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: Contention 1 – floor space ratio 1. The experts agree that the amended plans result in a reduction in the proposed residential gross floor area of 15.82 m² achieving a total residential accommodation FSR of 3.56:1 and a total maximum FSR of 4.5:1. This outcome remains consistent with the bonus FSR made available by the operation of the AHSEPP. 2. Furthermore, the experts agree that with the resolution of the design, management and operational concerns identified in contentions 2 and 3, of the SOFC, the resulting allocation of floor space between uses that are permitted with the development consent on the site is acceptable. Contention 2 – amenity 1. The experts agree that the contentions about the internal amenity of the boarding house rooms and serviced apartments and the potential for overlooking of any future development to the north (should redevelopment occur) are now satisfactorily addressed by the amended application. 2. The revised plans provide for the inclusion of planters and privacy screens where necessary and offer careful window placement to ensure privacy between the rooms as well as the common areas. In particular, the experts agree that the adjustment of the windows to rooms 11 and 12 of the boarding house on level 2 protect privacy and minimise opportunities for inter-looking between the rooms and provide an appropriate privacy screen next to the relocated window for room 12. The amended proposal also includes the provision of external wall mounted privacy screens for rooms 9 and 10 fronting the existing terrace on level 2. There has also been a change to the privacy screen to the boarding house manager's courtyard on level 2 and the provision of a 1000 mm wide 400 mm high raised planter bed along the entire northern boundary of level 2. Beyond the planter bed is the provision of a 1.4 m high privacy screen on the northern boundary on top of the planter bed (1.8 m high overall) on level 2. The proposed glass doors have been changed to a window on the existing north facing wall on level 2 and an 1800 mm high brick privacy wall has been included along the eastern edge of the existing terrace and over balustrading and other balustrading on level 2. 3. According to the experts the relationship of the open space to the boundary on adjoining land is now acceptable. Contention 3 – operational management 1. The Operational Plans of Management for the boarding house and serviced apartment use have been updated by the applicant to adjust the inconsistencies in the original plans prepared. The town planning experts are of the opinion that the updated plans of management provide a sound basis for the management and ongoing operation of the proposed uses to minimise potential adverse impacts upon the residential uses. The plans of management, directional signage and blocking of the access from the commercial lobby that would have potentially provided access to the residential clause in the tower have address the concerns raised by the residents on site and today at the hearing. In conclusion the experts agree that the amendments to the plans and the revised operational plans satisfactorily address the planning concerns raised in the contentions 1, 2 and 3. 2. The parties' traffic experts, Paul Corbett and Robert Varga also believe the amended application satisfactorily addresses the traffic and parking issues... Given the location, small number and size of the apartments and low intensity nature of the serviced apartment the traffic experts agree that a relaxation of the provisions in the Burwood Development Control Plan (BDCP) is justified. 3. A total of 5 car spaces are provided for the serviced apartments and hence there is a shortfall of four car spaces under the BDCP. However, given that the development includes only seven serviced apartments and a small office/reception the experts agree that it is appropriate for the staff parking requirement to be reduced to a single space. The provision of a single staff parking space, as is proposed, would therefore satisfy this requirement under the BDCP .The proposed guest parking provision for spaces equates to a parking rate of 0.57 spaces/apartment. This is greater than the residential parking rate for a studio apartment in the Burwood Town Centre under the BD CP being 0.5 spaces –/apartment, which the experts believe to be a more appropriate rate given that this takes into account the above location factors. The experts agree that the existing on street parking restrictions are (time and ticketed) in the locality and ease of access to available off-street public car parking facilities provided within the Burwood Town Centre (including the public car parking immediately west of the site) will by virtue deter guests from parking on-street, whilst also ensuring that they have alternative options to park private vehicles off -street. The provision of 4 guest parking spaces, as is proposed, is therefore considered acceptable in this instance. 4. Clause 29 (2) (e) of the AHSEPP identifies that the boarding house could not be refused on parking grounds if the minimum of 2 car spaces are provided for boarding rooms and up to 1car space provided for the boarding manager. Only 1 boarding manager space is proposed and hence there is a shortfall of 2 boarding room spaces. However, the Council has agreed to the applicant entering into a Voluntary Planning Agreement to address the 2 space deficiency as is permitted under Council's section 94 Contributions Plan. This effectively resolves this issue. 5. The application proposes to convert an existing visitor car parking space (on ground floor) to a boarding house manager space, which would reduce the overall visitor car parking space. As the visitor space forms part of the development consent for the existing commercial tenancies which are subject to this development application the experts agree that this space need not be maintained for that purpose and therefore accept that the space can be converted into a boarding house manages space. The application proposes motorcycle spaces which in the experts' opinion will operate satisfactorily and will not unduly impede or restrict tenants from parking a motorcycle within either of the spaces proposed. The provision of the 'Reverse Entry Only' signage for the space on Ground Floor, will lessen impacts associated with the deficient space dimensions and ensure that a motorcycle parked within this space does not detrimentally affect the safety and efficiency of the adjacent site across the driveway. The provision of a handrail along the length of the space in the Basement Level 1 will ensure that a motorcycle parked within this space will not affect pedestrian access to the adjacent lift and stairwells (including fire stair). 6. The proposed bicycle parking arrangement on the Mezzanine Level 1 as shown on the amended development drawings comply with the Australian standard 2890. 3 (2015). The traffic experts agree that the access issue associated with parked bicycles has been satisfactorily resolved by the amended application. Objectors' evidence 1. The Court has read the written objections received following notification of the application contained in the Council's bundle of documents marked (Exhibit 1). It has also considered the 2 further written submissions were received at the hearing lodged on behalf the 25 residents of the residential tower. It is clear from that evidence that the residents collectively do not want any change to the use of the existing building. 2. Generally, they are fearful of the type of person that will reside in the boarding house and the serviced apartments and concerned about their families' safety and security. Their concerns about parking and traffic have been addressed by the expert evidence and I do not propose to deal further with those matters. 3. The traffic and town planning experts who gave concurrent evidence at the hearing listened to the oral evidence of the two residents who addressed the Court; Parmanand Madnani and Yi Lui. These objectors reside in the residential tower and spoke on behalf of the other resident objectors at the hearing. After hearing that resident evidence the planning experts said that they accept the amenity or security concerns expressed by these objectors. The town planners said that the Operational Plans of Management which provide for an on-site manager to supervise the boarding house and serviced apartments together with the security measures proposed which effectively lock off the residential lobby from the boarding house entry satisfactorily addresses the safety or security concerns raised by the application. Furthermore, the town planners are satisfied that the boarding house rooms offer appropriate amenity having regard to the provisions of the AHSEPP. The rooms have adequate access to sunlight and ventilation. The proposed uses are permissible within the B4 Mixed Use zone - boarding houses and tourist and visitor facilities such as serviced apartments and back packers are permissible with consent irrespective of the AHSEPP. The amended Operational Plans of Management provided to the Court provide a regime to deal with any complaint in the event of adverse behaviour or incident concerning a resident of the boarding house or serviced apartment. The live-in site manager of the boarding house will be contactable by mobile phone at all times directly or by a message service and in the event of an issue is responsible for taking appropriate action. Any person who occupies the premises will not be required to be removed should they fail to comply with the rules which they will be provided with on arrival. There can be no daily coming and going of tenants from the boarding house use because the minimum stay for the boarding house is 3 months. The maximum stay at the 7 serviced apartments is a maximum of 3 months. 4. There is no evidence to suggest that the electricity, water and drainage infrastructure will not be of sufficient capacity to accommodate the proposed use under this application. In any event, with respect to water there is a section 73 certification required by the conditions of consent (conditions 62). 5. The Court is required to consider the local residents evidence and give it appropriate weight as it is part of the public interest and a relevant consideration under s79C of the EPA Act. In considering the community responses an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity. Evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity. Needless to say, fear or concern without rational justified foundation is not a matter which by itself can be considered as an amenity or social impact: Telstra v Hornsby Shire Council (2006) 146 LGERA 10 at [192 – 195]. 6. While I accept that the residents who gave evidence at the hearing and on-site honestly believe the concerns they expressed they are not supported by the expert evidence before the Court. Nor are they founded on any objective fact. Therefore, I must place little weight on those matters in my overall assessment of the merits of this application. 7. For the reasons outlined I cannot accept that the residents' concerns are in this instance reasonable or rational and a proper basis for a refusal of this application. The Council raises no issue in respect of Owner's consent and supports an approval of the amended application based on the expert evidence. Therefore, it is my considered opinion that a conditional approval of this application is appropriate. Court Orders 1. The appeal is upheld. 2. Development application DA 47/2015 lodged on 24 March 2015 as amended and detailed in the plans marked Exhibit B prepared by CDR Design Pty Ltd for alterations and additions to levels 2 and 3 of the existing building, change of use from approved offices to a boarding house and serviced apartments, provision of two motorcycle spaces at 1 - 3 Elizabeth Street, Burwood is approved subject to the Council's draft conditions in Exhibit G. 3. The exhibits are returned apart from Exhibits 2, A and B. Susan Dixon Commissioner 167119.16 - Annexure A (97.0 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: 27 July 2016