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. Objector Concerns 1. At the conciliation conference, the Court heard from eight objectors and viewed the property from a number of objectors' residences and from the street. In summary the following issues of concern were raised by the objectors: 1. Social impacts associated with anti- social behaviour from boarding house residents and the lack of adequate management and/or an onsite manager to deal with community issues and security concerns 2. The proposal would bring back the social impacts and negative issues associated with public housing that used to exist in the street and which often required police attendance, but which have gone with the redevelopment of this public housing 3. Parking and traffic in Scott Crescent 4. Impact on the character of Scott Crescent with the development being out of character with the existing streetscape 5. Impact on property values 6. Precedent for other boarding houses to be built 7. Inadequate nearby commercial facilities and services 8. The height, bulk, design and scale of the building 9. The internal amenity of the proposed boarding house including lack of solar access to communal open space, inadequacy of communal open space and fire safety issues 10. Impact on the immediately adjacent neighbour to the south at 6 Scott Crescent in terms of privacy/overlooking and overshadowing particularly of the rear yard 11. Non-compliance with DCP requirements. 1. At the hearing, four residents of Scott Crescent provided additional evidence in support of their objections having all had the opportunity to review the amended proposal. 2. Mr Maiorana raised concerns with the impact of the development on the street including the increased traffic and parking. He was concerned that there was insufficient onsite parking provided. Mr Maiorana also voiced a concern with the social impact of the development noting that existing residents of Scott Crescent would have to live with the outcome. 3. Ms Park also raised a concern with the impact of the development on parking in Scott Crescent and with access constraints associated with the road's geometry particularly for ambulances. She disputed that the development had good access to public transport stating that the bus routes in the vicinity did not service hospitals. She queried that occupants such as teachers and nurses were low income and considered that there would be adverse social impacts given the likely transient nature of future occupants. 4. Dr Chhabra pointed out to the Court that Scott Crescent was a short narrow cul de sac and as a result children who live in Scott Crescent frequently play or ride in the street and it would become unsafe to continue to do so. As a doctor in a public hospital, he understood that boarding houses had a role to play but he considered they should be located elsewhere, in areas with good public transport. He was concerned that no onsite manager was proposed for 10 boarding rooms and that any appointed head tenant to oversee management would have no power or accountability in dealing with neighbours' complaints. He agreed with his neighbours that parking and access (particularly for emergency vehicles) were real issues. 5. Dr Chhabra re-iterated what many residents indicated at the onsite conference: that there was a sense of community in the street which had a low density character with a number of children residing there. He was concerned about the increased proportion of adults that would reside in the street and the impact on property values. From a design perspective he questioned the increased risk of fire with the number of kitchens proposed. Finally, Dr Chabbra considered the number of rooms to be excessive and inappropriate in the location suggesting that any boarding house should be a maximum of 5 rooms. 6. Ms Hill indicated she wished to speak in particular on behalf of the immediately affected neighbour to the south, Mrs O'Brien who was an elderly lady, long term resident and, since the conciliation conference, had become a widow living on her own who was too ill to attend the hearing. Mrs O'Brien had raised with Ms Hill concerns about her security living adjacent to a boarding house. The amendments to the plans to move it back raised additional concerns with overlooking and overshadowing as well as passive smoking. Mrs O'Brien was also concerned that there was inadequate onsite parking and that construction of the boarding house could result in cracking to her house. 7. In summary, the neighbours were all concerned that the proposal was not in keeping with the family oriented low density character of the street, would have unacceptable social and property value impacts, and would exacerbate or result in adverse access, parking and security outcomes. Site and Planning Context 1. The subject site is described as Lot 2 of DP 36326. It is regular in shape with an area of 622.8m² and is relatively flat. 2. The site is surrounded by predominantly 1-2 storey dwellings and is located within a cul de sac, being Scott Crescent, which is accessed off Boundary Street. 3. The site is adjoined to the north at 2 Scott Crescent by a single storey dwelling with appears vacant and derelict and is elevated above the site. To the south the subject site is adjoined by a single storey cottage at 6 Scott Crescent which is set below the level of the site and is occupied by Mrs O'Brien. Properties at the rear of the site front Boundary Street and are also elevated about the subject site and above 6 Scott Crescent. They are largely screened from properties in Scott Crescent by the topography of the area and extensive landscaping along rear boundaries. 4. The application is required to be assessed under the provisions of the Affordable Rental Housing SEPP. A boarding house is permissible in the Residential R2 zone in which the site is located under the Willoughby Local Environmental Plan 2012 (the LEP). This is providing the site is within an accessible area as defined in the SEPP and is within a 400m walking distance of land within a Local Centre, Mixed Use or similar zone. 5. The parties confirmed that the site is within an accessible area and is also within 400m of land which is appropriately commercially zoned. 6. Under the SEPP, development consent cannot be refused under clause 29 (1) on the grounds of density or scale if it meets the relevant floor space ratio (FSR) maximum specified in the SEPP which is 0.4:1. The proposal complied with the FSR and therefore the density or scale of the proposed boarding house cannot be grounds for refusal. 7. Development consent also can not be refused if the development complies with criteria specified in the SEPP in terms of building height, landscaped area, solar access, private open space, onsite parking provision, and minimum room sizes. Even if compliance to any of these standards is not met, the application can still be approved. In this instance, however, all of the specified standards have been met. 8. In particular, of relevance to this application, the proposal meets the following requirements of the SEPP: 1. A communal living area is provided 2. None of the boarding rooms exceeds 25m² or will be occupied by more than 2 lodgers 3. Adequate bathroom and kitchen facilities are provided 4. Adequate bicycle and motorcycle parking is provided. 1. A boarding house manager is not required under the SEPP for boarding houses with less than 20 rooms and none is proposed in this application. However, in response to concerns raised by objectors in terms of management of the facility, the applicant proposed within the amended Management Plan to allocate a 'head tenant' amongst the boarders. This tenant would be a point of contact for neighbours to deal with issues which may arise in the operation of the boarding house. 2. Under clause 30A of the SEPP, the Court, can not consent to the development of a boarding house under the SEPP "unless it has taken into consideration whether the design of the development is compatible with the character of the local area". 3. Many objectors raised a concern that the proposal was out of character with the area and with the street in particular. However, much of the objection related to the proposed use of the site for a boarding house not to the development's design, per se. Whilst consideration of this issue is dealt with later, it is a relevant consideration that the SEPP provision is not concerned with the use but only with the design of the development. 4. The Council did not raise any concerns in terms of compliance with the Willoughby LEP or Development Control Plan but, in any event, the SEPP standards and provisions would prevail. Expert evidence 1. Expert evidence was provided to the Court from Mr White, a planner for the Council and Mr Sarich, a planner for the applicant. 2. The experts agreed that the proposal as amended met the objectives and provisions of the SEPP, and of Council's LEP and DCP to the extent that they applied. Specifically, the changes in the amended proposal would result in: 1. Additional onsite parking; 2. A reduction in the bulk; 3. Improved internal amenity; and 4. Improved onsite management. 1. Accordingly, the Council considered the proposal, as amended, to be acceptable. Mr White, planner for the Council, stated (Exhibit 2) that he was satisfied "that reasonable measures have been undertaken by the applicant to provide a boarding house which meets the character test of the SEPP and will include all necessary operational measures to minimise neighbour disturbance". Responding to Objector Concerns Impact on property values and anti-social behaviour 1. Whilst applications for boarding houses frequently raise concerns about impact on property values from neighbours, there was no evidence before the Court that this would be the case and, in any event, this is not a matter for consideration under s79C of the Act. 2. I do note however, that the design and scale of the development is such that it will appear as a 2 storey, albeit large, dwelling which will not necessarily be discernible as a boarding house per se. There is no basis therefore for me to conclude that the development will adversely impact property values. 3. Similarly residents in the vicinity of proposed boarding houses typically raise concerns with anti-social behaviour. Whilst this may be true of residents of boarding houses of the past, situated in certain locations or where poorly managed, there is no evidence before the Court that this will be an outcome of approving this application. The SEPP permits boarding houses in low density locations such as is proposed and the applicant is not required to provide on site management, albeit there is at least an offer to provide a head tenant to try and address neighbour concerns that may arise from the operation of the facility. 4. The consent requires compliance with a Management Plan which is to include fire evacuation procedures and a no smoking policy. The consent also limits the number of lodgers and requires a complaints book to be maintained. Mr White considered the Management Plan proposed to be reasonable and "sufficiently thorough to provide the protection mechanisms for resident amenity" (Exhibit 2). 5. The Court is not at liberty to refuse an application on unjustified fears of what may occur. The development is a form of affordable accommodation contemplated and in fact encouraged by the State Government through the formulation of the SEPP in a variety of locations across the State including in streets such as Scott Crescent. I have yet to consider an application for a boarding house in any location that is supported by neighbours yet the need for affordable housing such as is proposed is the reason the SEPP exists where such development would otherwise be refused due to resident objections. I can therefore only consider the application on the basis of compliance with the provisions of the SEPP and the relevant planning controls. Parking and Traffic 1. No expert evidence was provided to the Court in terms of parking and access requirements other than by reference to the provisions of the SEPP. 2. The Council did advise the Court that the area is well serviced by public transport with the site less than 300m from the nearest bus stop in Clive Street and in proximity to other bus stops in Boundary Street. It was also agreed that the site meets the accessible area criteria under the SEPP. 3. The applicant argued that there was nothing particularly unusual about Scott Crescent as a residential street which would warrant refusal of the application. Scott Crescent is relatively straight with footpaths and onstreet parking on both sides. Mr White agreed it was a typical cul de sac with a low speed environment and noted that, as the site was at the entry to the cul de sac, boarding house residents accessing the house or seeking to park at the property would have no reason to drive beyond the property into the street although it was acknowledged they may need to do so if looking for onstreet parking. 4. I have already noted that consent can not be refused if the amount of parking required by the SEPP is provided as is the case in this application where additional parking to that required by the SEPP is actually provided in response to the parking issues raised by residents. In this regard a total of 2 bays are required and 4 are provided in addition to the development meeting SEPP requirements for provision of motorcycle and bicycle parking with 2 motorcycle and 2 bicycle spaces also provided onsite. 5. Therefore, whilst the neighbours may still consider that the application provides inadequate parking, and that there is a high demand for onstreet parking already, the amount of parking provided onsite in the application is twice what the planning controls require. 6. Whilst I accept that resident children may play in the street because it is a cul de sac and adjoins a local park at the end of the street, it would not be appropriate for the Court to condone the use of the roadway for playing rather than for vehicles given the potential safety issues and conflicts. This is irrespective of the form of development that occurred on the site and noting that there are footpaths on both sides of the street which could otherwise be used. 7. Given the lack of expert evidence raising concern with the ability of Scott Crescent to accommodate the access requirements or traffic volumes associated with the development, and the compliance of the proposal with the provisions of the SEPP in terms of parking provision and access to public transport, access or parking considerations are not grounds for refusal. I re-iterate that the Court can not refuse the application on grounds of adequacy of off street parking, when compliance with the SEPP provisions is achieved. Streetscape Character and Amenity Impacts 1. In the opinion of both planning experts, the boarding house would not have an adverse impact on the streetscape. The Council considered dwellings in the surrounding area to be of a similar scale and shape to the boarding house noting that on the opposite side of the street to the site there is a contemporary dwelling of two storeys. 2. The only issue that the Council raised initially in terms of streetscape character was the location of parking within the front setback which was not compatible with the character of the local area. However, the amended plans resulted in a further setback of the building to maximise the amount of parking provided on site to meet objectors concerns of parking adequacy and I note there were examples in Scott Crescent of parking in the front setback area. 3. Furthermore, resident concerns related more to the lack of parking than its location and, as previously indicated, the applicant has agreed to provide additional parking to that required by the SEPP. 4. The majority of resident concerns were with a boarding house being developed on the site per se, rather than specific concerns with height, bulk and/or scale. 5. In this regard, I note the design proposes a development that has the form, bulk, scale and appearance of a single dwelling house, albeit large and 2 storey. At 7.31m in height the boarding house will be lower than the maximum permitted height for dwellings in the zone of 8.5m under the LEP. This height resulted from the applicant's attempt to minimise overshadowing and adverse impacts on the adjoining residence at 6 Scott Crescent occupied by Mrs O'Brien. As a result of additional information provided by the applicant, Mr White was satisfied, as am I, that Mrs O'Brien will continue to receive ample solar access to her property. 6. In terms of overlooking, Mr White considered the boarding house, as amended, to be well designed with the outlook to the street and rear rather than to the sides. In addition, the upper floor windows of the boarding house are either obscured or tall highlight windows to minimise overlooking of 6 Scott Crescent. 7. Council officers also concluded that the proposed boarding house fitted in well within the context and the character of the immediate area having regard to its height, setbacks, landscaping, architectural style and materials (Exhibit 1, folio 64). 8. In terms of landscaping, the Council agreed that the amended proposal was a significant improvement on the initial proposal and there was now a reasonable attempt to both assist with screening the boarding house and prove additional privacy to the southern neighbour. Details of the proposed landscaping were provided addressing Council's original concern with a lack of detail. 9. In terms of streetscape character, I do not consider the design of the boarding house to be out of character with development in the street, particularly that of more recent construction and which could be undertaken under the relevant planning controls. I also agree that all amenity considerations have been reasonably resolved. 10. I also concur with the experts' assessment that the visual impact is that the boarding house has a 2 storey domestic appearance when viewed from the street and would therefore not be out of character with the form of residential development existing or permissible in Scott Crescent. 11. I note that the application can not be refused on the grounds of density or scale where compliance is achieved with the FSR, as is the case with this application. 12. On the basis of the information before me, I accept the expert advice that no amenity issues arise from the modification. Whilst I am sympathetic to the plight and circumstances of Mrs O'Brien, the development complies with relevant amenity considerations in terms of overshadowing and overlooking and the Court can not refuse the application on speculation that issues may arise simply because of the use. 13. The SEPP clearly encourages boarding houses in low density areas when their design is not out of character with other dwellings in the area and in fact a 10 room boarding home is small relative to most boarding house applications that come before the Court. 14. Whilst I accept that there will be more occupants than may be expected in a similar sized dwelling house this is not a relevant consideration under the SEPP. It is also not the case that the number of cars accessing the site could automatically be assumed to exceed those which might be associated with a large family dwelling given only 4 car spaces are provided. 15. Whilst the residents may argue the use of the site is out of character with and not desired in Scott Crescent, the use is permissible, and the test is not whether the use is out of character only whether the design is. In this instance the design is typical of a large dwelling house, the scale and bulk of which could reasonably be expected in the street and the zone. Other issues raised by objectors 1. In terms of access to commercial facilities such as shops and services, it is noted that a number of bus stops are in relatively close proximity and the Chatswood Town Centre and train station are within 2km. Furthermore, residents of the boarding house will have access to the same facilities as are available to all residents of Scott Crescent and the development meets the SEPP requirements in terms of accessing such facilities. 2. Although not required by the SEPP, the applicant has modified the design to try and respond to the key concerns of neighbours in terms of provision of parking, design of the development and internal amenity for residents. 3. The Council also proposes conditions of consent to ensure any excavation does not adversely impact on adjoining properties and requiring a fire safety schedule addressing fire safety measures. Conclusion 1. Ultimately, and notwithstanding the number of resident concerns whether unfounded or otherwise, there are no substantive grounds on which the Court can refuse consent to this application. It complies with all of the required development standards of the SEPP and in fact goes beyond the requirements in terms of the amount of parking provided and the proposed form of management. It is below the maximum permissible height under the LEP and within the maximum FSR. 2. The applicant argued that the amended design and proposed conditions of consent will ensure neighbours will ultimately see the development as different by name but not by character or useage to other dwellings in Scott Crescent and this must satisfy the public interest test. 3. Whether or not this is the case, and notwithstanding resident opposition to the proposed development, regard must be had by the Court to the provisions of the SEPP and the basis on which consent can not be refused. In doing so, I find no statutory or planning basis to refuse the application. Whilst there may be more ideal locations for such a use, that is not for this Court to consider. In terms of the subject application, it appears to me to be of a form and nature contemplated by the Affordable Rental Housing SEPP for low density residential areas. 4. In my view, the relevant objections raised by neighbours regarding the proposal have been considered by the parties and are appropriately addressed by the amendments made to the proposal to the extent that the relevant planning instruments require. 5. I agree with Mr White that there is only so much a consent authority can do to effect modifications to the proposal and the amended design adequately addresses those objector concerns that can reasonably be addressed. 6. In this regard, I accept that the amendments to the proposal have addressed Council's original contentions of concern in relation to the proposal and I am also satisfied that the proposal is consistent with the objectives of the SEPP and with the LEP and DCP to the extent that these instruments apply. 7. In considering the amended plans and documents and agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and appropriate to grant consent to the proposal, having regard to the whole of the circumstances. Orders 1. The orders of the Court are: 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. ________________ Jenny Smithson Acting Commissioner 160842.16 - Annexure A (112 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: 08 July 2016