Land and Environment Court New South Wales Medium Neutral Citation: Gray v Sutherland Shire Council [2016] NSWLEC 1335 Hearing dates: 8 August 2016 Date of orders: 12 August 2016 Decision date: 12 August 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: boarding house Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Gray v Sutherland Shire Council [2016] NSWLEC 64; Gray v Sutherland Shire Council [2015] NSW LEC 1102 Texts Cited: Sutherland Shire Housing Strategy 2012 Category: Principal judgment Parties: Robert Gray (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: Mr J McKee McKees Legal Solutions (Applicant) Ms J Amy Sutherland Shire Council (Respondent) File Number(s): 175456 of 2016 Judgment 1. This matter comes before the Court in response to the decision of Craig J, on 1 June 2016, following an appeal under s 56A of the Land and Environment Court Act 1979 (Gray v Sutherland Shire Council [2016] NSWLEC 64). The appeal overturned the Court's refusal of Development Application No. DA13/0763 (Gray v Sutherland Shire Council [2015] NSW LEC 1102 (the original hearing) for the demolition of two existing dwellings and construction of a two storey boarding house containing 22 rooms at Nos. 58 and 60 Karimbla Road, Miranda (the site). 2. His Honour's Orders were: 1. Appeal upheld. 2. The decision and orders of the Commissioner made on 21 April 2015 are set aside. 3. The proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court. 4. The respondent must pay the appellant's costs of the appeal unless within 14 days from the date of this judgment it files a notice of motion seeking a different order. The remitted hearing 1. The remitted hearing focussed on the social impacts of the development, the associated agreed conditions of consent and Plan of Management (POM). That is because I was satisfied, based on the agreed planning evidence in the original hearing, that there were no planning grounds on which to refuse consent. 2. My concern had been, based on the social planning expert evidence, the addition of further social housing has the potential to add negatively to the existing cumulative impact in the area including a disproportionate number of people in the locality who are socially and financially disadvantaged. The evidence before me was that this would result in detrimental social impacts in the locality and for that reason, I considered the site was not suitable for the proposed development. 3. I accordance with the decision of Craig J, the applicant's proposed condition, through the Boarder Eligibility Requirement so the POM, that would limit occupancy of the boarding house to persons of moderate income or students attending nearby education facilities only is one that can be legally imposed and is for a planning purpose. Those on a "moderate" income would exclude persons in receipt of an income support payment from the Commonwealth Government (other than student support allowances such as Youth Allowance, AusStudy, AB Study) with no boarder to pay greater than 30% of their gross income in rental payments, which subject to CPI increases and other terms in the agreement would equate to a minimum wage of $43,340 applying December 2014 rates. The applicant's submissions 1. Mr McKee, for the applicant submits, having regard to the conclusions reached at [53] and [54] of the original hearing, that the proposal is fully compliant with the standards for boarding houses as set out in Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) and parking is compliant with the provisions of clause 29(2)(e) whereby consent cannot be refused, there are no grounds on which to refuse consent as the social considerations can be adequately addressed through the limitations sought to be imposed on tenants. Those conditions will ensure that the boarding house does not increase the number of persons of very low and low incomes in the area. 2. That limitation would address the concerns of the social planners who agreed that the development ought to be approved subject to the proposed conditions on occupancy which would ensure that only persons within certain income groups are permitted occupancy of the rooms and set minimum and maximum rent levels. 3. The proposed consent conditions are consistent with the decision of Craig J. The council's submissions 1. Ms Amy, for the council, did not oppose the grant of consent subject to imposition of the conditions on occupancy of the rooms, agreeing the development was consistent with the provisions of SEPPARH. Conclusion and findings 1. In accordance with the decision of Craig J, it is possible to impose conditions of consent which restrict the occupancy of boarding rooms within a boarding house provided for under the provisions of SEPPARH to cater only for a particular income level. 2. According to the agreed evidence of the social planners, the proposed income levels would expand options for key workers within the Sutherland Shire, a demand recognised in the council's Sutherland Shire Housing Strategy 2012. They advise based on the proposed income levels that such tenants may include persons in the following sectors: education early child care, health and emergency services, property and real estate, commercial, industrial and retail. 3. In my original decision I took the view that the applicant's conditions to restrict tenancy to only one band of income could not be legally imposed and was contrary to the provisions of SEPPARH. The decision of Craig J addresses this concern and found the condition would be for a valid planning purpose. 4. As the impediment to my granting consent has now been addressed, there is no reason, subject to the imposition of the appropriate consent conditions, that consent should not be granted. 5. I consider that it is appropriate that the consent conditions also reflect the tenancy requirements and have therefore added the wording in the POM as an additional consent condition. 6. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA13/0763 for the demolition of two existing dwellings and construction of a two storey boarding house containing 22 rooms at Nos. 58 and 60 Karimbla Road, Miranda is approved subject to the conditions of consent in Annexure A. 3. The exhibits, other than exhibit A, are returned. _____________________ Sue Morris Commissioner of the Court 175456.2016 (C) Annexure A (416 KB, pdf) 175456.2016 Court Plan of Management (158 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: 12 August 2016