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. The site and its locality 1. The site is on the southern side of Clissold Parade, Campsie. It is currently occupied by a two-storey dwelling with vehicular access to a double garage in the front façade. The unauthorised use of the property as a boarding house is currently the subject of Class 4 proceedings in the Land and Environment Court. 2. Residential flat buildings adjoin the site to the east and west. The broader vicinity of the site is characterised by a mix of residential development including single dwellings, dual occupancies and residential flat buildings. Planning controls 1. The site is zoned Zone R4 High Density Residential in Canterbury Local Environmental Plan 2012 (CLEP). Boarding houses are permitted with consent. 2. Relevant parts of Canterbury Development Control Plan 2012 (CDCP) apply. 3. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies. The evidence Resident objectors 1. As stated above, a number of residents gave oral evidence, both on site and in court, opposing the development. The council's bundle of evidence (Exhibit 4) and supplementary bundle of documents (Exhibit 8) contain the many, and generally very detailed, written submissions. In summary, the issues raised by the objectors include: * The long term unauthorised use of the premises and the matters they contend have arisen from this including: antisocial behaviour, disposal of rubbish including potentially hazardous items onto adjoining properties, noise at unreasonable levels and times, parking problems, regular setting off of the fire alarm and the inadequacy of the management of the property. * Adequacy of the Operational Plan of Management to ensure the amenity of neighbouring properties; * Sufficiency and location of parking for cars and motor cycles, in particular the proximity of the hardstand parking spot close to the common boundary with 64 Clissold Street, and the parking of motorcycles at the rear of the site which could have detrimental impacts on the acoustic amenity of the residents of 64 as well as potential damage that may occur to the dividing fence; * The visual impact of the location of the garbage storage area in the front setback and the lack of landscaping resulting in a development out of character with the streetscape; * Potential traffic safety issues arising from the extension of the driveway layback so that it will be contiguous with the driveway to 64; * The existing building is unsuitable for retro-fitting as a boarding house; the building should be demolished and a new building constructed; * Extra demand for limited on-street parking; * Approval will set an undesirable precedent. 1. Two objectors, Mr Park, a resident of 64 Clissold Street and Mr Aggarwal a resident of 60 Clissold Street, proposed additional conditions of consent. In addition, Mr Park engaged Conomos Legal to make written submissions on his behalf; these are included in Exhibit 8. The objectors' proposed conditions include: immediate replacement of any damaged flyscreens on windows to prevent littering; increasing and or extending the height of the fence between 62 and 60 and 62 and 64 Clissold Street; a security deposit to compensate for any property damage to 60 Clissold Street during and after construction; fire inspections at three-monthly intervals, any on-street parking to be in front of the site only; installation of security cameras inside and outside the premises; deletion of room 5 as a bedroom and its replacement with a parking area for motorcycles accessed through the garage in order to move the proposed motorcycle parking from the rear of the site; motorcycles to be switched off when they enter the site; deletion of the car parking space in the front setback and its replacement with landscaping; amendments to the Operational Plan of Management only after the lodging of an application under s 96 of the Act; changes to the standard hours of construction to preserve the amenity of neighbouring properties; and deletion of a bedroom into order to incorporate a bin storage area/ bulky waste storage room. The objectors made many recommendations for changes to the Operational Plan of Management, particularly in respect of governance and complaints handling. The objectors' original submissions and those arising from the hearing are included in the evidence before the Court. Planning and access 1. As a result of the joint conference in February 2015, the planners agreed that: * A new BASIX report had been provided for the amended proposal. * The parking issue was capable of resolution but would require amendments to layout of the front setback and the landscaping plans, relocation of the bin storage area, and the imposition of a number of conditions relating to parking arrangements. Mr Ison noted that council's development engineer had assessed the plans and had made recommendations for a number of amendments. The experts agreed that the parking arrangements achieved the number of spaces required by SEPP ARH. * Based on the amendments to the design and layout of the front setbacks outlined above, the proposal would not be inconsistent with the character of the area. * The proposed landscaping at the front and rear of the site is satisfactory subject to preparation of amended plans and the imposition of conditions of consent to improve some elements of it. * The proposal is consistent with the relevant provisions of s 79C(1)(b) of the Act in regards to impacts on the natural and built environment. The Operational Plan of Management is to be updated to provide nearby residents with detailed information as to how the premises will be operated. * The site is suitable for the proposed development and the proposal complies with the relevant objectives of the R4 High Density Residential Zone in CLEP. * Amongst other reasons, the proposal is in the public interest as it provides accommodation for persons of low income, the disabled and the elderly. 1. Since that time the plans have been amended to reflect issues raised during the joint conferencing and subsequently during the hearing in March 2015. The planners have agreed on the conditions of consent. 2. During the March hearing, Mr Ison advised that extending the driveway layback to provide access to a car-parking space in the front setback was acceptable to council. 3. In oral evidence during the resumed hearing, Mr Ison advised the Court that: the amended landscaping plan had been forwarded to council's landscape consultant and subject to some additional conditions concerning the rear garden, was deemed acceptable; the layback and front driveway has been found acceptable by council's development engineer; the workability of the parking spaces has resulted in minor but acceptable changes to the landscaping in the front setback; the space in the front setback is sufficiently wide for a driver to exit the vehicle safely; there is no requirement in CDCP for a separate bin storage room; retrofitting the existing building complies with CLEP, CDCP and SEPP ARH; the parking and motor cycle parking is suitably located as well as compliant with the SEPP; there is sufficient room to enable the safe manoeuvring of motorcycles and a condition is imposed to require that the engines are turned off; the Operational Plan of Management, as amended, is satisfactory; and overall, the location of the site is suitable for the proposed use as a boarding house. Ms Erdelyi concurred with Mr Ison's opinion. 4. The parties' Access consultants prepared a joint report (exhibit 3). They agreed that all applicable contentions have been addressed. A further Access Report prepared by the council's expert in regards to the revised plans (exhibit 13) identified a number of issues outstanding issues. These have been incorporated into the agreed conditions of consent. Submissions 1. As required by the Land and Environment Court Practice Note for Class 1 development appeals, the council, in Consent Orders hearings, is required to demonstrate that relevant statutory provisions have been complied with and that objections have been taken into account. In addition, the council is required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the content of: the proposed orders, including the conditions of consent; the date of the hearing; and, the opportunity for any such person to be heard. 2. Mr Jackson submits that since the council's Statement of Facts and Contentions was prepared in January 2015, there have been several amendments of the proposal including the suite of plans and the Operational Plan of Management. Council is now satisfied that all of those contentions have been satisfactorily addressed and asks the Court to make the Consent Orders agreed by the parties. He presses the agreed position of the planning experts and Mr Ison's oral evidence summarised in [29] as a demonstration of the compliance with the relevant planning controls and council's consideration of the planning matters raised by objectors. 3. In regards to the objectors' submissions, in particular the letter from Conomos Legal on behalf of Mr Park, Mr Jackson contends that the Court should place greater weight on the expert evidence. He maintains that there has been a great deal of transparency in the way in which the council has communicated with the residents, and the council has complied with the relevant provisions of the Court's Practice Directions. Mr Jackson submits that the Operational Plan of Management has been on public display since December 2014 or January 2015 and there has been ample opportunity for its inspection. Findings 1. While the parties seek the Court to make the agreed orders, I must be satisfied that the proposal is lawful and if it is appropriate to grant the consent having regard to the relevant circumstances, including the proposed conditions. This requires consideration of the matters to be taken into account in s 79C of the Act. 2. In regards to the relevant environmental planning instruments, the proposal meets the applicable provisions for Boarding Houses in Division 3 SEPP ARH cl. 29 and cl. 30 including number of parking spaces for cars and motorcycles, size of rooms. Clause 30(1)(e) requires a room to be provided for a boarding house manager if there are to be 20 or more lodgers, while the proposal is for 15 boarders, the Operational Plan of Management includes a requirement that one of the residents act as an on-site manager. Relevantly, the planners agree that the proposal meets the character test in cl 30A of the SEPP. With the benefit of the site view I concur with this finding. 3. With respect to CLEP, the proposed use is permitted in the R4 High Density Residential zone; it meets the relevant objectives by providing for the housing needs of the community within a high density residential environment, and by providing a variety of housing types. 4. It meets the relevant requirements in CDCP in respect of waste management and disability and access. 5. I am satisfied that the likely impacts of the development have been addressed by the amended plans, including provision of flyscreen and privacy screens/highlight windows, the conditions of consent and the Operational Plan of Management. Given its proximity to Campsie shopping centre and public transport, the site is suitable for the location of a Boarding House. 6. In considering the submissions made by the objectors, while I appreciate the frustration felt by the neighbours in regards to the way in which the premises has operated in the past, the matter before the Court is a fresh matter that must be considered on its merits. Many of the objections raised are beyond the scope of the Court's jurisdiction. As considered in Newbury District Council v Secretary of State for the Environment [1981] AC578, conditions must be imposed for a planning purpose, relate fairly and reasonably to the development for which the consent is given, and be reasonable (the Newbury test). The test of 'reasonableness' is the Wednesbury test, that is, whether the condition is so unreasonable that no reasonable decision-maker could have imposed it. 7. In my view, many of the conditions proposed by the objectors are unreasonable as they would impose greater restrictions on the operation and use of the site than would ordinarily apply to any other lawful development. For example, Clissold Street is a public street with no parking restrictions; it would be entirely unreasonable to require any occupant of 62 Clissold Street to confine their parking to the front of the premises. However I note that a number of the suggestions made by the objectors in terms of refinements to the Operational Plan of Management have been accepted by the parties and have been incorporated into that document. 8. During the hearing, a number of residents stated that they had little time to review the Operational Plan of Management. I am satisfied that council fulfilled its obligations in accordance with the LEC's Practice Directions and the residents were given ample opportunity to review the amended plans, proposed orders and draft conditions. I agree with Mr Jackson's submissions that the council has kept the residents informed. While the Plan of Management was provided to the residents not long before the consent orders hearing, the council was under no obligation to do so and as stated above, the original has been on public exhibition for about 5 months. 9. The proposal complies with the relevant environmental planning instruments and council controls, and it provides affordable rental accommodation for those on low incomes and thus can be considered in the public interest. Conclusions and orders 1. Having considered the relevant matters under s 79C of the Act, the evidence of the planners and residents, and with the benefit of several site inspections, I am satisfied that the orders sought by the parties can be made. 2. By consent, the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA No. 213 of 2014 of 28 May 2014 as amended, for alterations and additions to premises being Lot 37 in Deposited Plan 4869 known as 62 Clissold Parade, Campsie, and for use of those premises as a fifteen (15) room boarding house, in accordance with the Conditions of Consent attached as Annexure "A". 3. All exhibits except 1, H, J, K and L are returned. _______________________ Judy Fakes Commissioner of the Court 10716 of 2014 (O) amended_orders (216 KB, pdf) ********** Amendments 16 July 2015 - Amended date of order 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: 16 July 2015