Land and Environment Court New South Wales Medium Neutral Citation: Gow v Warringah Council [2013] NSWLEC 1093 Hearing dates: 14 March 2013 Decision date: 15 March 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1.The applicant is granted leave to rely upon an amended application, being: Architectural plans prepared by Buena Vista Home Design, Drawing No. DA02 (dated 23 November 2012), DA03 (dated 6 February 2013), DA04 (dated 19 December 2012 and DA05 (dated 23 November 2012); Landscape Plan prepared by Ecodesign, Drawing No. L-01, revision G and dated 26 November 2012; Revised Hydraulic Design prepared by Nasseri Associates and dated 31 January 2013; Revised Operational Management Plan prepared by MB Town Planning, Issue B and dated 26 November 2012. 2.The Applicant is to pay the respondent's costs thrown away as a result of the amended application pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 3.The appeal under s97 of the Environmental Planning and Assessment Act 1979 is upheld; 4.Development Application No. 2012/0769 lodged with the respondent on 29 June 2012 to construct a 9 room boarding house at Lot 9 in Deposited Plan 16941, being 116 Queenscliff Road, Queenscliff is approved subject to conditions 1 to 52 in Annexure A. 5. The exhibits are returned with the exception of exhibit 3 Catchwords: CONSENT ORDERS: construction of a boarding house - resident objections relating to unacceptable impact on the character of the area, inadequate parking, unacceptable loss of privacy and overlooking and noise. Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Lynette Pearl Gow (Applicant) Warringah Council (Respondent) Representation: Ms Saw, barrister (Applicant) Mr Gough, solicitor (Respondent) Solicitors Downeys Lawyers Pty Ltd (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 10956 of 2012 Judgment 1COMMISSIONER: This is an appeal against a refusal by Warringah Council of DA 2012/0769 for the construction of a boarding house in accordance with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) at 116 Queenscliff Road, Queenscliff. 2The appeal was the subject of conciliation conferences on 12 November 2012 and 19 February 2013 under s 34 of the Land & Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34(a). The parties consented to me disposing of the proceedings at a latter being 13 March 2013 pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference is pursuant to s 34(4)(b)(ii). 3Following the preparation of amended plans the council sought to have the appeal dealt with as a consent orders hearing as the council's previous contentions had been satisfactorily addressed through the amended plans. The amended plans included: 1. a reduction in the number of boarding rooms from 12 to 9 with an additional room for an on-site manager. 2. inclusion of a single garage for the parking of one vehicle and one car parking space within the front setback. 3. reconfiguration of the front setback area including the provision of a 3 m deep landscaped area at the front of the site. 4. relocated parking for cars, motorbikes and bicycles. 5. Relocated waste storage and defined pedestrian access. 6. reconfiguration of the building so that the common area is located at the front of the building. 7. deletion of all balconies from the rear elevation. 8. removal of pedestrian access along the western side boundary. Consent orders 4In dealing with the matter as consent orders, the Court's Practice Note Class 1 Development Appeals, relevantly provides: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In summary, the Practice Note requires: * evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with; * whether any objection has properly been taken into account; and * whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing. Is approval lawful and appropriate? 6On the first question of whether the approval is lawful and appropriate separate town planning reports were provided by Ms Teresa Gizzi from the council and Mr Matthew Benson for the applicant. Both experts raised no issues that would warrant the refusal of the application. The reports addressed the concerns expressed by the local residents, including a reference to the relevant planning controls. Based on these reports I am satisfied that the approval is lawful and appropriate. Has any objection has been properly taken into account? 7The second question asked whether any objection has been properly taken into account. A number of residents provided evidence at the consent order hearing and their concerns can be summarised as: 1. unacceptable impact on the character of the area by way of bulk and scale of the building, inadequate landscaped area, tree removal and inadequate setbacks. 2. inadequate parking. 3. unacceptable loss of privacy and overlooking. 4. noise; given the noise problems with the previous use of the site. Character 8On the issue of character and with the benefit of an inspection of the site, I agree with the conclusions of Ms Gizzi and Mr Benson who find that the proposed development does not have an unacceptable impact on the character of the area. The test in cl 30A of the SEPP ARH is one of compatibility not sameness. Compatibility is widely accepted to mean "capable of existing together in harmony" (see Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191.) 9I accept that the form of the building, its positioning on the site, the available landscaping and its streetscape presentation is compatible with the local area. Parking 10Parking is addressed in cl 29(2)(e) of SEPP ARH. Standards in cl 29, if satisfied cannot be used to refuse consent. Ms Gizzi and Mr Benson agree that the development standard in cl 29(2)(e) is satisfied, so inadequate parking is not a reason that would warrant the refusal of the application. Loss of privacy 11The issue of loss of privacy and potential overlooking was a matter addressed in the amended plans through the deletion of the balconies from the rear elevation, removal of pedestrian access along the western boundary and the provision of timber privacy screens. I agree with Ms Gizzi and Mr Benson that any loss of privacy or overlooking would not be a reason to refuse the application. Previous use of the site 12The previous use of the site was a common concern of local residents. The evidence highlighted excessive noise and anti-social behaviour associated with what was broadly described as a backpacker hostel or similar. While the applicant did not admit that such behaviour occurred, I am satisfied that the consistent evidence given by the residents should not be dismissed easily. This, however, does not mean that the proposed development will replicate any unacceptable behaviour. In Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Preston CJ at 35 states: Hence in undertaking the merit determination of whether to grant or modify a development consent it is irrelevant to enquire as to who was the current operator/owner or whom might be the future owner/operator or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. 13While Mr Gough for the council sought to distinguish the findings in Jonah by submitting that the following paragraphs allow past activities to be considered, I do not accept this submission. For the submission to be given any weight the proposed use must have: " The same or similar character extent, intensity and other features as to the past use 14I do not accept this to be the case with this application and the previous unregulated use. Importantly, Jonah also states (at 36) that if there are unacceptable impacts, this experience can be used "to mitigate the likely impacts to an acceptable level". In this case, the conditions of consent and the proposed Operational Plan of Management provide sufficient ability to regulate and control the use to the point where any amenity impacts are likely to be acceptable, accepting the residential character of the locality. For example, conditions of consent and the Operational Plan of Management provide for: 1. a restriction on the number of occupants to one manager and 9 residents. 2. a restriction that each boarding room is to be a single occupancy only. 3. direct contact details of the manager are to be publicly displayed on the front exterior of the building. 4. the manager must be contactable 24 hours a day. 5. the development is at all times to operate in accordance with the Operational Plan of Management. 15While the residents were concerned that monitoring and compliance with the conditions of approval were not likely to be carried out, I do not accept that this is a valid reason to refuse the application. I must assume that the council will perform their statutory duty in ensuring that the development will be carried out in accordance with the terms of the approval. 16A resident suggested a number of additional conditions of consent, however, I am not satisfied that these conditions are necessary to overcome any concerns with the character of the local area or redress any potential amenity issues. 17Mr Gough also sought to include a further condition of consent that restricted the management of the boarding house to a "registered housing provider". I am also not satisfied that this is appropriate given the more flexible approach adopted by SEPP ARH. Again, I am satisfied that the conditions of consent and the Operational Plan of Management are appropriate to control the activities on the site. Adequate notice? 18No issue was raised to suggest that adequate notice had not been given to those who objected to the consent orders. 19On this basis, there is no reason why the consent order should not be made with the additional order 5 that states: 5. The exhibits are to be returned with the exception of exhibit 3. Orders 20The orders of the Court are: 1.The applicant is granted leave to rely upon an amended application, being: Architectural plans prepared by Buena Vista Home Design, Drawing No. DA02 (dated 23 November 2012), DA03 (dated 6 February 2013), DA04 (dated 19 December 2012 and DA05 (dated 23 November 2012); Landscape Plan prepared by Ecodesign, Drawing No. L-01, revision G and dated 26 November 2012; Revised Hydraulic Design prepared by Nasseri Associates and dated 31 January 2013; Revised Operational Management Plan prepared by MB Town Planning, Issue B and dated 26 November 2012. 2.The Applicant is to pay the respondent's costs thrown away as a result of the amended application pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 3.The appeal under s97 of the Environmental Planning and Assessment Act 1979 is upheld; 4.Development Application No. 2012/0769 lodged with the respondent on 29 June 2012 to construct a 9 room boarding house at Lot 9 in Deposited Plan 16941, being 116 Queenscliff Road, Queenscliff is approved subject to conditions 1 to 52 in Annexure A. 5. The exhibits are returned with the exception of exhibit 3. ___________ G T Brown 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: 31 May 2013