Land and Environment Court New South Wales Medium Neutral Citation: Rosen v City of Sydney Council [2012] NSWLEC 1124 Hearing dates: 11 April 2012 Decision date: 12 April 2012 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The appeal is upheld. (2)Development application (D/2011/166) for a boarding house development at 45 Phelps Street, Surry Hills is approved subject to the conditions in Annexure A. (3)The exhibits, except Exhibit F, may be returned. Catchwords: DEVELOPMENT APPLICATION - Boarding House. New or amended application. Parking, character of local area, privacy and overshadowing Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 South Sydney Local Environmental Plan 1998 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 1 (Development Standards) Sydney Local Environmental Plan 2000 Cases Cited: Australian Enterprise Holdings Pty Limited as AEH Group v Camden Council [2010] NSWLEC 70 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155 Category: Principal judgment Parties: Michael Rosen (Applicant) City of Sydney Council (Respondent) Representation: Counsel Mr G Green (Applicant) Mr A Hawkes (Respondent) Solicitors Pikes Lawyers (Applicant) City of Sydney Council (Respondent) File Number(s): 10930 of 2011 Judgment This determination was given extemporaneously and has been edited prior to publication 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 against the refusal by the City of Sydney Council (council) of a Development Application (D2011/166) for a boarding house development at 45 Phelps Street, Surry Hills (site). 2The contentions raised by council in its Statement of Facts and Contentions filed on 7 November 2011 have been resolved through amended plans that have evolved through a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). The council now agrees to the Court granting development consent, subject to conditions. However, the council did not enter into consent orders or an agreement under s 34 of the Court Act. Rather, the parties agree to my disposing of the proceedings under s 34(4)(b) of the Court Act. 3The description of the site, its locality and the history of the application are in the Statement of Facts and Contentions and council's bundle. Planning framework 4The site is zoned 2(b) Residential (Medium density) under South Sydney Local Environmental Plan 1998. Under draft Sydney Local Environmental Plan 2000 the site is within the R1 General Residential zone. Boarding houses are permissible with consent under both instruments. The parties agree that the proposal is consistent with the objectives of the zone in both instruments. 5The application is made under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP Affordable Rental Housing) in force at the time that the application was lodged. Part 2 of Division 3 applies to boarding houses. Clause 29 provides standards that cannot be used to refuse consent, including floor space ratio (FSR), height, landscaped area, solar access, private open space, parking and accommodation size. Clause 30 provides standards for boarding houses. The parties agree that, other than the standard in relation to motorcycle parking (cl 30(1)(b)), the requirements of cl 29 and 30 of SEPP (Affordable Rental Housing) are met. 6On 20 May 2011, SEPP (Affordable Rental Housing) was amended. Clause 54A of the amending SEPP includes a savings and transitional provision which relevantly provides: 2) If a development application (an "existing application") has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, 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. 7The parties agree that the application should be assessed under the provisions of SEPP (Affordable Rental Housing) in force prior to 20 May 2011 and that the character test in cl 54A(3) must be considered. Mr Hawkes, for the council notes that the only other relevant difference between the amending SEPP and the original SEPP is the amendment to cl 29(2)(e) in relation to the amount of parking that, if provided, cannot be used as a reason to refuse consent. 8Other planning controls of relevance to the application include South Sydney Development Control Plan 1997 - Urban Design (Urban Design DCP), City of Sydney Boarding House DCP 2004 (Boarding House DCP), South Sydney Development Control Plan No 11 - Transport Guidelines for Development (DCP 11) and the City of Sydney Heritage Development Control Plan 2006. The Statement of Facts and Contentions provides a complete list of relevant planning controls. Evidence 9The hearing commenced on site and the Court heard evidence from a number of residents. Their principal concerns can be summarised as: * The proposal is significantly different in description and built form to the original application refused by council. It is therefore a new application and not an amendment; * The proposal is not compatible with the character of the local area; * The height, bulk and scale is inconsistent with the predominant built form in Arthur Street, and the proposed boarding house use is not suited to the quiet residential character of Arthur and Phelps Streets; * The proposal will remove existing parking and therefore exacerbate the demand for parking in the area as well as increase traffic generation; * The number of residents and their communal lifestyle will generate unacceptable amenity impacts, particularly noise. 10The owners of 98 Arthur Street were particularly concerned about the increased overshadowing of their side windows, which are set back about 900 mm from their west boundary. 11The owner of 94 Arthur Street considered the bulk of the development to be unacceptable as it extended further than the built form of the terraces at 8694 Arthur Street. 12The resident concerns are generally those raised by council in its original Contentions, other than the issue of whether the proposal is a new development application rather than an amendment, which I will address first. Is the proposal a new development application? 13In response to the contentions raised by council, the objectors' concerns and the opinions of the experts, the applicant has amended the plans. A summary of the changes is included in the evidence of Mr Boston (Exhibit A). The applicant, with the consent of council, sought leave to amend the application to rely on the amended plans. The objectors considered the extent of changes constitute a new development application rather than an amendment to an existing development application. 14Mr Hawkes and Mr Green, for the applicant, both submit that the changes are amendments and not a new development application. Mr Hawkes submits that the decision of Jagot J in Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155 and Pepper J in Australian Enterprise Holdings Pty Limited as AEH Group v Camden Council [2010] NSWLEC 70 provide the appropriate framework to determine whether the amendments to the development application constitute a new development application or an amended application. 15In considering the facts of this case, within the framework established by Radway and AEH Group, I am satisfied that the proposal is an amendment to the original application and not a new development application. In reaching this decision, I note that the power to amend a development application is contained in cl 55 of the Environmental Planning and Assessment Regulations 2000 (the Regulations)and may be exercised by the Court on appeal under s 39(2) of the Court Act. The Court has no jurisdiction to consider an original application. 16Clause 55 of the Regulations is beneficial and facultative and intended to facilitate the making of amendments. Therefore a broad approach to the scope and application of cl 55 is appropriate. The extent of amendments will depend upon the facts of the particular case. The key consideration is whether the amendments would convert the overall development concept into a new or original development, or whether the essence of the development application lodged and determined by council remains the same. 17The facts of this case are that the development application lodged with council sought approval for: Alterations and additions to an existing fifteen room boarding house, addition of eleven rooms, landscaped common area, one car space and ten bike spaces, and an indoor common room. 18The built form proposed in the original application retained the existing building and added a new building on the area of the site now used for car parking. The two buildings were connected at all levels. The new boarding rooms were self-contained and orientated with open space towards the side boundaries. 19The amended application seeks approval for a "boarding house development". The built form proposed in the amendments includes the retention of the existing building and the construction of a new building with nine self-contained boarding rooms facing Arthur Street and a common room. The buildings are separated by open space. Fifteen bicycle spaces are provided but no car parking or motorcycle parking. 20The original application referred to an "existing boarding house" which the applicant submits is what the existing building is currently used as. However, a search of council records indicates that the building was approved as a residential flat building and that no approval for a boarding house has been granted. The applicant accepts this position. 21Despite this anomaly, the "essence" of the original application and the amended application now before the Court is a boarding house development. Council accepts that the revised plans are "substantially different" to what was originally lodged and refused by council. However, this is not the test. The application remains an application for a boarding house, albeit in a different form. 22The amended built form is responsive to the concerns raised by council, residents and experts, and achieves an outcome, which both parties agree is acceptable. I therefore find that the amendments, although involving significant changes, have not converted the application into an original or new development application. 23Having considered the particular circumstances of this case, the amendments are within the scope of cl 55 of the Regulations and the leave to rely on the amended plans sought by the applicant and agreed to by council, was granted. Expert evidence 24The following expert evidence was tendered to address the other contentions raised by council and to assess the amended plans. For council: Mr H Wang, heritage; Mr N Horiatopoulos, urban design; Ms K Bartlett, planning; Mr A Aspden, traffic and parking. For the applicant: Mr R Staas, heritage; Mr G Boston, planning, Mr J Coady, traffic and parking. 25Other than the planners, the experts were not required to provide oral evidence. 26All the experts agreed that the amended plans, subject to minor design changes sought by conditions, which had been agreed to by the applicant, addressed the Contentions. The reasons for this agreement are outlined below. Parking 27The planners agreed that the proposal meets the requirements for boarding houses in Part 2 Division 3 of SEPP (Affordable Rental Housing) other than cl 30(1)(h), which requires at least one parking space for a bicycle and a motorcycle for every five boarding rooms. The proposal provides bicycle spaces but no motorcycle spaces. 28Mr Boston prepared an objection under State Environmental Planning Policy No 1- Development Standards (SEPP 1). This outlines that the objective of the standard, although not explicitly stated, is "to promote alternative means of transportation through the provision of on-site bicycle and motorcycle parking". 29The SEPP 1 objection states that compliance with the standard is unreasonable and or unnecessary in the circumstances of the case due to the constraints of providing motorcycle access from Phelps Street because of its proximity to a significant tree. The proposal is located near public transport, there is adequate on-street motorcycle parking, and additional bike spaces are to be provided on-site beyond those required by SEPP (Affordable Rental Housing). Ms Bartlett and Mr Aspden accepted that the SEPP 1 objection is well founded. I accept this position. 30Clause 29(2)(a) of SEPP (Affordable Rental Housing) provides that a consent authority must not refuse consent to a development if not more than one parking space is provided for each ten boarding rooms and one space is provided for a resident caretaker. The proposal provides no car parking. However, pursuant to cl 29(4) consent may be granted even if the standard is not met. 31Mr Coady and Mr Aspden agree that, although the proposal removes the existing parking on-site, and does not provide parking, it will not result in unreasonable overflow of parking onto surrounding streets. Mr Aspden notes that the carparking requirement under DCP 11 for five spaces, is a maximum and that in localities in close proximity to public transport or cycling infrastructure, no parking is required. In his opinion, the provision of no parking is acceptable because: * residents of the existing building, as it was approved prior to 1996, would be eligible for twenty-three resident parking permits. Whereas the residents of the proposal would not be eligible to take part in the resident parking permit scheme. * the existing crossover on Arthur Street will be removed, thereby providing an additional kerbside parking space. * the demographics of boarding house occupants have relatively low car ownership and usage. * Visitor parking will be limited by the on-street parking restrictions. 32In the absence of expert evidence to the contrary, I accept the opinion of Mr Aspden and Mr Coady that the proposal will not adversely impact on the onstreet parking and traffic, and that the proposal is acceptable. Character of the local area 33The planning, urban design and heritage experts agree that the design of the development is compatible with the character of the local area, which is a mandatory consideration under cl 54A(3) of the amending SEPP. 34Mr Boston refers to the decision in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where Roseth SC outlines principles for compatibility of a proposal with surrounding development. At [24] the Senior Commissioner states: Where compatibility between a building and its 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. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 35Mr Boston considers that the physical and visual impacts of the proposal are acceptable. He notes that the proposal has responded to the essential elements of the local area by locating the built form on the Arthur Street frontage. It is of a similar height, bulk, scale and character to the surrounding Victorian style housing. The new building generally maintains the setbacks of adjoining buildings to the front and the rear. It is separated from the existing building, thereby providing a landscape open space which corresponds to the open space areas established by adjoining developments. The units are orientated towards the street and towards the open space, thereby minimising opportunities for overlooking. Other physical impacts such as overshadowing are considered acceptable. 36Ms Bartlett, the urban design and heritage experts held similar opinions to Mr Boston and all agreed that the design of the proposal is compatible with the local area. In the absence of expert evidence to the contrary, I accept the opinion of these experts. Privacy 37Ms Bartlett and Mr Boston agreed that the amended plans and conditions have addressed the contentions about visual and acoustic privacy, specifically the windows and balconies/courtyards facing 98 Arthur Street have been deleted. The ground floor courtyards face north and balconies are screened. The windows facing 98 Arthur Street are conditioned to have a sill height of 1.7 m. The communal open space adjoins the communal room and is conditioned that it not be used after 10pm. With these changes, the planners are satisfied that the proposal achieves acceptable visual and acoustic privacy. I accept this position. Overshadowing 38The planners agree that the proposal will result in the loss of some solar access to the adjoining house at 98 Arthur Street. However, they consider the extent of overshadowing to be acceptable as it complies with the requirements of Urban Design DCP and the Boarding House DCP. The windows of 98 Arthur Street are west facing and are located about 900 mm off the side boundary, and are vulnerable to any development on that part of the site which is currently vacant. The windows to the upper level bedroom and the lower level lounge/TV room are secondary windows as both these rooms have another window. The other ground level windows are to a kitchen and lounge area, which will be overshadowed by the development from about 12 pm. 39While I accept this will impact on the amenity of these rooms, I do not accept that it is unreasonable given that the solar access that they currently enjoy results from the Arthur Street part of the site being effectively vacant, and that any development which complies with the planning controls is likely to impact in a similar manner on these windows. It would be unreasonable to require the deletion of the rear first floor unit, as suggested by the owner of 98 Arthur Street, given that it complies with the planning controls. Also, I doubt whether the deletion of this unit would significantly reduce overshadowing to these windows given that the shadow diagrams indicate overshadowing even from the single storey part of the development. 40For these reasons, I accept that the contentions in dispute between the parties have been resolved and that the concerns of the residents have been adequately considered. Orders 41The orders of the Court are therefore: (1)The appeal is upheld. (2)Development application (D/2011/166) for a boarding house development at 45 Phelps Street, Surry Hills is approved subject to the conditions in Annexure A. (3)The exhibits, except Exhibit F, 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. Decision last updated: 21 May 2012