Land and Environment Court New South Wales Medium Neutral Citation: Zhao & Anor v City of Ryde Council [2011] NSWLEC 1347 Hearing dates: 6 October 2011, 31 October 2011 Decision date: 31 October 2011 Jurisdiction: Class 1 Before: Hussey C Decision: 1. The appeal is upheld. 2. Development consent is granted to LDA 2011/142 for the demolition of existing dwelling at 5 Koorong Street Marsfield and erection of a new two storey boarding house containing twelve single bedrooms subject to the conditions in annexure A. 3. The exhibits may be returned except 1, 5, 6, A, B, C. Catchwords: Development application: Boarding house; Drainage (OSD), disabled access, compatibility with street character, public interest Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009 City of Ryde Development Control Plan 2010 Ryde Local Environmental Plan 2010 Cases Cited: Project Venture Developments v Pittwater Council (2005) NSW LEC 191 Sanders v Burwood Council [2011] NSWLEC 1282 Category: Principal judgment Parties: Yong Lin Zhao and Hu Jing (Applicants) City of Ryde Council (Respondent) Representation: Solicitors Mr S Kondilios, Maddocks Lawyers (Applicants) Mr T Pickup, Storey and Gough Lawyers (Respondent) File Number(s): 10395 of 2011 Judgment Background 1This appeal was lodged against council's deemed refusal of a development application for the demolition of an existing dwelling and construction of a two-storey boarding house comprising fourteen single bedrooms at 5 Koorong Street Marsfield. 2However, following discussions between the parties, leave was granted to amend the plans, which now propose twelve single bedrooms. 3The contentions identified are summarised as follows: (1)Drainage; concerning the suitability of the proposed OSD system. (2)Disabled access provisions. (3)Compatibility of the boarding house with the character of the existing low density residential area, and (4)Public interest considerations. The proposal 4According to the statement of facts and contentions, the proposal now comprises: Ground floor ; with double garage three single bedrooms with bedroom one being identified as an adaptable unit, two bathrooms, (one adaptable), a separate laundry, kitchen, common room and rear terrace First floor ; nine single bedrooms, three bathrooms, first floor balcony to units 9, 10, 11 and 12. 5Other relevant changes on the amended plans include: (a)Internal courtyard and central garage being deleted (b)Building reduced in size and floor space reduced from 290 sq m to 261 sq m. (c)Number of bedrooms reduced from 14 to 12. (d)Provision of front door entry and porch. (e)Provision of terrace to private open space in rear yard. (f)Front setback has been increased from 6 m to 7.56 m and rear setback increased from 8.45 m to 11.14 m. (g)Provision of the accessible car parking space (total car spaces to 3) flush against the eastern boundary and existing driveway location altered to cater for new driveway location and accessible car parking space. The site 6Number 5 Koorong Street Marsfield is described as lot 3 DP 236727. It has a total area of 581.6 sq m and a frontage of 17.22 m. The site is relatively level with a slight fall from north-west to south-east side. 7The surrounding area mainly comprises low-density detached dwellings, although there are multi-unit housing developments to the west of the site in R3 Medium Density Zone. 8Koorong Street has parking restrictions on both sides -two hours between 8 am and 8 pm Monday to Friday and with permit holders excepted. 9There are two bus stops on the northern and southern sides of Balaclava Road about 70 m from the site. Planning controls 10The principle planning control in this matter is the State Environmental Planning Policy (Affordable Rental Housing) 2009 (AHSEEP) and it applies to the development of the land. This SEPP commenced on 31 July 2009 and Part 2 div 3 of the SEPP deals with boarding houses, which are permissible within Zone R2 Low Density Residential. 11This AHSEPP was amended on 20 May 2011 and introduced the following controls in relation to boarding houses: * Under cl 27 the provision to AHSEPP only apply to boarding houses in an R2 low density residential zone if the land is within an accessible area as defining cl 4 * Under cl 29(2)(e) parking cannot be used as a grounds for refusal if at least 0.2 parking spaces per boarding room are provided if the land is within an accessible area * Under cl 30A, council must consider whether the design of the development is compatible with the character of the local area. 12However cl 54A contains savings and transitional provisions which apply to the site. Wherein 54A(3) requires that for an existing application, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 13The AHSEPP contains the following standards whereby the application cannot be refused consent: 29 Standards that cannot be used to refuse consent (2) A consent authority must not refuse consent to development ot which this Division applies on any of the following grounds: (e) parking if not more than: (i) one parking space is provided for each 10 boarding rooms or part thereof, and Clause 29(2)(e)(i) now requires that: (2) A consent authority must not refuse consent to development to which this Divison applies on any of the following grounds: (e) parking if: (i) in case of development in an accessible area - at least 0.2 parking spaces are provided for each boarding room 14The State Environmental Planning Policy (Building Sustainability Index ) commonly referred to as BASIX also applies to the development. 15The Ryde Local Environmental Plan 2010 (RLEP2010) applies to the development wherein boarding houses are permissible in the R2 lowdensity zone with consent. There are no other specific controls other than floor space ratio as referred to in cl 4.4 of the Ryde LEP or height as referred to in cl 4.3 of the RLEP. 16The City of Ryde Development Control Plan 2010 (DCP2010) applies to the proposed development. The following parts are of most relevance: * Part 2.1 - Notification of Development Applications * Part 3.3 - Dwelling Houses and Dual Occupancy (attached) * Part 7.2 - Waste Minimisation and Management * Part 8.2 - Stormwater Management * Part 9.2 - Access for People with Disabilities * Part 9.3 - Parking The evidence 17Detailed reports were tendered by Mr D Smith, council's control planning, Mr Ian Glendenning, applicant's consulting planner, Mr Nguyen, council's engineering expert, and Mr K Ng the applicant's engineering consultant. 18In addition to individual reports, there was a joint conference between these four experts resulting in a joint conference report, exhibit 5. Drainage 19The engineers agree that the amended plans now provide sufficient OSD capacity within the mounded area in the front setback area. 20From this, they agree that the amended drainage plans are now satisfactory. Accessible parking 21The experts agree that the designated 3.2 by 5.5 m area within the front setback area is acceptable. Character of the area 22There was substantial agreement by the planners that the amended proposal is compatible with the character of the area. Although Mr Smith qualified his agreement in respect of: * the OSD basin in the front lawn not being characteristic of the street * the extent of the formal car parking including the accessible car space in the front setback area was not in character 23Insofar as cl 54A(3) of AHSEPP requires consideration of the consistency of the proposal with the character of the area, Mr Glendenning stated that: Both the LEP and Affordable Housing SEPP permit boarding houses with consent in the R2 low density zone. In his opinion, greater intensity of use on its own, (that is without consideration of any resulting amenity impacts or physical incompatibility) is not a determinative consideration when the Ryde LEP permits development of this type and use in the zone. In Mr Glendenning's opinion, this is not what cl 54A(3) of the AHSEPP requires to be considered by the consent authority. 24Accordingly Mr Kondilios submits that the findings of Commissioner Morris in Sanders v Burwood Council [2011] NSWLEC 1282 are relevant and they include: The consideration required in cl 55A is limited to the design of the development and requires consideration of whether that design is compatible with the character of the local area. I consider this requires assessment of the physical aspects of the built form only and does not extend to the issue of the use or nature of the use of that built form. The applicant submits that the relevant matters or factors for consideration in considering 54A(3) are the following: (a) what is the local area? (b) what is the existing character of the local area? (c) is the design and development compatible with the character of the local area? 25In the context of the current matter it seems appropriate to follow these findings and there was no contrary submissions. Whilst the local area was not defined, it is apparent that because of the mix of the surrounding development, this assessment could be reasonably confined to the subject street and was agreement by the planners to this. 26Mr Glendenning then identified the following characteristics of this local character: (a)Detached dwelling houses (b)Two-storey dwellings (c)Main entry at ground level in front of dwelling (d)Garden landscape area attached dwelling at rear (e)Consistent front alignment common setback from the street (f)Consistent rear alignment of building (g)Front landscaping (h)Side setback of 1 m (i)Driveway located at front of property leading to garage/carport (j)Similar building materials and (k)Similar bulk and scale. 27There was no disagreement from Mr Smith on these items. 28In terms of the compatibility test then, reference was made to the matter of Project Venture Developments v Pittwater Council (2005) NSW LEC 191 where Senior Commissioner Roseth said: There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness , it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance though as different in these attributes increase harmony is harder to achieve. ...Where compatibility between a building and surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. 1. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential and surrounding sites. 2. Is the proposal appearance in harmony with buildings around it and the character of the street? The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment...In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping...(emphasis added) 29I am satisfied that those findings are appropriate to apply in the subject matter and on the basis of the first question, I understand that there were no physical impacts identified arising from the amended plan. 30With regard to the second question, I have considered Mr Glendenning's following compliance table (which was not challenged) dealing with the characteristics of the local area, the design of the proposed development, and the compliance/compatibility. I see from that table there is almost complete compliance/compatibility. Compliance Table Characteristics of Local Area Design of Proposed Development Compliance/ Compatible Detached dwelling house Appears as a dwelling house Yes Two storey Two storey Yes Main entry at ground level at front of dwelling Main entry at ground level at front of dwelling Yes Garden landscape area attached to dwelling at rear Retained Yes Consistent front alignment of building/common setback from street Retained Yes Consistent rear alignment of building Retained Yes Front landscaping Retained by some additional hardstand area for accessible car space Partial Side setbacks of 1 m 1.5 m to west and 2 m to east Yes Driveway located at front of property leading to carport/garage Driveway retained, but additional pavement area provided to eastern side to accommodate disabled parking Partial Building materials Consistency with building materials and style Yes Bulk and scale Is consistent with the height, bulk and scale of all development within the street Yes 31This assessment was mainly supported by Mr Smith who agreed with the assessment table except for permanent/casual parking arrangements and OSD proposal provisions. 32Mr Smith stated in the Joint Report that the formal car park on the driveway and the OSD basin in the front landscaped/setback area are not characteristic of the area but these concerns are not such that they would significantly change the character of the area. 33Apart from this, a number of objections were lodged against the original and amended proposal and they can be summarised as follows: * Type of development is a continuation of the unacceptable proliferation of medium density/high density development in the Marsfield area * Inadequate local services * Adverse amenity impacts * Unsatisfactory parking arrangements in street * Out of character with the area 34In considering these objections I have referred to the responses by Mr Glendenning in his report. Those responses were noted that: (1)The subject site is zoned R2 low density residential under the provisions of the Ryde LEP 2010 and boarding houses are permissible use within the zone. (2)The existing infrastructure is able to support the proposed development. (3)The use of the facility as a boarding house will not create adverse impacts to surrounding development. (4)The consent if issued and the adoption of the plan of management will enable enforcement of rules to ensure that property is maintained in a reasonable manner. (5)This proposal will create no discernible change to the character of the area. (6)The parking that is provided satisfies the requirements of the State police. (7)Subdivision of the boarding house is not permitted. (8)The design of the development is compatible with the character of the area. Conclusions 35Having considered the evidence, submissions and undertaken a view, I am satisfied that the amended application now merits conditional consent. It seems to me that this amended plan substantially responds to the issues and that is confirmed by the overall agreement of the engineers and the planners. 36I rely on the engineers' agreement that the proposed OSD in the front setback area presents a satisfactory solution for stormwater management. I also accept Mr Smith's concerns that whilst this is not a common element in the streetscape, that is probably due to historical reasons where OSD systems were not required when the residential area was developed. 37According to Mr Smith an alternative OSD could be constructed under the large front paved driveway and therefore be less obtrusive. But it seems to me that the proposed wall for the OSD to be constructed along the road boundary has a maximum height of approximately 300 mm and it incorporates an internal garden, so that I do not consider it will have significant adverse visual impacts. 38In the circumstances, I do not consider that the bulk and scale of this OSD will significantly detract from the streetscape or the character of the area to an extent that would warrant a refusal of the application. 39The other concern raised by Mr Smith relates to the extent of hard paving in the front area which exceeds most neighbouring properties. 40In my assessment, the main difference is the accessible car space, (5.5 x 3.2) shown along the eastern boundary with house number 7. 41Considering the discussion between the planners, I consider that the various elements including the benefits of including the accessible space and taking into account the additional parking that occurs in the front of other properties along this street, then this represents a reasonable outcome in terms of the compatibility with the side boundary treatments. This should be improved by the provision of the 1.5 metre vegetative screen adjacent to this space and I am satisfied that the conditions of consent can adequately cover this. 42Another matter raised concerns the safety and amenity of the three motorcycle spaces alongside the southeastern side of the dwelling. In this regard I have considered the discussion between the planners and now accept this could be managed by inclusion in the plan of management for the caretaker to carefully manage this matter. 43The detailed condition offered by the applicant should cover this. I note that this condition is based on the requirement for the tenants of the boarding house to act in a good neighbour basis otherwise their lease will be terminated. 44Insofar as submissions were made about traffic parking impacts, the proposal complies with the AHSEPP provisions. Whilst this may lead to some additional parking on street, nevertheless the location of Koorong Street is such that it must experience a high level of parking because there is a two-hour parking restriction in the area near the subject property. 45In the circumstances, I do not consider any additional parking demands for the residents or visitors of the boarding house will materially affect the environmental capacity or amenity of Koorong Street. 46I also note that the area appears to be well serviced by buses, which should offset to some extent the reliance by boarding house residents on individual cars. I do not consider the application should be refused on the basis of traffic parking considerations. 47In summary then, I am satisfied this is a permissible development and the amended proposal demonstrates reasonable compliance with the relevant design standards to permit conditional consent. Whilst some objections were lodged about the change in character for this type of use, I again do not consider this reasonable grounds for refusal. 48I am also satisfied that this design is consistent with the character of the area, although it is to be expected that some changes to the elements could occur via different form of development such as boarding houses which are permitted in the area. 49If the local community wishes to restrict or limit this form of development, it should be done through a strategic review of the current controls and such review could consider the relative balance between the different public and private interests for relative to this development. Court orders 50Accordingly the Court orders are: (1)The appeal is upheld. (2)Development consent is granted to LDA 2011/142 for the demolition of existing dwelling at 5 Koorong Street Marsfield and erection of a new two storey boarding house containing twelve single bedrooms subject to the conditions in annexure A. (3)The exhibits may be returned except 1, 5, 6, A, B, C. R Hussey 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. Decision last updated: 01 December 2011