Land and Environment Court New South Wales Medium Neutral Citation: ARTZ 2 Design Pty Ltd trading as Gelder v Randwick City Council [2015] NSWLEC 1070 Hearing dates: 24 March 2015 Date of orders: 26 March 2015 Decision date: 26 March 2015 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld – see [61] Catchwords: DEVELOPMENT APPLICATION: Boarding house Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development State Environmental Planning Policy (Affordable Rental Housing) 2009 Randwick Local Environmental Plan 2012 Category: Principal judgment Parties: Artz 2 Design Pty Limited trading as GELDER (Applicant) Randwick City Council (Respondent) Representation: Counsel: Applicant: Mr M Staunton (Barrister) Respondent: Ms P Hudson (Solicitor) Solicitors: Applicant: Schmidt-Liermann Pty Ltd Respondent: Marsdens Law Group File Number(s): 10790 of 2014 Judgment 1. COMMISSIONER: The applicant appeals Randwick City Council's deemed refusal of a development application for the demolition of a residential flat building and all ancillary structures and the construction of a boarding house at 72-74 Mount Street, Coogee (the site). 2. The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act). The site and its locality 1. The site is on the western side of Mount Street and backs onto Mount Lane. Nearby development in Mount Street comprises predominantly two to three storey apartments over ground level parking. Other development is a mixture of one and two storey dwellings. 2. The site is rectangular in shape; approximately 13.4m wide and 42m long with an area of 562.8m2. There is a two storey residential building on the site with a four space detached garage on the rear boundary. Vehicular access is directly off Mount Lane. The building occupies most of the site with landscaping limited to the front setback and the area between the rear of the building and the garages. 3. Properties on the eastern side of Powell Street back onto Mount Lane. Properties in Powell Street close to the site are principally one to two storey residential dwellings with rear lane vehicular access. The proposal 1. After further consultation with the council, and following a conciliation conference held under s 34 of the Land and Environment Court Act 1979, the applicant prepared amended plans. The proposal before the Court consists of: * Demolition of all structures on the site and removal of all vegetation; * Excavation to accommodate a basement level comprising 6 spaces, 4 motorcycle spaces, 6 bicycle spaces, a plant room, garbage room and a lift for pedestrian access to the residential floors above. Vehicular access is via Mount Lane; * Three levels of residential accommodation providing a total of 22 self-contained boarding rooms, one of which is to be a manager's residence, and a common lounge area; and * Associated works including landscaping and stormwater drainage. 1. The amendments to the original proposal also include: a reduction in the number of boarding rooms from 26 to 22; relocation of the driveway to the south of the site; deletion of a 4th storey and provision of 2.7m ceiling heights to enhance amenity; reconfiguration of the floor layouts to maximise solar access and cross ventilation; a change in the roof form from curved metal to a metal deck roof with clerestorey windows; and louvres and screens to enhance privacy between adjoining development. 2. The amended plans were re-notified. Assessment framework 1. The site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP). Boarding houses are permitted with consent. The relevant objectives of the zone are: * To provide for the housing needs of the community within a medium density residential environment. * To provide a variety of housing types within a medium density residential environment. * To protect the amenity of residents. * To encourage housing affordability. 1. Clause 4.3(2) RLEP provides a maximum building height of 9.5m. The Floor Space Ratio (FSR) for the site is ordinarily 0.75:1 (cl. 4.4(2)). 2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP-ARH) applies. Relevant aims of the Policy in cl. 3 are: (b) 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, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of affordable rental housing and incentives for the development of new affordable rental housing, and (f) to support local business centres by providing affordable rental housing for workers close to places of work. 1. Clause 8 SEPP-ARH states that if there is any inconsistency between this Policy and any other environmental planning instrument, this policy prevails. 2. Division 3 – SEPP-ARH applies to boarding houses. This Division applies to land in specified zones and includes R3 Medium Density Residential. 3. The proposal attracts a bonus FSR of 0.5:1 (cl.29(1)(c)(i)). 4. Clause 29 considers standards that cannot be used to refuse consent. Clause 30 specifies the standards for boarding houses. Clause 30(1) states that a consent authority must not consent to development to which this Division applies unless it is satisfied that each of the specified standards has been achieved. 5. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) also applies. Part 2 describes the design quality principles for residential flat development. SEPP 65 refers to the Residential Flat Design Code (RFDC). 6. Parts of Randwick City Council Development Control Plan 2013 (RDCP) are relevant. Part C2 applies to Medium Density Residential development. Part C4 applies specifically to Boarding Houses. The issues 1. Council's Statement of Facts and Contentions filed in October 2014, before the submission of amended plans, list the following contentions. 1. No BASIX Certificate has been submitted. 2. Building Height – the proposal exceeds the development standard for building height in RLEP. 3. Solar access – adverse impact on adjoining properties. 4. SEPP 65 – no accompanying documentation. 5. Inconsistent with the requirements of the Residential Flat Design Code – in particular solar access, cross-ventilation, and storage. 6. SEPP – ARH – proposal is incompatible with the character of the local area; non-compliance with roof form, landscaping and deep soil zones, balconies, solar access and cross ventilation. 7. Insufficient information in regards to Part 3 SEPP – ARH; satisfaction of cl. 50(2)(d) and arrangement for any displaced residents. 8. Reflectivity of the proposed roof. 9. Non-compliance - width of the private open space for the manager's residence. 10. Insufficient deep soil planting. 11. Privacy for the site and nearby residents. 12. Boundary fences. 13. Balcony sizes 14. Adaptable housing. 15. Operational Management Plan 16. Construction Management Plan. The hearing 1. The hearing commenced on site. The Court had the benefit of hearing from a number of local residents who had made written submissions. In addition, several other residents who had not made written submissions were given the opportunity to voice their concerns. The issues raised include: * Extra demand for limited on-street parking spaces; * Increase in traffic volume and associated safety concerns; * Access to other garages in Mount Lane; * Possible anti-social behaviour of future residents and the need for a detailed Plan of Management; * Non-compliance with the height control and other development controls – no demonstration that the proposal results in a better planning outcome; and * Overlooking from west-facing balconies onto the rear living areas and backyards of dwellings on the eastern side of Powell Street and associated privacy concerns. 1. A joint report, based on the amended plans, was prepared by the parties' planners – Mr Greg Boston for the applicant and Mr Kerry Kyriacou for the council. In essence the planners agree that the amended plans resolve the majority of contentions and any remaining contentions can be dealt with by the imposition of conditions of consent. In their report the planners note that the council's Statement of Facts and Contentions filed in October 2014 relates to the original development and has not been amended to reflect the amended plans. The planners were not required to provide oral evidence. 2. Council prepared without prejudice draft conditions of consent. The applicant accepts those conditions. 3. Given the amended plans and the agreement of the planners, and general agreement about the draft conditions of consent, the parties agree that there are no longer any contentions that would warrant refusal of the proposed development. 4. However, in exercising the function of the Court, I must consider the relevant matters in s 79C of the Act. To this end I was taken through the contentions and the relevant planning controls. I have also considered the issues raised by the objectors and the evidence in the joint planning report. BASIX Certificate 1. In accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (the Regulations) a BASIX certificate – No 619126M (exhibit B) has been prepared on the basis of the amended plans. Compliance has not resulted in any changes to the dimensions of windows or any other elements likely to adversely impact on adjoining properties. This contention has been resolved. Building height 1. The original proposal exceeded the Height of Buildings development standard of 9.5m specified in cl. 4.3 RLEP by between 0.94-1.24m. The amended proposal providing for the removal of the upper storey, change in roof form as well as agreed conditions 2(a) and 2(b) result in compliance with the development standard. 2. Council contended that the non-compliance with the height control created an unsatisfactory level of solar access for the adjoining property at 76 Mount Street and therefore did not meet objective (c) in cl. 4.3(1) RLEP – that is: 'to ensure that development does not adversely affect the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views'. 3. The planners agree that, subject to compliance with conditions 2(a) and 2(b), the shadowing impact on 76 Mount Street has been minimised and that reasonable solar access is maintained. This is in the context that the site has an east-west orientation within a medium density zone where it is typically more difficult to protect solar access. The planners also note that the proposal is also well below the maximum permissible FSR for the site and provides setbacks that meet or exceed the minimum standards in RDCP. 4. This contention has been resolved. Solar access 1. This contention related specifically to loss of solar access to living room windows of the residential flat building at 76 Mount Street. This matter has been resolved by way of the reasoning given for the previous contention. SEPP 65 documentation and RFDC compliance 1. In accordance with s 50(1A) of the Regulations, a SEPP 65 Design Verification has been provided by the applicant's project architect. 2. The planners agree that the amended plans significantly improve natural cross ventilation, solar access, natural light, floor to ceiling heights and landscaped area and meet the relevant provisions of the RFDC. They also agree that the removal of the curved roof form, reduction in building height and additional articulation of the building provide a complimentary and compatible building form consistent with the Design Quality Principles in SEPP 65. SEPP-ARH character 1. Clause 30A of SEPP-ARH states that a consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 2. The council was initially concerned that the roof design and materials, landscaping and deep soil zones, and extent of paving created a development that was not in character with the local area nor was it consistent with the controls and desired future character of the area. 3. With the benefit of the site view I concur with the planners that the amended proposal is consistent with the existing and desired future character of the area. In particular, the proposal is consistent with the height, form, massing, density and envelope controls in RLEP, RDCP and SEPP-ARH. 4. In addition, council contended that the balconies of four units were less than the minimum 4m2 required by Part C4 – cl. 2.1 in RDCP. The amended plans indicate that the majority of balconies meet or exceed the control and only two are 0.7m2 short of the minimum area. The planners agree and I concur, that this shortfall does not warrant refusal of the proposal and the balconies in question provide an adequate and acceptable level of amenity to those units. Arrangements for displaced residents 1. Council contends that the existing building on the site is, and has been since 28 January 2000, used as a boarding house and to that extent would meet the definition of "low-rental residential building" in cl 47 SEPP-ARH. Clause 50 SEPP-ARH considers the reduction of availability of affordable housing as a consequence of development of such premises. 2. Specifically, cl. 50(2)(d) requires the consent authority to take into account whether arrangements have been made to assist the residents (if any) of the building likely to be displaced to find alternative comparable accommodation. 3. The applicant disputes whether there is sufficient evidence to prove the council's contention, and indeed maintains that any displacement in the first instance arises from council's action in issuing an order to convert the current (unlawful) nine rooms back to four. Notwithstanding this difference in opinion, the applicant is prepared to accept an appropriate condition to meet the intent of cl. 50(2)(d). 4. While the planners also agree that there is insufficient information to establish whether the building is appropriately defined as a "low-rental residential building", they note that the proposed development will increase the supply of affordable housing in the Randwick local government area. They also consider it appropriate to impose a suitable condition of consent. 5. I was advised during the hearing that the residents have been given a reasonable period of notice as well as financial assistance. Therefore I am satisfied that appropriate arrangements have been put in place to assist any remaining residents to find other accommodation and a condition of consent imposing this is unnecessary in the circumstances. Reflectivity of roof materials 1. The change in roof form and the imposition of Condition 4 (relating to a schedule of materials) address this contention. Width of manager's private open space 1. Clause 29(2)(d)(ii) of SEPP-ARH requires the width of the private open space of the boarding house manager's residence to be a minimum of 2.5m wide. 2. The planners agree that the amended plans achieve compliance with this control and the contention is no longer pressed. Deep soil planting 1. Part C2 – cl. 2.2.1 in RDCP requires 25% of the site to be deep soil. The contention also dealt with the unacceptable extent of hardstand paving in the front setback for the purpose of garbage storage rather than landscaping. 2. The planners agree that the contention is resolved through the relocation of the garbage storage to the basement and the provision of an amended landscape plan showing additional deep soil soft landscaping. Contentions that may be resolved by conditions of consent 1. This applies to original contentions 11-16. 2. The planners agree that the privacy of adjoining residential properties has been addressed by the amended plans. I am satisfied that the provision of screens on the balconies on the western façade as well as the compliant setbacks from boundaries achieve an appropriate level of privacy for both the future residents of the boarding rooms and the neighbours. 3. It is agreed that a condition of consent be imposed to require new boundary fencing to a height of 1.8m along the northern and western boundaries. Condition 16 considers fencing on the site. 4. Concerns about balcony dimensions have been addressed and the proposed condition is no longer required. 5. In regards to adaptable housing, condition 13 requires that access and facilities for people with disabilities must be provided in accordance with the relevant provisions of the Building Code of Australia (BCA) and any other relevant Australian Standards. 6. Contention 15 considers the need for an amended Operational Management Plan. Part B9 of RDCP advises that a Management Plan may be required as a condition of development consent for a range of activities or uses including boarding houses. The controls in Part B9 detail the information to be included in a management plan. Further, clause 3 in Part C4 RDCP specifies the additional information required for management plans for new and existing boarding houses. 7. An Operational Management Plan was included as part of the applicant's Statement of Environmental Effects (SEE). The planners agree that Condition 84 provides detailed guidance for any necessary amendments to the management plan. 8. I am satisfied that the conditional requirement to provide the council with an amended Operational Management Plan prior to the issuing of an occupation certificate is appropriate and that a fully detailed plan is not required at this stage. I also note that the plan in the SEE is generally consistent with council's requirements but needs to be amended to address specific elements of the proposal arising from the amended plans including the number of residents per room. 9. The issues raised in regards to a Construction Management Plan are addressed in conditions 31-37. Matters raised by objectors 1. According to the council's Statement of Facts and Contentions, the original development application was exhibited in August 2104 and 62 individual submissions, all objecting to the proposal, were received. The issues raised were essentially those voiced during the hearing but also included concerns about noise from plant, construction activities and residents. 2. The amended plans were notified and eleven submissions were received which raised similar issues. 3. The key concerns essentially go to parking and traffic. In this regard I note that council did not raise these issues in its contentions. Relevantly, cl. 29(2)(e) SEPP –ARH states that: (2) A consent authority must not refuse consent to which this Division applies on any of the following grounds: (e) parking If: (i) in the case of development in an accessible area – at least 0.2 parking spaces are provide for each boarding room, and (iii) in the case of any development – not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site. 1. The site is in an 'accessible area' as defined in cl. 4(1)(c) of SEPP-ARH as it is within 400m walking distance of a bus stop used by a regular bus service. The provision of 6 car parking spaces is compliant with the controls and therefore the proposal cannot be refused on this basis. The proposal also complies with SEPP- ARH requirements for motorcycle and bicycle parking. Traffic generated by 6 on-site vehicles is unlikely to have any significant impact on local traffic. 2. With respect to the other issues raised by the objectors, the proposal is permissible within the zone, the zone is for medium density residential development and therefore anticipates higher density living. In regards to privacy, some overlooking is inevitable but in this case is minimised through the provision of screens and compliant setbacks. I am satisfied on the basis of the amended plans and the joint report of the planning experts that the proposal generally complies with all relevant planning controls and to the extent of any minor non-compliance – such as balcony dimensions, no unreasonable impacts on adjoining properties arise from them. I am also satisfied that the proposal meets the relevant objectives of the zone and SEPP-ARH. The comprehensive conditions of consent address many of the matters raised by objectors. Conclusions and orders 1. On the evidence before me and after consideration of the relevant matters under s 79C of the Act, I am satisfied that there are no grounds for refusal of the proposed development. 2. Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 511/2014 for the demolition of all existing structures and the construction of a 22 room boarding house with basement car parking and associated works on Lot 6 DP 977268 known as 72-74 Mount Street, Coogee is approved subject to the conditions of consent in Annexure A. 3. Exhibits D, 1, 2, 4 and 5 are returned. ___________________________ Judy Fakes Commissioner of the Court 10790 of 2014 Fakes (C) (325 KB, pdf) ********** 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: 27 March 2015