Land and Environment Court of New South Wales CITATION : Sydney Missionary Bible College v Burwood Council [2006] NSWLEC 466 APPLICANT Sydney Missionary Bible College PARTIES : RESPONDENT Burwood Council FILE NUMBER(S) : 10257 of 2005 CORAM: Tuor C Development Application :- Consent Orders Student accommodation KEY ISSUES: Impact on views and privacy car parking overdevelopment impact on conservation area and heritage item LEGISLATION CITED: Burwood Planning Scheme Ordinance 1979 Burwood Local Environmental Plan No 19 DATES OF HEARING: 27/06/2006, further information and amended plans filed 20/07/2006, conditions file 25/07/2006 DATE OF JUDGMENT: 07/28/2006 APPLICANT Mr A Perkins, solicitor Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird, solicitor Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 28 July 2006 10257 of 2005 Sydney Missionary and Bible College v Burwood Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Burwood Council (the council) of a development application (D204/2003) to demolish the two existing buildings and construct student residential accommodation at the Sydney Missionary and Bible College, 43-45 Badminton Road, Croydon (the site). 2 The issues were resolved and the parties sought consent orders from the Court. 3 Details of the site, its context, history of the development and the planning controls are in the Statement of Basic Facts and the report of the council officer to the Council meeting on 2 November 2004, which recommended approval of the application (council report). 4 The site is zoned Residential 2(a) under Burwood Planning Scheme Ordinance 1979 (BPSO 1979). The college is an educational establishment and the proposal is permissible with consent in the zone. Under Burwood Local Environmental Plan No 19 (LEP 19) the site is within a conservation area and contains two buildings which are identified as heritage items being 43–45 (Ooma House) and 29 (Carlyon House), Badminton Road. 5 Council refused the application on 2 November 2004 for the following reasons: 1. Issues of privacy affecting the amenity of the residents to the west of the site has not sufficiently been addressed. 2. The proposed development results in an over intensification of the current site 3. Number of homes and number of people not satisfactorily addressed. 4. Lack of appropriate car parking for the use as proposed. 5. The proposal is an overdevelopment of the site in that it is located in a residential 2(a) area. 6. The development will result in a loss of residential amenity to the surrounding area. 7. The development will have a detrimental impact on the area through increased traffic. 8. The development will have a negative impact on heritage items located on or near the site. 6 The applicant subsequently lodged an appeal to the Court. The Statement of Issues contained two key issues being the loss of views to 22 and 24 Claremont Road and whether the provision of off street parking was adequate. 7 Amended plans were submitted on 27 March 2006 which lowered the roof ridge height of building Cluster 6 (located adjacent to the western boundary) from RL 43.75 to RL 43.32 and provided four additional; car parking spaces (an increase of 29 space and a total of 83 spaces for the site). A Planning Agreement was also agreed to be entered into by both parties, whereby the applicant is to contribute $50,000 to council, to be used to upgrade the footpath and driveways in Badminton Road and for the undergrounding of overhead electrical and telecommunications cables along Badminton Road. Draft conditions of consent were also agreed upon. On this basis the parties agreed to consent orders. 8 The Statement of Issues also included issues raised by objectors. The hearing was held on site and a number of residents gave evidence. Their concerns can be summarised as the proposal being an overdevelopment of the site, which would have an adverse impact on the conservation area, the heritage buildings on the site and residential amenity, particularly during construction. The residents were concerned that the amended plans did not address the reason for refusal. 9 Following the hearing I requested a supplementary report to the council report be prepared to address the reasons for refusal and why consent was now proposed to be granted. This report was filed on 20 June 2006. Following receipt of this report, I requested further information on traffic, heritage and the planning agreement. Amendments to the conditions and to the plans were also required to address inconsistencies and inaccuracies between the plans and elevations and in the conditions. This information was filed on 20 July 2006 with the agreed conditions filed on 25 July 2006. Issues View loss and privacy 10 The lowering of cluster 6 has minimised the view loss to 22 and 24 Claremont Road. The distant views to the city will be retained but the outlook from these properties will change as they will look onto a two storey building setback approximately 2.6m from the common boundary. Conditions have been included to provide landscaping along this boundary to screen the building and treatment to some windows of cluster 6 to limit privacy impacts. The impacts of this building are not unreasonable or beyond that to be expected for a two storey building in a residential zone. Car parking 11 In relation to the adequacy of car parking on the site, council commissioned a traffic report by Mr C McLaren, traffic engineer. This report concluded that there is an existing shortfall of parking in the site. The proposal will meet the needs for additional parking generated by the proposal but there will still be a shortfall of 10 spaces. The report did not identify any adverse impacts on traffic in the local area but recommended that council consider implementing a resident parking scheme. At this stage council does not consider such a scheme is required. The report recommended an access assessment be undertaken. Council considers that access issues have been adequately addressed by the conditions of approval which require compliance with the relevant Australian Standards and Building Code of Australia. 12 As a result of this study the number of spaces was further increased by 4 spaces. Conditions have also been imposed that require the preparation of a parking management plan to increase usage of on site parking. On this basis council considered the parking proposed to be adequate. I accept these conclusions. Overdevelopment 13 The residents were concerned that the proposal would generate increased use of the site. The proposal will replace existing accommodation. A previous court approval (Appeal No 10100 of 1996, dated 28 June 1996) imposed a condition which limited the number of people using the site to 200. The current proposal does not seek to increase this limit and the condition has been reimposed. 14 The residents also considered the height, bulk and scale of the proposal to be an overdevelopment of the site, particularly as it is within a 2(a) residential zone and a conservation area. Photomontages were submitted which indicated that while some buildings will be visible, they will have an acceptable impact. The council report stated that: The proposal is two storeys in height and clustered around a central courtyard. The height of the buildings is similar to that of the surrounding residential area and the College buildings. The development consists of a number of small buildings and the scale of the buildings is considered to be generally in keeping with the area. The buildings are also located at the rear of Badminton Road dwellings and relate well with adjoining developments, in terms of height. 15 The council's heritage planner considered the proposal would have an acceptable impact on the conservation area. The proposal is permissible within the zone and is for a residential use, although within an institutional context. The buildings are of a domestic scale and are consistent with the existing residential character of the area. Heritage 16 The proposal adds a two storey extension to Carlyon House which connects to cluster 1. While it would be preferable for Carylon House to be retained as a separate structure, the addition has an acceptable impact on its heritage significance for the following reasons: · Carylon house has had significant rear additions which have been removed. · The proposed addition appears as a corridor which separates the house from cluster 1. · The addition is lower in height and subservient to the house. · The original form and fabric of the house is able to be interpreted. Orders 17 For the above reasons, I am satisfied that the following consent orders sought by the parties may be granted. 1. The appeal is upheld. 2. Development Application No. 204/2003 proposing the following development: (a) demolition of 2 single storey, timber dormitory buildings, which provide residential accommodation for 20 students; (b) erection of 4 x 2-storey buildings (clusters 1, 2, 4-5 and 6) consisting of 40 bedrooms (or 20 bedrooms and 20 attached study/bedrooms), amenities, a kitchen and living/dinning area; (c) erection of 1 x 2-storey building attached to the eastern end of Wallace House (at the rear of 27 Badminton Road), consisting of 6 bedrooms (or 3 bedrooms and 3 attached study/bedrooms); (d) alterations to the rear of No. 29 Badminton Road to provide 1 x 2-bedroom unit on the 1st floor and a bedsitter on the ground level; (e) an additional 29 car parking spaces are to be provided to give a total of 83 car spaces within the site; and (f) site works at the rear of Nos. 33, 37, 35A and 35 Badminton Road to create car spaces, in accordance with the plans filed on 20 July 2006, is determined by the granting of development consent subject to the conditions in Annexure A. 3. Exhibits, except Exhibits 4, may be returned. __________________ Annelise Tuor Commissioner of the Court 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.