Land and Environment Court New South Wales Medium Neutral Citation: Tian v Burwood Council [2015] NSWLEC 1480 Hearing dates: 10 November 2015 Date of orders: 24 November 2015 Decision date: 24 November 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: boarding house Legislation Cited: Burwood Local Environmental Plan 2012; State Environmental Planning Policy Affordable Rental Housing 2009; Environmental Planning and Assessment Act 1979 Cases Cited: New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Texts Cited: Burwood Development Control Plan 2013 Category: Principal judgment Parties: Philip Tian (Applicant) Burwood Council (Respondent) Representation: Solicitors: Ms J Wauchope Gadens (Applicant) Mr T O'Connor Houston Dearn O'Connor (Respondent) File Number(s): 10502 of 2015 Judgment 1. Mr Tian lodged Development Application No 136/2014 with Burwood Council on 10 September 2014 seeking consent to demolish the single storey dwelling house at 7B Church Street and the two storey dwelling at 9 Church Street Burwood (with the exception to the street front tower development) and construct a two storey boarding house with basement parking. The application had not been determined within the prescribed period and Mr Tian is appealing its deemed refusal. 2. Through the preparation of amended plans, all of the Council's contentions in the case, other than the issues raised by the public in submissions it received, have been resolved. The site and the locality 1. The site comprises three adjoining allotments with a combined frontage of 27.34m to Church Street and a stepped rear boundary. It is known as Nos 7B and 9 Church Street Burwood. The eastern boundary has a length of 38.84m and the western boundary is 29.6m with a site area of 999.8m². The site has a fall of approximately 1.87m from its south-eastern corner to its north-western corner and a fall of approximately 1.7m from its south-eastern corner to its north-western corner. The fall along its street frontage (east to west) is approximately 800mm. 2. Improvements on the site include a single storey dwelling on No 7B and a two storey dwelling on No 9 (the western allotment). 3. Adjoining properties are mainly single storey dwelling houses, however, two storey dwellings are located across Church Street towards the south west and on its northern side towards Shaftsbury Road. Council's heritage listed community centre (Woodstock) is located to the south (opposite the site) and a two storey dwelling (No 15 Church St) adjoins three-storey plus attic commercial development at the corner of Burwood Road and Church Street, approximately 80 m to the west of the site. Single storey dwellings are located to the north of the site and a child-care centre (12 Clarence Street) has a common rear boundary with the site. Background and the proposal 1. The plans originally lodged the Council provided for a two storey building with basement car parking and a total of 26 boarding rooms and an on-site manager's room. The building proposed included the retention of an existing tower element that forms part of the dwelling at No 9 Church Street. 2. Following a conciliation conference the applicant prepared amended plans in an attempt to address the contentions in the case. Leave was granted to rely on those plans on 4 September 2015. 3. The amended plans propose the construction of a two storey building above basement parking. The building has been designed so as to appear as 2 detached dwelling houses when viewed from the street and is oriented around a central courtyard and access area. The basement would be accessed from a ramp in the south western corner of the site and it provides parking for 10 cars, 7 motorbikes, 10 bicycles with a garbage room and storage room also at that level. A lift provides access to the ground and first floors from the basement. 4. The proposed building would be constructed on a 6m alignment to Church Street, a minimum of 3.5m from the western and 2.02m from the eastern property boundaries and 6m from the most northern section of the rear boundary and 5.605m from the remaining boundary at ground level with greater setbacks at first floor level to comply with the council's setback and building envelope controls. 5. The proposed pedestrian access to the building would separate the two front portions of the structure and provides access to the internal circulation area. Ten boarding rooms, an office area, communal room and disabled WC would be provided on the ground floor with a further 14 boarding rooms provided on the first floor. Of the 24 rooms, 6 would be double rooms and 18 are single with the ground floor north eastern room used as the manager's room. Three of the double rooms on the ground floor have been designed as accessible units. The planning controls 1. The site is zoned R2 Low Density Residential under Burwood Local Environmental Plan 2012 (LEP). Boarding houses are permissible with consent in the R2 zone. Clause 4.3 of the LEP provides development standards for height of buildings with an 8.2 m height limit applicable to the site. The proposed development is compliant with that development standard. Clause 4.4 provides for maximum floor space ratio with up to 0.55:1 permitted. At 0.54:1, the development is also compliant with that development standard. 2. The provisions of State Environmental Planning Policy Affordable Rental Housing 2009 (SEPPARH) apply to the development. The site is within an accessible area for the purpose of that policy as it is 424 m walking distance to the public entrance of the Burwood railway station. 3. Clause 29 of SEPPARH lists standards that cannot be used to refuse consent. These include building height, landscaped area, solar access, private open space, parking and accommodation size. The development complies with all of these standards. 4. Clause 30 provides a range of standards for boarding houses which a consent authority must be satisfied are met. The development meets all of these standards and consent conditions have been prepared to insure compliance with the relevant provisions including limitation on the number of lodgers within rooms and the provision of a boarding house manager. 5. Clause 30A of SEPPARH is particularly relevant to the contentions in the case and requires a consent authority to consider whether the design of the development is compatible with the character of the local area. 6. Burwood Development Control Plan 2013 (DCP) applies to the site with clause 5.3 - 03 and 04 Objectives - Boarding Houses: Amenity and Provisions and clause 6.5 Stormwater concept management plans also relevant to the contentions. The development complies with all relevant aspects of the DCP. The issues 1. Mr O'Connor, for the Council, advises that the Council no longer presses contention 1 - character of local area, contention 2 - height of the building, contention 3 - residential amenity, contention 4 - building appearance, contention 5 - building setbacks, contention 6 - stormwater disposal concept plans and contention 7 – precedent. That is because the amended plans address these contentions to the satisfaction of the expert planners and/or the development is now compliant with the Council's planning controls and those detailed in SEPPARH. 2. The remaining contention is the public interest and in particular the matters that have been raised in submissions received in relation to the proposal. The evidence 1. The hearing commenced on site with a view of the property and the local area including the adjacent child care centre. A number of residents and the operator of the child care centre gave evidence on site and at the child care centre. The issues raised by them are summarised as follows: * development is inconsistent and incompatible with the local area and its streetscape; * concern for the safety of children; * overlooking of play area of child-care centre; * children within the child-care centre may be exposed to inappropriate language and smoke from builders and residents using the common open space areas and noise, vibration and dust during construction; * overshadowing of adjoining properties; * development to large and bulky with inappropriate setbacks from boundaries; * Church Street is narrow with parking on one side only and development will exacerbate the existing parking shortage because it does not provide adequate on-site parking; * area is zoned for low density development and a boarding house accommodating up to 30 residents is not low density; * adverse amenity impacts, particularly noise and overlooking; * will attract a clientele that is unsuitable to the area; * safety and security concerns, impact on use of adjacent Woodstock open space areas; * inadequate amenities provided within the boarding house so residents will use adjoining parkland; * concern about asbestos during demolition. 1. Expert town planning evidence was provided by Mr A Betros for the applicant and Mr M Sue for the Council. 2. They have assessed the amended plans and agree that they deal with all of the matters raised in contentions 1-7 of the Council's Statement of Facts and Contentions filed with the Court on 10 July 2015. 3. They also agree that the proposal now adequately addresses those matters raised in the objections received by the Council and accordingly there is no reason that consent should not be granted. The development is fully compliant with the provisions of the LEP, DCP and SEPPARH and the overshadowing of adjoining properties is minor with the only impact occurring after 2pm. They confirm that the setbacks of the proposed building are greater than would be provided should a two storey dwelling house be constructed on each of the lots. 4. In relation to the provisions of clause 30A of SEPPARH they agree that the DCP provisions define the character of the area and that the design of the proposed building would not be inconsistent with that character. Mr Betros deals with this in his statement of environmental effects, Exhibit B and makes reference to 2 storey dwellings with basement to the south west of the site in Church Street as having similar built form to that proposed. I accept that evidence which is no contradicted by the council and was observed during the site view. 5. The experts also agree the proposed conditions of consent and the terms of Plans of Management for both construction and operation of the boarding house will address the concerns of residents in relation to behaviour of occupants and construction workers during the period in which the site is being redeveloped, noise and amenity concerns. 6. Mr Sue advised the Court that the Council has no evidence of adverse social impact arising from a boarding houses within its local government area, other than complaints that relate to unauthorised use of buildings as boarding houses. Conclusion and findings 1. In accordance with the provisions of S79C of the Environmental Planning and Assessment Act 1979, I must have regard to all of those matters relevant to the application. Having regard to the evidence, I am satisfied that the amended plans are consistent with the provisions of the LEP and DCP, noting that the building is fully compliant all relevant development standard, setbacks and numerical controls. 2. I am also satisfied that the design of the development as proposed would be compatible with the character of the local area. There is no evidence that the proposal would have any adverse impact on the natural or built environment or that there would be adverse social or economic impacts. The planning experts conclude that the development as proposed is suitable for the site and I accept their evidence. 3. The proposal provides on-site parking for 10 cars which is well in excess of the five spaces required by clause 29(2)(e)(i) of SEPPARH. Accordingly, parking is not a reason to refuse consent. 4. As acknowledged by the proprietor of the child-care centre, any redevelopment carried out on adjoining properties is likely to result in noise, dust or vibration. Provided this is appropriately managed, this is not a reason to refuse consent. The Council has prepared conditions of consent to ensure that the impacts are appropriately managed and minimised. Similarly, conditions of consent have been imposed to ensure the safe and appropriate disposal of any asbestos that may be found on the site. 5. The applicant would provide, prior to the commencement of demolition, a new 2m high lapped and capped boundary fence along the southern boundary of the child care centre to address privacy and noise concerns. This would be supplemented by privacy screens on the upper level windows of the building that are designed to ensure no overlooking of the play areas. In addition to this fence, a landscaped hedge would be provided along the boundary with a supplementary fence erected 2 m from the common boundary with the child-care centre that would ensure persons could not access that area directly adjacent to the playground other than for maintenance of the landscaped areas. I am satisfied that these measures satisfactorily address the privacy concerns. 6. Conditions Planning 31 and Demolition 9 of the consent conditions provide for induction of all workers to ensure they do not use inappropriate language and the operational Plan of Management for the boarding also imposes controls on the use of the open space area including that it is not used for smoking. 7. I note that a boarding house is a use contemplated by the Council within the R2 zone and that the application does not rely on any of the "bonus" provisions of SEPPARH in terms of floor space; that it is fully compliant with all of the relevant development standards in the LEP and the controls in the DCP. Therefore, it is not a use that is inappropriate within the R2 zone, and it will achieve the objectives of SEPPARH through the provision of affordable housing within close proximity to the Burwood Town Centre and public transport. 8. Finally, in relation to the concerns of residents in regard to potential occupants of the boarding house, there is no evidence that those concerns will manifest themselves in the event that consent is granted. Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 considered the impact upon amenity and states at [61-62]:- In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area….. That whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, wait if there is no objectives, specific, concrete, observable likely consequence of the establishment of the proposed use. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act. 1. In this regard, I have heard from Mr Sue that the Council has no evidence that the fears of the residence would be recognised should consent to be granted. 2. For these reasons, I am satisfied that the proposal is consistent with the relevant planning controls, any impacts of the development can be appropriately managed; the site is suitable for the proposed development and the matters raised by objectors to the development have been addressed through conditions of consent or are not reasons to refuse consent. The design of the development is compatible with the character of the local area. Finally, I consider the development would be in the public interest as it provides affordable housing within close proximity to amenities and services. 3. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application No 136/2014 for the demolition of the single storey dwelling house at 7B Church Street and the two storey dwelling at 9 Church Street Burwood and construction of a two storey boarding house comprising 24 rooms, one of which is a manager's residence with basement parking is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, D and E, are returned. ______________ Sue Morris Commissioner of the Court 10502 of 2015 Morris (C) (373 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: 24 November 2015