Land and Environment Court New South Wales Medium Neutral Citation: Vasiliou v Leichhardt Council [2012] NSWLEC 1127 Hearing dates: 14 May 2012 Decision date: 22 May 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeals upheld Catchwords: Development Application, Boarding houses Legislation Cited: Land and Environment Court Act 1979; Leichhardt Local Environmental Plan 2000; Standard Instrument - Principal Local Environmental Plan State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH); State Environmental Planning Policy (Affordable Rental Housing) 2011; Category: Principal judgment Parties: Anastasia Vasiliou (Applicant) Leichhardt Council (Respondent) Representation: Counsel Mr M Staunton (Applicant) Solicitors Mr T Sattler Sattler & Associates Pty Limited (Applicant) Ms J Walsh Pikes Lawyers (Respondent) File Number(s): 10818 of 2011 10819 of 2011 Judgment 1These are two appeals against the refusal by Leichhardt Council of two development applications, firstly D/2010/553 for 8 Campbell Avenue, Lilyfield (Matter No 10818 of 2011) and secondly, D/2010/554 for 10 Campbell Avenue (Matter No 10819 of 2011). Both applications now propose alterations and additions to existing dwelling houses for use as an 8-room boarding house with a maximum of 12 lodgers. 2The issues between the parties have been resolved and they are seeking consent orders from the Court. Background and the proposal 3The matters commenced as a conciliation conference under the provisions of Section 34 of the Land and Environment Court Act 1979 (the LECAct). As a result of that process, the applicant developed amended plans in an attempt to address the contentions in the cases. Leave has been granted to rely on those amended plans. The council had notified the plans and received a large number of submissions, many of which were form letters. Individual objections included photomontages and detailed comments in relation to a range of issues. A summary of the issues includes heritage, parking, traffic, stormwater, amenity, privacy and overshadowing issues and a view that the site is not suited for use as a boarding house, the development is too large and not in keeping with the character of the area. In addition, concerns were expressed in relation to the lack of a boarding house manager and the appropriateness of the proposed Plan of Management (POM). 4Despite the changes made to the plans, the council would not enter into an agreement under s 34(3) of the LEC Act and the conference was terminated. The matter is now being heard under s 34(4)(b)(i) and the parties are seeking consent orders. The council has notified all objectors in relation to the orders sought. 5The plans before the Court are similar for each application/site and involve the retention and alteration of the main dwelling structure, the demolition of the rear single storey additions and construction of new, two storey, rear additions. The resultant buildings would each contain five boarding rooms and a common lounge area on the lower floor level, a split level arrangement following the slope of the land and three boarding rooms on the upper, rear level. Each room incorporates a bedroom, living space, kitchenette and bathroom. Laundry facilities would be shared and the common room would open to the rear, private open space. Small private courtyards are proposed adjacent to the two, rear, ground-level rooms in each building. 6The proposed new works adjoin the common boundary between the two lots in the form of a party wall. Setbacks of the new additions from the southern side boundary vary from 1.5-1.8 m at ground level with a consistent 3.2 m from the upper wall. An accessible ramp is provided to the south of the existing building in the location of the existing driveway and provides access to the main building entry with an area for landscaping. A 1.8 m high fence is proposed along that side boundary. Similar setbacks and treatment are proposed to the northern boundary with the exception of the setback to the upper floor addition that is shown as being 3.0 m from the boundary. Provision of bike parking and bin storage is made adjacent to the common boundary between the two sites. 7Whilst the applicant is the owner of both sites, the two boarding houses would operate independently. The site and its context 8The sites, 8 and 10 Campbell Street Lilyfield are two adjoining allotments on the eastern side of the roadway located approximately mid-block between Church and Perry Streets. The land falls from front to rear. 9Each site currently contains a single-storey Californian bungalow with skillion additions to the rear. Those additions and a garage at No. 10 are proposed to be demolished. 10The immediate locality predominately contains residential dwellings. Buildings in the area range in style but are generally single storey brick and tile dwellings, many of which contain rear additions, both single and double storey. There is a two storey residential flat building and two storey multi-unit development opposite the site and a small number of two storey dwellings in the street. 11The eastern side of Campbell Avenue contains similar single storey detached dwellings in Californian Bungalow style. These form part of a heritage conservation area that includes all dwellings fronting Campbell Street and a heritage item on the north-eastern corner of Campbell and Perry Street. The conservation area does not include those lots to the rear of the site fronting Glover Street. The planning controls 12The relevant statutory controls are described in the council's Statement of Facts, which I adopt. Boarding houses are permissible with consent under the council's planning instrument, Leichhardt Local Environmental Plan 2000 (the LEP). 13The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). That policy was amended by State Environmental Planning Policy (Affordable Rental Housing) 2011 (the amending SEPP) on 20 May 2011 and introduced additional matters for consideration, in particular clause 54A which states: 54A Savings and transitional provisions-2011 amendment (1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if: (a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and (b) the development is commenced not later than 2 years after the amendment. (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. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. 14It is common ground that the applications are existing applications for the purpose of this clause, the site is in a land use zone equivalent to the R1 General Residential Zone under the Standard Instrument - Principal Local Environmental Plan (the Standard Instrument) and that the application meets all of the relevant controls contained in SEPPARH. The evidence 15The appeals commenced on site where evidence was heard from a number of objectors to the proposal. The site view included observation of the extent of the proposed development from a number of sites in Campbell Avenue and also properties in Glover Street that adjoin the rear boundaries. The issues raised reiterated those concerns detailed at [3] above. 16Expert evidence was heard from Mr Boston (planning) and Mr Staas (heritage) for the applicant, both of whom prepared a position paper which are Exhibits H and J in these proceedings. That evidence is uncontested. The council did not proffer any expert evidence in the proceedings. 17Mr Boston's position paper included a table that details the planning controls contained in sections 29 and 30 of SEPPARH. That table indicates the development is fully compliant with those controls with the floor space ratio (FSR) of 0.58:1 (No. 8) and 0.56:1, being less that the 1:1 allowed. As the area is located within an area where residential flat buildings are permitted with consent, SEPPARH provides that no parking new parking is to be provided for a boarding house and no provision for parking has been made. The removal of two existing driveway crossing from the sites will have the effect of providing two additional on-street parking spaces that would be available for general use. Conclusion and findings 18From the evidence provided to the Court, the development of the land for the purposes of a boarding house is permitted by both the LEP and SEPPARH. The development is fully compliant with the planning controls contained within the latter policy. 19There are no aspects of the policy that restrict its application to heritage conservation areas and accordingly, the usual assessment of the application under section 79 C of the Environmental Planning and Assessment Act 1979, having particular regard to those reasons contained within SEPPARH that cannot be used to refuse an application and the "character test" under s 54A of the policy, is required. 20In accordance with clause 54A, it is necessary for the Court to determine whether the design of the development is compatible with the character of the local area. That local area is as described in [10-11] and, having viewed the area and considered the evidence provided, I am satisfied that the design of the development is compatible with that character. The development provides for the retention of the main dwelling and the sympathetic addition of additional floor space to the rear with a FSR far below that permitted under SEPPARH. The area remaining within the rear yard provides for the continuity of the green space between blocks and the setbacks provided, whilst less than in some cases, are consistent with other sites in the local area. The setbacks to the upper floors are considerably greater than those evident in the area, a positive aspect of the application. 21With regard to the issues raised by the objectors, I note that building height, landscaped area, solar access, private open space, parking and accommodation size are matters which cannot be used to refuse consent where those controls contained in clause 29(2) of SEPPARH are met. I am also satisfied that the standards in clause 30(1) are met and that the draft conditions of consent, as amended during the hearing in response to neighbour concerns, address the concerns regarding visual privacy. Further conditions requested by a resident have been considered however, I do not consider it is necessary to increase the height of the courtyard walls to 1.8 m and that the 1.5 m wall height above finished ground level of those yards will be sufficient to address visual privacy and not result in additional building bulk. The council has made amendments to the proposed POM and is now satisfied with that document and has drafted conditions that reflect the need for its implementation. 22The contention of residents that the boarding houses are inappropriately located has been considered however, I have regard to the provisions of SEPPARH and, in particular, the aims of the policy which seek to provide a consistent planning regime for the provision of affordable rental housing, to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards and to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing. There is no evidence that the site is not suited to use as a boarding house. 23The provisions of the policy are fully met and approval of the application would achieve its aims of providing affordable rental housing. 24On the basis of the evidence provided, I am satisfied the proposal is lawful and complies with all of the relevant statutory controls and that there are no reasons that the Consent Orders should not be made. The parties are to finalise agreed conditions in accordance with those agreed during the hearing. 25By consent, the Orders of the Court are: In proceedings 10818 of 2011 (1)The appeal is upheld. (2)Development application No. D/2010/553 for alterations and additions to an existing dwelling house at 8 Campbell Avenue, Lilyfield for use as an 8 room boarding house is approved subject to the conditions contained in Annexure 'A' (3)The exhibits, other than exhibits B and F are returned. In proceedings 10819 of 2011 (1)The appeal is upheld (2)Development application No. D/2010/554 for alterations and additions to an existing dwelling house at 10 Campbell Avenue, Lilyfield for use as an 8 room boarding house is approved subject to the conditions contained in Annexure 'A' (3)The exhibits, other than exhibit D, are returned. Sue Morris 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: 22 May 2012