Ong v Canterbury City Council [2015] NSWLEC 1197

Land and Environment Court New South Wales

Medium Neutral Citation: Ong v Canterbury City Council [2015] NSWLEC 1197 Hearing dates: 18-19 February 2015; 22 May 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Class 1 Before: Fakes C Decision: By consent, appeal upheld – see [44] Catchwords: DEVELOPMENT APPLICATION: Consent orders; Boarding house; parking, landscaping, access, adequacy of plans Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Canterbury Local Environmental Plan 2012 Cases Cited: Newbury District Council v Secretary of State for the Environment [1981] AC578 Category: Principal judgment Parties: Khahn Son Ong (Applicant) Canterbury City Council (Respondent) Representation: Counsel: Applicant: Ms Saw (Barrister) Respondent: Mr P Jackson (Solicitor)

Solicitors: Respondent: Pikes & Verekers Lawyers File Number(s): 10716 of 2014

Judgment 1. COMMISSIONER: The applicant appeals Canterbury Council's refusal of Development Application No. 213/2014 for alterations and additions to premises at 62 Clissold Parade, Campsie and for use of those premises as a 15 room boarding house. 2. The appeal is made under s 97 of the Environmental Planning and Assessment Act 1979 (the Act).

Relevant background to the appeal and the hearing 1. Council's Statement of Facts and Contentions (Exhibit 1) outlines the history of development applications and actions of the parties since 2004. 2. In May 2014, DA No. 213/2014 was lodged with the council seeking to regularise the unauthorised use of the premises as a 19 room boarding house. The plans were notified to adjoining and nearby properties and many submissions received. 3. In October 2014 the council determined to refuse this application on a number of grounds including: undersized rooms; inadequate parking for cars, motorbikes and bicycles; non-compliance with various aspects of Canterbury Development Control Plan 2012 including access and mobility, landscaping and waste management; not in the public interest. 4. Prior to this determination, the applicant filed the Class 1 application with the Court on the basis of a deemed refusal. 5. In accordance with the Court's usual directions, the matter was listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). This commenced on site and I was the Commissioner appointed to the matter. During that process the applicant conceded that the plans and proposal required significant amendments. Leave was sought to prepare amended plans however this was opposed by the council and the s34 conciliation was terminated in accordance with s 34(4) of the Court Act. 6. In November 2014, after the conciliation conference, the applicant filed a Notice of Motion seeking to rely on amended plans. Leave was granted and the amended plans and accompanying documents were filed and served in December 2015. Amongst other things, the amendments reduced the number of rooms to achieve compliant room size, sought to address the parking, waste management and landscaping issues raised by council, and provided other internal changes to improve disabled access. 7. The amended plans were notified to those who had made previous submissions – the issues raised are discussed elsewhere in this judgment. 8. On the basis of the amended plans, the applicant prepared another Statement of Facts and Contentions (exhibit 1) listing the contentions that remained in dispute. These are: failure to provide a new BASIX certificate; inadequate parking for people with disabilities; incompatibility with the character of the area; insufficient information on access and mobility, and landscaping; unacceptable impacts of the development/ suitability – in particular parking and unsatisfactory arrangements for people with disabilities; and not in the public interest – particularly in regards to parking. 9. On 13 February 2015, the parties' planners Mr Andrew Ison (Senior Planner for council) and Ms Katalin Erdelyi (the applicant's planner) participated in a joint conference and prepared a joint expert report. The planning evidence is provided in paragraphs [26] – [30] of this judgement. 10. The matter proceeded to a hearing on 18 March 2015. The hearing commenced on site with another inspection of the site. The Court and the parties had the opportunity of hearing from a number of local residents who had made written submissions opposing the approval of the proposed boarding house. The objectors' submissions are considered elsewhere in this judgment. 11. While the council had initially considered that Consent Orders may have been appropriate, notwithstanding the agreement of the planners in their joint report, it became clear during the proceedings that the amended plans provided by the applicant did not constitute the quality or the quantity of the suite of plans specified in Schedule A of the Land and Environment Court's (LEC) Practice Note – Class 1 Development Appeals. It also became apparent during the site inspection that, amongst other things, the planners had not taken note of the consequences of providing the on-site parking in regards to stormwater and the extension of the layback from the street to the site. 12. The applicant conceded that while some work was still required, the majority of the contentions had been successfully resolved and the remainder of the issues could be finalised if the matter were adjourned. The council initially opposed an adjournment on the basis that the applicant had been provided with sufficient time and notice to enable the preparation of the information on which the applicant wished to rely. 13. I determined that adjourning the matter to enable the applicant to prepare the suite of plans required for the Court to properly consider the proposal was preferable to dismissing the appeal. Directions were made on 19 March 2015 requiring the parties to agree on conditions of consent arising from the matters discovered on site, and for the applicant to prepare and provide additional documentation and consistent plans. 14. On 17 April 2015, the applicant was granted leave to rely on the suite of amended plans and documents prepared in accordance with the Court's directions on 19 March 2015. 15. Council was sufficiently satisfied with the amended plans and documentation to proceed with Consent Orders. In accordance with clause 36 of the LEC Class 1 Practice Note, the council wrote to those objectors who had made submissions advising them of the date of the hearing and providing them with a reduced set of the amended architectural drawings and well as the draft without prejudice conditions of development consent prepared by council. Copies of the letters sent to residents on 1 May are included in Exhibit 8. Electronic copies of the Operational Plan of Management were forwarded to some residents who had provided email addresses on or about 20 May 2015. 16. The hearing resumed on 22 May 2015. A number of residents who had made oral submissions on site were invited to give further evidence in Court.