposed development has not sought to maximise its development potential. It has a FSR and height which are below the FSR of 1.5:1 that is permissible under cl 4.4 and the 9m height limit in cl 4.3 of the LEP. Through the amendments, the proposal has minimised privacy impacts and addressed the streetscape character of a business zone adjoining residential uses. Parking for the boarding house use meets the requirements of [NAME] and cannot be a reason to refuse the application. The parking for the neighbourhood shop or [NAME] does not comply with the numerical requirements in the DCP, however, the applicant has submitted a traffic report, which has been reviewed and accepted by council, that concludes that the shortfall in is acceptable as there is adequate on-street parking in the vicinity. The proposed boarding house will generate significantly less traffic than a development for other uses that are permissible in the B1 zone, such as [NAME] or cafes. The other issues raised by [NAME] would not be reasons to refuse the application.

2. Agreed conditions and amended plans, which incorporate further minor changes such as privacy louvres to the windows of Units 4 and 5, were filed on 11 March, 2015. The conditions include a requirement for a separate development application for the use of the ground floor non-residential space (Condition 2) and that the boarding house must be operated in accordance with a Plan of Management approved by the Council as well as conditions which limit the number of lodgers to 19 [NAME] and noise limits (Condition 38-41).

3. For the above reasons, I am satisfied that the Contentions are addressed and that the development consent may be granted.

Orders 1. The appeal is upheld.

2. The development application (DA/2014/0919) for demolition of existing structures and construction of a two storey building comprising non­residential use and parking for six cars at ground floor and a ten room boarding house accommodating a maximum of 19 [NAME] at first floor at 64-[ADDRESS], Peakhurst, is approved subject to the conditions in Annexure "A".

3. The exhibits, except Exhibits 1, A and B, are returned. [NAME] Commissioner of the Court

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