Land and Environment Court New South Wales Medium Neutral Citation: Adrem Nominees Pty Limited v Council of the City of Sydney [2015] NSWLEC 1395 Hearing dates: 7 August 2015 Date of orders: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Class 1 Before: Hussey AC Decision: 1. The applicant is granted leave to rely on the amended drawings identified in condition (1)(a) of "Annexure A" attached to these Orders. 2. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs in the amount of $2,500.00 within 28 days. 3. The appeal is upheld. 4. Development consent is granted to Development Application D/2014/1427 (as amended) for alterations and additions to an existing boarding house at 248-250 Moore Park Road subject to the conditions specified in Annexure A to these Orders. 5. The exhibits be returned except for 2, 3, 4, A, B, C & E. Catchwords: Development application: Boarding house additions and extensions, character of the area, heritage/conservation area, shadowing impact, building details, maintenance of internal open space corridor Legislation Cited: SEPP (Affordable Rental Housing) 2009 Sydney LEP 2012 Sydney DCP 2012 Category: Principal judgment Parties: Adrem Nominees Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Solicitors: Mr D Briggs, D G Briggs & Associates (Applicant Mr P Canning, Council of the City of Sydney (Respondent) File Number(s): 10246 of 2015 Judgment 1. Background: This appeal was lodged against Council's refusal of development application for alterations and additions to an existing boarding house at 248 and 250 Moore Park Road, Paddington. 2. The subject lot extends through to a secondary frontage in Leinster Street. The existing development comprises terrace houses on the Moore Park Road frontage and a converted stable type building fronting Leinster Street. Consequently there is an internal open space corridor traversing the subject and the neighbouring properties. 3. Insofar as the initial development application proposed the infill of the open space corridor, it was not supported by council due to the following contentions: * Heritage and built form; * Overlooking and overshadowing; * Proposed internal rooms non - compliance with current development controls; * Public interest considerations; concerning amenity impacts, on - street parking, construction impacts and compatibility with the character of the area. 1. However, as a result of conferencing by the parties, significant amendments were made, including substantial retention of the internal open space corridor and reorientation of internal rooms to restrict overlooking into neighbouring properties. After reviewing the amendments, council agrees to consent orders being made. The site 1. The site comprises two adjacent properties legally identified as Lot 1 in Deposited Plan 74888 and Lot 1 in Deposited Plan 998739. Taken together, the site is rectangular in shape and measures approximately 520sqm in area. It has a principal frontage to Moore Park Road and a secondary frontage to Leinster Street. The site contains two adjoining three storey (with attic) terraces fronting Moore Park Road and a two-storey outbuilding fronting Leinster Street. Between the rear wing of the terraces and the outbuilding is a full width open space. Although appearing as two separate properties from the street, the terraces are operated as a single boarding house with 24 boarding rooms (20 in the terraces and 4 in the rear garage structure). 2. The terraces date from the 1880s and the outbuilding to the rear is a former stable block. Although not heritage items, the properties are identified as 'contributing' buildings and are located in the Paddington South Conservation Area (CA48). 3. Surrounding development is predominantly residential in nature. To the immediate west of the site is an adjoining three storey terrace (forming a group with the two terraces on the subject site) used as a private dwelling. To the immediate east of the site is a three storey terrace used as a private dwelling. 4. Leinster Street to the rear of the site is predominantly characterised by single storey garages or garages with ancillary accommodation above in association with properties with principal frontages to Moore Park Road or Stewart Street. Across the road from the site to the south of Moore Park Road is the Allianz Stadium and associated parking. The proposal 1. The amended proposal is for the carrying out the following works: 1. Demolition of the outbuilding fronting Leinster Street and the erection of a replacement two storey addition facing Leinster Street and a two storey addition to the rear of the main house. 2. Alterations to the frontage of the terraces including the removal of enclosures to the front verandas and reinstatement of cast metal balustrades, changes to lower ground floor windows to create doors and new landscaping with a new pedestrian gate, path and ramp; 3. External alterations to the rear of the terraces including changes to windows and new roof level dormers; and 4. Internal alterations including changes to room configurations and layouts, the provision of new kitchenettes and bathrooms in each room and a new common room, laundry and outdoor courtyards. 1. The proposed work would result in the boarding house containing 26 en-suite rooms (9 double, 17 single), one of which would be allocated to a caretaker. In total, the boarding house would provide accommodation for a maximum of 35 residents. Planning controls 1. The site is Zoned R1 - General Residential in the Sydney LEP 2012 and the proposed development is permissible with consent. The Sydney LEP imposes a maximum height of 12m and a maximum floor space ratio of 1.5:1 on the site. Under the State Environmental Planning Policy (Affordable Rental Housing) 2009 an additional 0.5:1 is available for boarding houses on sites with an FSR control of less than 2.5:1. 2. The aims of the SEPP include: (a) to provide a consistent planning regime for the provision of affordable rental housing, (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, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) 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, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation. 1. Relevantly, the SEPP also contains a number of standards that if complied with cannot be used to refuse an application. Clause 30 A provides: 30A Character of local area 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. The evidence 1. Detailed oral and written evidence (Exhibit 3) supporting the amended application was presented by Ms S Fagan, Area Planning Manager for council. She addressed the particular circumstances that there is an existing, approved boarding house on the premises and therefore a reasonable degree of balance is required in assessing the merits of the amended proposal. 2. With regard to the identified contentions, Ms Fagan supports the consent orders because: * The amended proposal reinstates the open space area between the rear wing of the building and new outbuilding thereby achieving reasonable compatibility with the existing character of the area. * The amended architectural design is more sympathetic to the location and the objectives of cl 6.21 of the Sydney LEP 2012 and Sydney DCP 2012. The amended form of the building steps down from the main frontage and the additions are compliant with the maximum FSR of 1.5:1 allowed under the LEP. Notably the proposal does not rely on the bonus FSR provisions of the SEPP. * Whilst there are 2 more rooms, nevertheless the common room has been enlarged to exceed the minimum designated area of 43.75 sq m and the internal open space corridor retained. This allows the development to orient its room windows internally and thereby avoid overlooking and adverse privacy impacts. * The amendments enable a satisfactory level of internal amenity to be achieved, subject to the conditions of consent. * Most of the amenity concerns raised by the objectors can be satisfied to a reasonable level by compliance with the provisions of the Plan of Management (POM). This requires the on - site manager to control any anti-social behaviour and there is a "complaints register" to monitor complaints and response actions. Conclusion 1. This application was made under the provisions of SEPP (Affordable Rental Housing) 2009, which contains a number of aims to facilitate the delivery of new affordable rental housing. The aforementioned aims of the SEPP confirm the desire to encourage and facilitate a "balanced approach" to the provision of additional affordable rental housing. 2. I understand from Ms Fagan's evidence that as the existing boarding house has existing use rights then careful balancing of the competing issues is required. In this regard, cl 30 A presents a critical test and I am satisfied to rely on her description of the character of the area and her opinion that the amended proposal reasonably satisfies the compatibility test. 3. The character of the area was initially addressed in the Statement of Environmental Effects and the Heritage Impact Statement (Exhibit G). Whilst the existing buildings on the site are old buildings estimated to have been built around the 1880.s, they are not classified heritage items. However, the site is located within the Paddington South Conservation Area and is identified as being a contributory item within the Conservation Area by the Buildings Contributions Plan (Sydney DCP 2012). 4. It is apparent from the evidence that detailed consideration of the heritage impacts and compatibility of the proposal with the conservation area have been considered in detail by the parties in the conferencing, leading to the consent orders. In this regard, I have considered Mr R Staas's (Heritage Consultant) support, as follows, for the proposal and consequently accept that the heritage considerations under the LEP and DCP are reasonably satisfied, so as to enable conditional consent. I understand that the structure was identified in a study of surviving former 'stables' buildings in Paddington as having moderate integrity and significance, but that neither the site on which they are located or the structures themselves are heritage listed. The site is located within a Heritage Conservation Area and the former 'stables' building is considered to contribute to the secondary significance of Leinster Street as a component of the area. The inspection made of the two co-joined structures indicated that they had been considerably modified at various times to provide additional accommodation associated with the Boarding House facility and that these changes were generally detracting in character to the original building. Some of the changes such as alterations to original openings have resulted in substantial cracking, the concrete slab in one of the structures will have resulted in additional rising damp and the failure of the original hardwood lintels has caused deformation of the front facades. The second structure which had a timber ground floor and was very dilapidated as a result of rotting of the flooring structure. Modern internal linings had been built into the structures because the external walls were of solid 230mm and 110mm, single brick skin construction. A separate structural assessment and BCA audit of the buildings, now submitted to the Council indicates that while not in a state of imminent structural failure, that there are significant intrinsic problems that would require substantial reconstruction to overcome. These works would in my opinion further reduce the limited degree of integrity that the structures demonstrate and would not be warranted on heritage grounds. I note that this was also the opinion of James Phillips who prepared the original Heritage Impact Statement submitted with the Development Application. The proposed design of the replacement structure in the revised drawings presented to the Court at the Section 34 Conference indicate a form and detail that closely resembles the existing in terms of its presentation to the street but one that can comply with present day standards of construction and amenity. Additionally as discussed at the Section 34 Conference, it would be possible for the original use of these buildings and indeed other 'stable' related structures to be interpreted with an appropriate sign attached to the new building including background material from the 'Stables Study' and any related history of the subject site. I consider in the circumstances that this would provide appropriate recognition of the value of such buildings and their former use in the area. To assist with this interpretation it would be of assistance to have a copy of the relevant information from the study which we understand you have access to. In support of the revised application I consider that • The physical state of the existing building is highly compromised and does not reflect significant heritage values. • Retention of the existing structure would involve further substantial intervention which would further reduce any degree of integrity. • The current design replaces the building with one of similar scale and form that will not appreciably alter the streetscape presentation. • Appropriate interpretation can be instigated to inform interested parties of the role of stables in residential development in the Paddington Area prior to the mid 20thcentury. 1. In conjunction with this, I also consider that the maintenance of the internal open space corridor is an important element in achieving the overall acceptability of the design in terms of the cl 30 A considerations and its compliance with cl 6.21 of the LEP 2012 and the DCP controls. Insofar as a number of objections were lodged, I consider that the amended proposal will minimise overlooking and over shadowing of the neighbouring properties, in the context of the existing boarding house. 2. However there was a number of objections to the original application and they were taken into account during the subsequent conferencing by the parties. The objectors were notified of the Consent Orders and further submissions made. In summary, they relate to some dissatisfaction with the proposed building designs compliance with the relevant LEP and DCP controls, such as provision of dormer windows and appropriate building facades. Also to possible amenity impacts of shadowing, noise and use of the common room/communal space and exacerbation of existing on-street parking issues. 3. With regard to the objections concerning possible anti- social behaviour such as noise amenity and smoking nuisance, I note that the conditions of consent require a resident manager to manage the various tenants, in accordance with a Plan of Management, which includes the maintenance of a 'Complaints Register' to monitor and action any anti – social behaviour complaints. The on-street parking issue is not a matter that would lead to the refusal of the application in my assessment. Accordingly, I consider the public interest considerations have been reasonably addressed. 4. Having considered the evidence and submissions, I am satisfied to rely on the evidence of Ms Fagan and the heritage experts that the amended proposal satisfies the Cl 30 A compatibility test. I have also had regard to the provisions of cl 6.21 of the LEP and rely on the aforementioned evidence that in the subject context, these provisions are satisfied to enable to Consent Orders to be granted. Court Orders 1. By consent the Court orders that: 1. The applicant is granted leave to rely on the amended drawings identified in condition (1)(a) of "Annexure A" attached to these Orders. 2. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs in the amount of $2,500.00 within 28 days. 3. The appeal is upheld. 4. Development consent is granted to Development Application D/2014/1427 (as amended) for alterations and additions to an existing boarding house at 248-250 Moore Park Road subject to the conditions specified in Annexure A to these Orders. 5. The exhibits be returned except for 2, 3, 4, A, B, C & E. R Hussey Acting Commissioner ********** 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: 28 September 2015