Blazic v Willoughby City Council [2016] NSWLEC 1282

Land and Environment Court New South Wales

Medium Neutral Citation: Blazic v Willoughby City Council [2016] NSWLEC 1282 Hearing dates: 18 May 2016 Date of orders: 08 July 2016 Decision date: 08 July 2016 Jurisdiction: Class 1 Before: Smithson AC Decision: 1. Leave is granted to the Applicant to rely upon amended plans as set out in condition 1 of Annexure "A". 2. The appeal is upheld. 3. Development Application No. DA-2014/561(c) for the demolition of the existing dwelling and construction of a new two storey ten room Boarding House and attached garage at 4 Scott Crescent, Roseville NSW is approved subject to the conditions set out in Annexure "A". 4. The Exhibits, other than Exhibits 3 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; boarding house; resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) Willoughby Local Environmental Plan 2012 Category: Principal judgment Parties: Michael Joseph Blazic (Applicant) Willoughby City Council (Respondent) Representation: Mr Peter Rigg (Applicant) Mr Ken Webber (Respondent)

Solicitors: Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 160842 of 2016 Publication restriction: No

Judgment 1. ACTING COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (the Act), comes before the Court for consent orders in relation to the refusal by Willoughby Council (the Council) of Development Application DA-2014/561(c) for the demolition of an existing single storey dwelling house and construction of a new two storey ten room boarding house and attached garage at 4 Scott Crescent, Roseville (the site). 2. The application was lodged and assessed under the provisions of State Environmental Planning Policy (Affordable Rental Housing) (the Affordable Rental Housing SEPP or the SEPP). 3. Prior to determining the application, the Council advertised the proposal and there was considerable objection from residents in Scott Crescent as well as a petition lodged and representation made by the local Member of Parliament. 4. The appeal was subject to mandatory conciliation on 17 November, 2015, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference phase, the conference was terminated pursuant to s34(4) of the LEC Act. The proposal was amended following the conciliation conference and leave was granted by the Court for the applicant to rely on amended plans. 5. The amended plans retained 10 boarding rooms over 2 storeys with 4 rooms at the upper level and 6 at the lower level, each containing an ensuite and a kitchenette. The maximum overall occupancy is 12 lodgers. Four parking spaces are proposed; one in a garage adjoining the southern boundary and three in front of the building which is set back in excess of 8m from the street. Two motorcycle bays and two bicycle bays are also provided. Existing trees and the landscaped rock wall in the rear yard are to be retained and a clothes drying area provided. Additional landscaping is proposed along the southern boundary to help screen the development from, and improve privacy for, the southern neighbour. 6. Prior to the hearing, the parties agreed to enter into consent orders based on the amendments made to the proposal and the provision of additional information to address information inadequacies identified by the Council. 7. The amendments to the proposal can be summarised as follows: - The communal room was relocated away from the side boundary to the rear to provide improved solar access and a better relationship with the external open space. - Provision of a separate laundry. - Improvements to the garage to allow better access to the bicycle and motorcycle parking areas as well as an internal access door provided between the garage and the boarding house. - Onsite provision for parking of 4 cars, with the building setback further to provide the additional car bays at the frontage. - Changes to the layout of the ground floor rooms to improve amenity. - Improved landscaping to provide better screening. - An amended Plan of Management providing, inter alia, for a head tenant to be the initial point of contact on site to deal with any neighbour complaints. 1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraph 36) provides relevantly: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. The Council furnished the Court with documentation confirming that the objectors had received notification of the proposed consent orders and were provided the opportunity to be heard at the hearing as required by the Practice Note. 2. The consent orders hearing was held on 18 May, 2016. It was agreed by the parties that the issues raised by objectors at the conciliation conference, as well as those lodged against the original application and the amended plans, could be considered by the Court at the hearing.