Land and Environment Court New South Wales Medium Neutral Citation: Thettayil v Burwood Council [2020] NSWLEC 1500 Hearing dates: 20-21 April 2020 and 17 July 2020; final agreed conditions filed on 30 July 2020 Date of orders: 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. 2018/26 for the demolition of the existing site structures and the construction of a two-storey boarding house containing 18 rooms, one manager's room and basement car parking at 269 Georges River Road, Croydon Park, in accordance with the architectural plans outlined in Condition 1 of the conditions of consent annexed hereto and marked 'Annexure A'. (3) The exhibits are returned except for A, B, F and G. Catchwords: DEVELOPMENT APPLICATION – boarding house – flood planning Legislation Cited: Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Housing) 2009 Texts Cited: Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' Category: Principal judgment Parties: Ouseph Francis Thettayil (Applicant) Burwood Council (Respondent) Representation: Counsel: S Berveling (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/387443 Publication restriction: Nil Judgment 1. COMMISSIONER: Ouseph Francis Thettayil (the applicant) applied in March 2018 for development consent to demolish an existing building to allow for the construction of a three-storey boarding house containing 29 rooms and basement car parking at 269 Georges River Road, Croydon Park (the site). 2. The application was referred to the Burwood Local Planning Panel (the Panel) for determination as ten or more separate submissions (objections) were received in response to the public notification of the DA. The Panel determined that the proposal was out of character with the local area due to its height and unbroken façade, inadequate landscaping and insufficient setback to the Georges River Road, which is a classified road. 3. On 17 December 2018, the applicant, being dissatisfied with the Council's determination of its development application, appealed to this Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal was listed for hearing for 2 days commencing on 20 April 2020. In accordance with the relevant COVID-19 Policy, it was agreed that the matter be heard by telephone. Prior to the hearing, on 28 February 2020, leave was granted to the applicant to rely on amended plans (Revision K). The amendments reduced the size of the development to a two-storey boarding house containing 18 boarding rooms and one manager's residence, with basement parking. A direction was also made for the Council to file and serve an Amended Statement of Facts and Contentions (ASOFC) (Exhibit 2). 4. At the hearing in April 2020, the applicant sought leave to rely on further amendments to the plans (Revision M). These amendments resolved the town planning contentions between the parties (town planners' joint report (Exhibit 5)). They did not however resolve the contentions raised in relation to design of the development in terms of protecting the basement car park from flooding, and the RL height of the crest of the driveway in the event of a 1:20 ARI flood event. Nor did the evidence adequately address the matters set out in cl 6.2(3) of the Burwood Local Environmental Plan 2012 (BLEP) or the applicant's ability to comply with condition 88 of the Council's draft conditions (Exhibit 6). Accepting that cl 6.2 of the BLEP requires the Court to be satisfied, before the grant of consent, that the development is compatible with the flood hazards of the land, and that the basement car park incorporates measures to manage risk to life from flood, I agreed to adjourn the matter to give the applicant the opportunity to provide the evidence to enable the Court to be so satisfied. 5. On 17 July 2020, when the hearing resumed the Council agreed to the substitution of a further (and final) set of amended plans in the appeal (Revision R dated 13 July 2020). These final plans, read with the agreed conditions, satisfied the contentions between the parties as set out in the ASOFC and I was invited to determine the DA on the evidence including the objectors' concerns. Decision 1. For the reasons that follow, I have decided to grant development consent to the amended DA subject to the agreed conditions of consent dated 30 July 2020. Evidence 1. The Court had the following evidence. 2. The site is located on the northern side of Georges River Road and mostly within the R1 General Residential zone pursuant to the BLEP – apart from a strip of land along the Georges River Road boundary which is within the SP2 Infrastructure zone and reserved for road widening purposes. 3. There is no dispute that development for the purpose of a boarding house is permissible with consent within the R1 General Residential zone under the BLEP. However, the land area of the development site (at 685.9m2) is slightly smaller than that anticipated by the Council's BLEP. Therefore, the application relies on cl 29(1) of State Environmental Planning Policy (Affordable Housing) 2009 in relation to the proposed floor space ratio. 4. Much of the site is affected by flooding generated by a Sydney Water drainage channel. The proposed development is positioned on the northern side of the site where the land is less flood effected, and the sections of the building that encroach onto the floodplain are supported on reinforced concrete piers spaced and sized to cause minimal obstruction to the flood waters. 5. The site has a secondary access from Stanley Street and vehicular access to the basement car park of the development is proposed from the Stanley Street frontage. Flooding occurs at this frontage and mitigation methods to manage flood risk have been developed during the hearing and include a system of floodgates, strict maintenance regimes and education and training to the permanent onsite management. 6. The parties' flood experts, Millad Rouhana (applicant) and Pablo Barreto (Council) accept that the proposed geometry of the building offers minimal obstructions to the floodplain, and that the resulting increase is 30mm. However, the location and geometry of the system of floodgates within the development was a particular issue in the appeal. The applicant's flood engineer, Mr Rouhana has carried out two Overflow Flood Management Studies to assess the impact of the development on the hydrology of the area and to determine the appropriate entry ramp point and level to prevent flood waters entering the car park (Exhibits D and E). The Council's flood engineer, Mr Barreto disagreed with Mr Rouhana's evidence about the entry point and level and the points of disagreement are set out in these experts' joint report (Exhibit 4, p5). 7. Put simply, the Council contended on the evidence of Mr Barreto that the driveway crest should be located 14.3m back from Stanley Street boundary; and should be at a height of RL 9.48 ADHD, which is the height of the 20-year ARI storm: and a floodgate should be located at this location to prevent the basement for a 100-year ARI storm plus 500mm. 8. After amendments to locate the crest at RL 9.48 and floodgate at 14.3m from the boundary (Rev Q plans) and a floodgate barrier at the top of the crest to protect against the 1:100 ARI flood event, the Council's flood expert was satisfied that the flood contentions raised by the earlier design had been satisfactorily addressed. 9. Other contentions, as set out in the Council's ASOFC at p 27 (items (ii), sub-items (iii), (iv) and (v)) have also been addressed by the amendments and the agreed conditions of consent. In that regard, I note: 1. In relation to sub-item (iii), revised finished floor levels (with ground floor RL being 10.07 ADHD) were included in the amended plans (Revision M) and remain in the further amended plans (Revision R), thus satisfying sub-item (iii). 2. In relation to sub-item (iv) (dealing with the basement fire egresses), the further amended plans (Revision R) and documents for the reliance upon which the Applicant will seek leave, relevantly address the issue of basement fire egress. 3. In relation to sub-item (v), this contention is dealt with by a further amended landscape plan. 1. Several resident objectors provided evidence opposing the DA including: Name Address 1 Mr and Mrs G Tirant 36 Stanley Street, Croydon Park 2 Lina De Marco 32 Stanley Street, Croydon Park and representative of the Enfield Action Group 3 Patrick De Castro 33 Stanley Street, Croydon Park 4 Nicole Smeulders and Paul Beynon 109 Burwood Road, Enfield 5 Therese O'Leary 12/2A Tangarra Street, East Croydon Park 1. These lay witnesses raised concerns about the suitability of the site for use as a boarding house, the incompatibility of such a use with the character of the area, and the unacceptable bulk and scale of the building and the resulting amenity impacts generated by the development. These lay witnesses also, understandably expressed grave concerns about flood impacts for this site and adjoining development and the risk to life. Their written evidence is included in Exhibit 1. Consideration 1. Because the architectural plans have changed several times over the protracted course of the appeal, it is appropriate that I identified at the outset of my consideration that I am dealing with the final design described in the "Schedule of Amendments from Rev M (Rev N), Rev O, Rev P, Rev Q to Rev R" forwarded to the Court under cover letter dated 15 July 2020 from Conomos Legal and substituted in the appeal. The schedule is 'Attachment 1' to my judgment). 2. These changes sought to address the three contentions identified in the ASOFC (Exhibit 2) remaining. The contentions are: 1. Impact on residential amenity to the property to the north and in adequate privacy measures and landscaped planting to address those concerns; 2. Flood planning; and 3. Public interest having regard to the matters raised in the submissions received by the Council after notification of the amended application. Contention 1 1. Based on the evidence now before the Court, I accept that Contention 1 has been resolved. The town planners' joint report (Exhibit 5) deals with amended plans (Revision M). At paragraph 9 of the town planners' joint report, the planners raised the possibility of a review of their conclusions if the amendments to the plans changes the finished floor levels. As I understand the evidence, the finished floor levels have not changed. 2. Furthermore, Mr Mead, the Council's consultant town planner supports the further amended plans (Revision R). Importantly, the planners have also considered the objectors' concerns and have assessed that the reduction in the height and density of the development has addressed any concerns about overshadowing, bulk, and scale and the impacts generated by the three-storey 29-room boarding house first envisaged for the site. After reading the submissions of the objectors and considering their lay evidence, I accept the experts' assessment and I am satisfied that the final design and conditions will not generate unacceptable amenity impacts for the neighbouring sites. It is a different but permissible use on this site and the amended design at 2 storeys is now compatible with the adjoining built form and compliant with all relevant planning controls. Importantly, the site has a live-in manager and the conditions require operation of the development in accordance with a strict plan of management. These features of the approved development will assist in the proper management of the site and help to regulate any unacceptable behaviour of residents within the complex as anticipated by some of the resident objectors. Contention 2 1. As identified earlier and set out on page 5 of the flood engineers' joint report (Exhibit 4), the Council's position has consistently been that: 1. the driveway crest: 1. should be located 14.3m back from the Stanley Street boundary; and 2. should be at a height of RL 9.48 ADHD, which is the height of the 20-year ARI storm; and 1. a floodgate should be located at this location to prevent the basement for a 100-year ARI storm plus 500mm. 1. The plans as amended now accommodate the Council's requirements. The location of the crest and floodgate barrier at 14.3m from the boundary is acceptable to the Council (Joint Report Flood Engineers Exhibit 4, p 5; and also the oral evidence by Mr Barreta on 20 April 2020). 2. A floodgate barrier protecting against the 1:100 ARI event is acceptable to the Council (Joint Report Flood Engineers Exhibit 4, p 5). 3. Additionally, the traffic engineer for the applicant is of the opinion that the proposed driveway is acceptable (Letter from Terraffic dated 26 May 2020). I am also satisfied on the agreed evidence of the flood experts and the traffic engineer that this contention is now resolved. Contention 3 1. This contention is consequential upon contentions 1 and 2. A major issue referred to in the objections received from the local residents was the flooding issue. This has been resolved by the Council's acceptance of the further amended plans (Revision R) dated 13 July 2020 and for the reasons outlined by the experts, no longer a basis for refusal of the DA. Condition 88 1. Condition 88 of the Council's draft conditions provides: "88. Basement fire egresses 1 and 2 shall be protected from ingress of floodwater. No additional flood barrier other than the round columns 300mm shall be accepted on the designated floodplain (top of basement lid). The lift shaft must not be an obstruction to overland flow and shall be located within the ground floor building envelope." 1. It is submitted that as a result of the further amended plans (Revision R) that the design will have the following features: 1. basement fire egresses 1 and 2 now exit internally to the ground floor and are protected from ingress floodwater; 2. no additional flood barrier other than the round columns 300mm2 diameter all so are located on the designated floodplain (top of basement lid); 3. the lift shaft has been relocated outside of the designated floodplain (top of basement lid) and is not an obstruction to overland flow; 1. Based on the further evidence, I now accept that the proposed development can comply with condition 88. Clause 6.2(3) of the BLEP 1. As indicated at the outset of the judgment, the Court must be satisfied before the grant of consent, that the development: 1. is compatible with the flood hazard of the land; and 2. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development of properties – in particular due to the designated floodplain (top of basement lid) between basement and ground floor levels; and 3. incorporates appropriate measures to manage risk to life from flood including, relevantly: 1. peak of access ramp at RL 9.48 14.3m from boundary, to protect against 1:20 ARI storm event; 2. passive tilting floodgate barrier protecting against the 1:100 ARI storm event; 3. emergency egress from the basement internal to ground floor; 4. no additional flood barrier within the designated floodplain (top of basement lid); and 5. fencing suitable to accommodate a flood; and 1. will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses; and 2. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. Based on the Revision R plans and further evidence, I am satisfied of the requirements set out in cl 6.2(3) of the BLEP are met and there is no impediment to the grant of consent on this basis. Conclusion 1. After assessment of all of the evidence, it is appropriate for consent to be granted subject to conditions. 2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. 2018/26 for the demolition of the existing site structures and the construction of a two-storey boarding house containing 18 rooms, one manager's room and basement car parking at 269 Georges River Road, Croydon Park, in accordance with the architectural plans outlined in Condition 1 of the conditions of consent annexed hereto and marked 'Annexure A'. 3. The exhibits are returned except for A, B, F and G. ……………………… S Dixon Senior Commissioner of the Court Annexure A (317330, pdf) Attachment 1 (192784, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2020