Tasman Serviced Apartments Pty Ltd v Burwood Council [2016] NSWLEC 1310

Land and Environment Court New South Wales

Medium Neutral Citation: Tasman Serviced Apartments Pty Ltd v Burwood Council [2016] NSWLEC 1310 Hearing dates: 25 July 2016 Date of orders: 27 July 2016 Decision date: 27 July 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph 30 Catchwords: APPEAL – Development application - conversion of existing commercial space in a building into a boarding house and serviced apartments – resident objections - amenity impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Burwood Local Environmental Plan 2009 Burwood Development Control Plan Cases Cited: Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; 146 LGERA 10 Category: Principal judgment Parties: Tasman Serviced Apartments Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Stephen Patterson (Applicant) Jennifer Hutton (Respondent)

Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2016/00167119

Ex TemporE Judgment 1. Tasman Serviced Apartments Pty Ltd (Tasman) has appealed the Burwood Council's refusal of its development application (DA 47/20154) for the conversion of existing commercial space in the building at 1- 3 Elizabeth Street, Burwood into a boarding house and serviced apartments. 2. The appeal is made pursuant to section 97 (1) of the Environmental Planning and Assessment Act 1979 (EP & A Act). The primary purpose of the application, according to the applicant's Statement of Environmental Effects prepared by CDR Design Architects and Town Planners dated March 2015 is to make better economic use of the existing office space which has proved extremely difficult to lease since its construction. 3. The site is located at the eastern end of Elizabeth Street in the south east quadrant of the Burwood Town Centre within the B4 Mixed Use zone under the Burwood Local Environmental Plan 2009 (BLEP). The proposed uses are permissible with consent. (A boarding house is a permissible form of residential use under the BLEP and State Environmental Planning Policy (Affordable Rental Housing) 2009 (AHSEPP). A Serviced apartment as a form of commercial use is also a permissible land use on the site pursuant to the BLEP subject to consent). 4. The appeal was the subject of a conciliation conference held under s34 of the Land and Environment Court Act 1979 (the Court Act). During that process the applicant was given leave to amend its application in order to address the Council's contentions. The amendments had the effect of resolving the Council's issues apart from those raised by the local residents. So, the conference was terminated and the parties requested that I determine the matter with a further hearing pursuant to s34 (b) (i). 5. The Council's Statement of Facts and Contentions (Exhibit 2) (SOFC) provides the background to the application and the relevant statutory controls. It records that the building, which was approved by the Council in 2011, is subject to 2 Strata Plans (SP s - 89331 and 89332): * Strata plan (SP 89332) created lots 1 to 4 for retail/ commercial use. * Strata Plan (SP 89331) created the residential tower above the retail/commercial podium comprising 25 residential lots. 1. (The strata plans also include rights of carriageway and rights of access to facilitate the use and access into the basement of the building. Car parking for the commercial podium terraces is within the Basement level 1, while the residential car parking is partly in Basement level 1 and Basement level 2 and 3). 2. The application relates to all of the lots and common property in SP 8933. The proposal is to use level 2 as a boarding house and level 3 as serviced apartments. 3. The application comprises the following works to SP 89332: (a) Basement one – allocation of existing car parking spaces to the serviced apartments (4 residents, 1 manager) and provision of 1 new motorcycle parking space for the boarding house within an area designated as being a right of access variable width DP 1192605 (storage on the strata plan). (b) Ground floor – allocation of 1 existing parking space to the boarding house manager and provision of 1 new motorcycle parking space for the boarding house within an area designated as storage on this strata plan. (c) Mezzanine level 1 – provision of bike stands for 3 bikes for boarding house residents (d) Level 2 – internal alterations to provide 12 boarding rooms (7 double and 5 single bedrooms): 1 manager's room (2 persons) and an outdoor private open space. (e) Level 3 – internal alterations to provide 7 'studio apartments' for use as serviced apartments; lobby and reception areas; an office; and alterations to the exterior of this level by way of additional fenestration and doorways. 1. Following lodgement of the development application on 24 March 2015 it was notified to surrounding residents between 9 and 29 April 2015. In September 2015 further notification was undertaken to all owners within SP 89331 (the residential tower). In response to the notifications a total of 11 submissions were received including two petitions with 14 and 25 submissions objecting. 2. On 23 November 2015 the original application was reported to Burwood Council and recommended for approval subject to conditions. On 23 November 2015 the Council decided to refuse that application. The grounds of refusal as recorded in the Council's notice of determination to the applicant were: (1) Even though the State Environment or Planning Policy (Affordable Rental Housing) 2009 (AHSEPP) takes precedence, the intent of Councils Burwood Local Environmental Plan 2012 (BLEP) proposed the maximum Floor Space Ratio for the residential component is 3:1 and this development exceeds this by having a ratio of 3.2 one-to-one (2) The mixing of the operation short-term leases within the residential building could provide a security concern and a conflict between both users as outlined in the Police Report as well as not being in line with the intent of the BLEP to provide a commercial space close to the Court House. (3) The applicant has not shown enough evidence that they could not lease the space as commercial space suited in the commercial town centre and the vicinity of the Court House. (4) Inadequate parking spaces having been provided pursuant to Clause 29 (2) (e) of the AHSEPP. Two further car spaces are required. 1. The grounds of refusal as outlined form the contentions in the appeal however; they were drafted prior to a consideration of the amended application (Exhibit B). As indicated the parties' planning experts Scott Barwick (the Council's consultant) and Charles Raneri (the applicant's consultant) agree in their joint report (Exhibit C) that the amended application satisfactorily addresses these contentions. The experts also believe that the amended application satisfactorily addresses the residents' planning concerns - as stated in their written objections and articulated onsite during the section 34 conference and later at the Court hearing. In particular, they agree that the revised Operational Plans of Management for each component of the development (Exhibits D and A) "provide a sound basis for the management and ongoing operation of the proposed uses minimising potential adverse impact upon the residential uses (Exhibit C p4 at 1.8). 2. Dealing with each of the Contentions by heading the experts' joint position is as follows: