Land and Environment Court New South Wales Medium Neutral Citation: Sofia Karahalios v Canterbury Bankstown City Council [2017] NSWLEC 1189 Hearing dates: 14 December 2016 Date of orders: 04 April 2017 Decision date: 04 April 2017 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is dismissed. 2. Development consent to DA 862/2015 is refused consent. 3. The exhibits are returned. Catchwords: APPEAL – Development application - conversion of dwelling to boarding house under State Environmental Planning Policy (Affordable Rental Housing ) 2009 (SEPP ARH) – land area less than minimum lot size for boarding houses under the Bankstown Local Environmental Plan 2015 (LEP) - inconsistency between the SEPP and BLEP 2015 Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing ) 2009 Bankstown Local Environmental Plan 2015 Bankstown Development Control Plan 2015 –Part B1 Cases Cited: Goldin and Another v Minister for Transport [2002] NSWLEC 75 Hastings Point Progress Association v Tweed Shire Council and Anor [2009] NSWCA 285 Hastings Point Progress Association v Rosemount Estates Pty Ltd 168 LGERA 99 Dem (Aust) Pty Ltd V Pittwater Council (2004) 136 LGERA 187 Wehbe v Pittwater Council (2007)156 LGERA 446 Moskovich v Waverley Council [2016]NSWLEC 1015 446 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408 Category: Principal judgment Parties: Sofia Karahalios (Applicant) Bankstown City Council (Respondent) Representation: Counsel: Joshua Palmer (solicitor) (Applicant) Mark Bonanno (solicitor) (Respondent ) Solicitors: Pikes & Verekers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/151901 Publication restriction: No Judgment 1. Sophia Karahalios, (the Applicant), seeks approval under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP- ARH) to convert her dwelling house at 326 Marion Street, Condell Park (the Site) to a boarding house. 2. As Canterbury Bankstown Council has refused its consent to her development application (DA 865/2015) for that purpose the applicant has appealed the DA (in an amended form) to the Court. The amendments seek to address the Council's grounds of refusal. They are explained in the Supplementary Statement of Environmental Effects dated 5 September 2016 and the amended plans (Exhibits D and E) and discussed in the expert town planning evidence provided by Garry Chapman (Applicant) and Ms Kavanagh (Council). The proposal 1. Generally speaking, the amended proposal comprises internal alterations to the layout of the existing building to provide nine (9) studio style rooms across the lower, ground and first floors, and three (3) basement storage rooms on the lower ground floor. All but one will be self-contained with a kitchenette and bathroom and there are two communal rooms, and a laundry. The communal room at the north west of the ground floor level will receive three (3) hours of solar access at mid-winter thereby meeting the requirement in cl 29 (2)(c) of the SEPP – ARH. There will be a five (5) x single rooms and four (4) x two (2) person rooms. The rooms will range in size from 12.62m2 to 23.86m2 thereby meeting the requirement of cl 29 (f) of the SEPP – ARH. 2. The lower ground floor plan shows the sealing off of access to the sub floor rooms and a notation indicating the removal of bathroom fittings and the existing windows in eastern elevation of the building. The changes to the sub floor area were responsive to the Council's claim that these spaces constituted habitable rooms and meant that the boarding house was capable of accommodating more than the 13 lodgers. This is relevant because the application does not provide for a live-in manager, and provided the development is not capable of accommodating more than 13 lodgers there is no need for a boarding house manager to reside on the premises under: cl 30 (1) (e) of SEPP – ARH. 3. Vehicular access and pedestrian access to the boarding house is located on the ground floor of the development via the existing circular driveway off Marion Street. Three car parking spaces are provided onsite. Two bicycle parking spaces will be provided on the upper ground floor. 4. A 1.5 high privacy screen is to be installed on the eastern and western elevation of the communal terrace. At the first floor the windows will have a sill height of 1.5m. 5. The amended application is supported by a plan of management (POM) (Exhibit C). The POM appoints an agent/caretaker to be responsible for the operation and administration of the boarding house during business hours between 9am to 6pm, Monday to Friday. This person will also deal with any complaints concerning the operation or management of the premises during business hours and be required to respond to any such complaint within 24 hours. An after –hours phone number is also to be provided, with such phone number being available to the particular objectors in this case. Under the terms of the POM the manager will select the tenants and provide each lodger with the House Rules, and an information sheet about the premises, as well as a Note stating that "…there are residential dwellings adjoining the property and that boarders need to take the neighbour's interest into account when leaving and entering". Background 1. The Site is a rectangular shape and located on the southern side of Marion Street at the intersection of Marion and Saltash Streets. It is within the R2 Low - Density Residential zone under the Bankstown Local Environmental Plan 2015 (BLEP) and has a land area of 552.8m2. The width of the lot at the front building line is 15.25 m. 2. Due to the fall of the Site from the northern boundary to the southern boundary the existing dwelling appears as a two storey brick residence from Marion Street, and a three storey development from the rear. 3. The dwelling has been and is presently being used as boarding house. 4. There is no parking permitted in front of the Site on Marion Street. The "no parking" restriction extends for a distance of 200m east and west along the street frontage from where the Site is located. 5. The Site is within an established low density residential environment characterised by single dwellings. The adjoining sites to the east and west appear as two storey dwellings when viewed from Marion Street and three storey dwellings when viewed from the rear. Development to the south of the Site on Allision Avenue is also two storey dwellings. Development on the opposite, northern side of Marion Street includes single storey and two storey singe dwellings. 6. A boarding house is a permissible use with consent, in the R2 Low - Density Residential zone under the BLEP. However the BLEP contains particular development standards for such development. 7. In this case, cl 4.1B (2) of BLEP is relevant. The clause specifies a land size of 1200 m² with a minimum frontage of 20 m for the development of a boarding house within the R2 Low - Density Residential zone. 8. The parties accept that the Site fails to meet both these development standards under the BLEP. Contentions 1. The application of the minimum lot size provision in cl 4.1 B (2) of BLEP in my assessment of the development application under s79C Environmental Planning and Assessment Act 1979 (EPA &Act) is a central issue in the appeal. 2. The Council contends that the proposed development is not permissible on the Site because the land area and width of the lot are below the minimum areas required by the development standard in cl 4.1B (2). It also contends that the Court will find, after a consideration of the Applicant's written request to justify the contravention of the development standard pursuant to cl 4.6 of the BLEP, that the written request has does not adequately address the matters required to be demonstrated by subclause (3), as required by subclause (4) (a) (i), and that the development as proposed will not be in the public interest. Furthermore, the development is not consistent with the objectives of cl 4.1 B (2) of BLEP and the objectives for development within the zone in which the development is to be carried out: subclause (4) (a) (ii). 3. The Applicant contends that the SEPP covers the field. On that basis cl 4.1B (2) of the BLEP is inconsistent with the SEPP and, by operation of cl 8 the State Policy prevails to the extent of any inconsistency with the environmental planning instrument. In the alternative, the Applicant relies on its cl4.6 written request lodged and invites the Court to find that the development standard can be contravened in this instance to allow for the approval of the DA. Questions for determination 1. Whether there is any inconsistency between the State Policy and cl 4.1B (2) of the BLEP? 2. In the event that there is no inconsistency and cl4.1B (2) applies, whether the Applicant's cl4.6 written request to contravene the development standard in cl 4.1B (2) of BLEP is acceptable? 3. Alternatively, if the SEPP ARH prevails (and cl 4.1B (2) is not relevant), whether the development should be otherwise approved? The s34 conference and the objectors' evidence 1. The proceedings, which were commenced under s 97 (1) of the Environmental Planning and Assessment Act 1979 were initially the subject of a conciliation conference convened under s34 of the Land and Environment Court Act 1979 (the Court Act) and I was the presiding Commissioner. At the conference, Mrs Saltaro, who lives next door to the Site, and is an objector to the application, was invited by the parties to express her concerns about the boarding house development. She did this from her rear patio so that the parties and the Court could appreciate the proximity of her dwelling and its main outdoor living area to the rooms and outdoor areas of the proposed boarding house. 2. Speaking on behalf of her family Mrs Saltaro said that the amenity impacts that she and her family had experienced since the unauthorised use of the dwelling as a boarding house had been unbearable. Despite erecting a 1.8m high boundary fence on her western boundary to help protect her residential amenity Mrs Saltaro said that her family had continued to be subjected to verbal abuse, yelling, swearing and loud noise from the lodgers and their guests using the rear yard and the outdoor patios at the rear of the Applicant's property. She also complained about several cars being parked in the circular driveway of the boarding house and the coming and going of people and cars at all hours of the night and day. On at least one occasion the police needed to be called to deal with the antisocial behaviour of people associated with the neighbouring boarding house. For those reasons, Mrs Saltaro said, that she feared for her own safety and that of her family and grandchildren who regularly visit her home. In fact, Mrs Saltaro indicated that if the boarding house use was approved then she would need to move away as she could not tolerate the illegal parking, abusive behaviour and noise from the boarding house lodgers and their guests. 3. Mr Warren, who resides with his wife opposite the Site at 293 Marion Street, also opposes the conversion of the existing dwelling into a boarding house. He agreed with his neighbour's evidence and confirmed that when the property was used as a boarding house the occupants regularly parked cars anywhere on the Site and driveway and without regard to road signage, residential driveways and footpaths. Mr Warren told me that for a time a person whom he believed was associated with the boarding house had parked a very large truck for an extended period across his residential driveway. He also complained about unacceptable anti-social behaviour and noise from the occupants of the boarding house in what he described as an otherwise quiet residential neighbourhood. Based on past experience Mr Warren said that if approved the boarding house needs an onsite manager to control the occupants' behaviour and to assist in keeping the appropriate residential amenity within the area. 4. The Applicant's answer to minimising the adverse impacts of the development on the amenity of the area – such as those impacts experienced by the local objectors when the boarding house was operating illegally – is to accept a condition of consent requiring that the boarding house be operated in accordance with the terms of the POM (Exhibit C) and that a privacy screen be required on the ends of the rear balcony. The Council rejected these solutions and submitted that the likely adverse impacts of the boarding house use were directly related to inadequate land area and frontage of the Site which are approximately half that required by the development standard in cl4.1B (2) of the BLEP. For that reason alone the s34 conference was incapable of resolution by agreement so it was terminated and the parties asked me to proceed to determine the issues between them after a further hearing in accordance with s34 (4) (b)(I) of the Court Act. Quite sensibly, they also agreed that the evidence taken during the conciliation conference, including the objectors' evidence and my observations at the view, was evidence for the purposes of the hearing. 5. Consequently, the hearing proceeded in Court without the need for a further site visit; although some of the objectors elected to attend and reiterate their concerns to me. SEPP ARH 1. While there are certain standards within the SEPP ARH that cannot be used to refuse the application, for example those matters listed in cl29, the State Policy is not a rubber stamp for the development of a boarding house on all land within the R2 Low-Density Residential zone without a proper assessment of the provisions of an environmental planning instrument that is not inconsistent with the SEPP ARH. It is also the case that the Court, in appropriate circumstances, may determine on the particular facts that the development applied for under the SEPP ARH is unsuitable for the site having regard to matters such as the impacts of the proposed use, the public interest or because an approval of the use is likely to set an unacceptable precedent in a local government area. 2. Clause 8 of the SEPP clearly articulates what happens in the event of an inconsistency. It states: "If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of the Policy, this policy prevails to the extent of the inconsistency". Minimum lot sizes and special provisions for certain dwellings 1. In this case, as outlined earlier the Council contends that the development standard in cl4.1B (2) of the BLEP precludes this development because the Applicant's cl4.6 written request seeking to justify the contravention of the development standard does not adequately address the matters required to be demonstrated by subclause (3). 2. The standard requires a land size of 1200 m² with the minimum frontage of 20 m for the development of a boarding house within the R2 Low - Density Residential zone and the Site falls well short of the minimum requirement by nearly half. In that circumstance subclause (e) provides that if the existing lot is inadequate in terms of its area or width – the clause mandates the consolidation of 2 or more lots and this has not occurred. Clause 4.1 B is set out below: 4.1B Minimum lot sizes and special provisions for certain dwellings (1) The objectives of this clause are as follows: (a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to ensure that multi dwelling housing and boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development, (c) to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas, (d) to minimise any likely adverse impact of the development on the amenity of the area, (e) where an existing lot is inadequate in terms of its area or width-to require the consolidation of 2 or more lots. (2) Despite any other provision of this Plan, development consent must not be granted to development on a lot in a zone shown in Column 2 of the table to this clause for a purpose shown in Column 1 of the table opposite that zone unless: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the table, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that purpose and shown opposite in Column 4 of the table. (3) Despite subclause (2), development consent must not be granted for a residential flat building on land in Zone R4 High Density Residential at 6-22 Church Road, 1 Breasley Place and 8A Petty Street, Yagoona unless the lot has an area of at least 1,700 square metres, and the lot is at least 40 metres wide at the front building line. (4) Despite subclause (2), development consent must not be granted to development for the purpose of multi dwelling housing and boarding houses on land identified as "Area 2" on the Special Provisions Map. (5) Despite subclause (2), development consent must not be granted to development for the purpose of multi dwelling housing on land in Zone R2 Low Density Residential unless the site area per dwelling (excluding the area of access handles or rights of way for access) is at least 300 square metres. (6) Despite subclause (5), development consent must not be granted to development for the purpose of multi dwelling housing on land at 81-83 and 105 Wattle Street, Punchbowl unless the site area per dwelling (excluding the area of access handles or rights of way for access) is at least 250 square metres. 1. The Applicant simply submits that cl8 intends that the SEPP covers the field and that the BLEP provisions cannot be used to fill in the void in order to justify the refusal of the development of a boarding house permitted under the Policy. Consideration - The meaning of the word "inconsistency" and it application in this case 1. Adopting the plain dictionary meaning of the word "inconsistency" in cl 8 the parties agree that if a planning provision is inconsistent with a provision in the SEPP ARH then the provision in the Policy prevails. " if there is a situation where there is a can do under the SEPP –SL and a can't do under the local environmental plan then the SEPP –SL prevails" : Dem (Aust) Pty Ltd V Pittwater Council (2004) 136 LGERA 187. 2. That said the SEPP ARH is not a code. The SEPP ARH does not purport to impose an exclusive code with respect to considerations relevant to the determination of the development application. Nor could it have done so given the terms of s79 C (1) (b) – (e) of the EPA Act. The section invites a consideration of the matters listed in (b) – (e) including the suitability of the site for the development. 3. The problem arises when there are two sets of planning instruments the provisions of which, in any given case, actually or potentially overlap and are inconsistent. In this case however, the SEPP ARH does not contain any specific provision in respect of standards which cannot be used for the refusal of consent relating to minimum land area for boarding houses: cl29. The clause refers to floor space area, building height, solar access etc but does not refer to land area or frontage width. In short, there is no specific provision in the SEPP ARH which is inconsistent with cl4.1B (2) of the BLEP and cl8 is not engaged. 4. For that reason, I cannot accept the Applicant's submission that the SEPP ARH covers the field. Or the submission that the general aim in cl 3 "...to provide consistent planning regime for the provision of affordable housing" the SEPP ARH is offended by the operation of cl 4.1B (2) in circumstances where the SEPP ARH otherwise invites the consent authority to consider the individual site and does not necessarily mandate approval in each case. For example, where relevant a consideration as to whether the design of the development is compatible with the character of the local area is required under cl30A of the SEPP ARH. This consideration is different to a consideration of the lot size and frontage width mandated by the development standard by cl4.1B (2). It is conceivable that a consent authority might decide that a boarding house on a compliant lot size might still falls fowl of the character of the area test in cl 30A of the SEPP ARH. 5. In this instance the Council has recently mandated (through the provisions of the 2015 BLEP and DCP) certain land area requirements and special provisions for the location of boarding houses in the R2 Low Density Residential zone in order to minimise any likely adverse impact of such development on the amenity of the area. Moreover, the recently gazetted development standards offer a solution where the land area is undersized namely; consolidation of two lots to achieve the minimum land area: cl 4.1B (1) (e) of BLEP or where appropriate opportunity to contravene the development standard by the lodgement of a written cl4.6 variation to compliance with the standard. 6. In acknowledging that existing lots may be inadequate in terms of land area or width the Council submits that the development standard in cl 4.1B (2) of BLEP1 B (2) does not frustrate the development of a boarding house being located on R2 Low Density Residential zone and offend the aims of the SEPP ARH but rather seeks to ensure that the lot size and site width in this LGA are adequate to minimise any likely adverse impacts of such a new use on the amenity of the low density residential area. 7. In Hastings Point Progress Association v Tweed Shire Council [2009] NSWCA 285 the Court of Appeal considered the meaning of the word 'inconsistency' in respect of State Environmental Planning Policy Seniors Living 2004 NSW and the Tweed local Environmental Plan 2000. The majority held that the question of inconsistency invites a consideration of whether the two clauses are incapable of concurrent operation and if so inconsistency is said to arise between them. The inconsistency clause and Policy under review in the Hastings case is in different terms to the SEPP ARH and cl8 under review in this case and therefore the Court of Appeal decision in my opinion can be distinguished on its facts. 8. The Applicant also refers the Court to s36 of the EPA Act which deals with the general presumption that a State Planning Policy prevails over a local environmental plan. Yet, I do not think this clause assists the Applicant's case because the general presumption is displaced in this case by the specific provision in cl8 which deals the issue of inconsistency for the SEPP ARH. Finding 1. In this instance the SEPP is silent in respect of the land size and frontage width for the development of a boarding house on this Site. The LEP provides that a boarding house may only be erected in the zone on a lot with an area of 1200 m2 and a 20 m frontage. The application falls well short of that. The LEP is recent and it can be accepted sets out the Council's current views (after public consultation in respect of the appropriate land size and location of boarding houses within the R2 zone). Unlike the Seniors Living SEPP there is no provision such as clause 17 which permits the development to which it refers "despite the provisions of any other Environmental Planning Instrument if the development is carried out in accordance with this policy". In this instance cl 8 states that the SEPP prevails only to the extent of the inconsistency with the EPI. 2. I accept the Council's position that cl 29 of the SEPP has a number of standards which may not be used by a consent authority to refuse consent but none relate to minimum land area or frontage width. Where the SEPP is silent in respect of land area and width I do not consider that it is appropriate to go to the overall objectives of the SEPP ARH in order to find a can do to justify an approval of this DA on a Site which is half the area and width of that allowed under cl 4.1B (2) of the BLEP. 3. The minimum lot provisions contained within the BLEP 2015 should be dealt with as a separate matter as the SEPP ARH is silent in respect to minimum lot sizes and frontage widths dimensions for boarding houses. Objective (e) of cl 4.1B (2) of the BLEP 2015 requires that where a site is inadequate in terms of width and area then there should be a consolidation of two or more lots. This has not occurred. The standard sets minimum lot width and size and there is an expectation that development of this nature will not occur in this zone unless this is met or contravention is allowed following a cl 4.6 variation. 4. For the reasons stated I accept the Council's submissions and find no inconsistency between the SEPP and the cl 4.1B (2). Clause 4.6 written request 1. The Applicant's cl 4.6 variation to the development standard in cl4.1 B (2) of the BLEP 2015 is located in (Exhibit 2). The Applicant in making its written request to contravene the standard in cl4.1 B (2) refers to the matters discussed in Wehbe v Pittwater Council (2007) 156 LGERA 446; Four 2Five Pty Ltd v Ashfield Council [2015] NSWCA and Moskovich v Waverley Council [2016] NSWLEC 1015 . 2. The written request submitted to the consent authority refers to the objectives of cl 4.6 (a) and (b) and it is submitted that variation to the site area and width in the standard is consistent with objective (a) of cl4.6 in that flexibility should be applied in this case because the boarding house is a permissible land use under the SEPP ARH and such development is consistent with the aim of the Policy in cl 3 "to provide a consistent planning regime for the provision of affordable rental housing". Additionally, the written request states that the change of use of the existing building to a boarding house within an accessible area results in the provision of affordable housing which better achieves the environmental outcome that is consistent with the planning controls contained in the SEPP ARH and in Section 10 - Boarding houses - Bankstown Development Control Plan 2015 –Part B1 March 2015 (amended July 2016) (DCP). 3. The written request for variation then sets out the relevant objectives of the development standard in cl 4.1 B (1). It states, despite the non-compliance that the proposed change of use to the boarding house meets the relevant objectives of the development standard in the clause. Objective (a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas 1. In response to Objective (a) the development proposal is said to present no change to the existing form and scale of the building on the site. No change to building setback, open space, landscaping or driveway access and vehicle manoeuvring. The proposed boarding house meets the open space landscape area and parking controls contained in the SEPP ARH and this confirms the site area and width is sufficient size for the proposed boarding house. Thereby Objective (a) is achieved. Objective (b) to ensure that multi dwelling housing and boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development, 1. As there is only a change of use to accommodate the boarding house the variation states that the existing form and scale of the building, driveway access and on-site parking maintain the low-density scale and character of the existing built form on the site. Thereby Objective (b) is achieved. Objective (d) to minimise any likely adverse impact of the development on the amenity of the area, 1. The written request states that the internal alterations and conversion of the building to accommodate a boarding house will not result in adverse amenity impacts. This is because there will be no change to the form or scale of the building or change to the shadow cast by the building. Furthermore, the proposed rooms of the lower ground floor level are screened by the existing side boundary fence, room 2 at the ground floor retains the existing window opening, rooms 5 and 7 at the first floor have side facing high light windows to maximise access while mitigating overlooking. The proposal retains the existing terrace/ balconies areas with additional privacy screens on the upper ground floor balcony and open space at the rear yard ensuring there is no significant increase in privacy impacts to the adjoining neighbours. Thereby, Objective (d) is achieved. Objective (e) where an existing lot is inadequate in terms of its area or width-to require the consolidation of 2 or more lots. 1. The subject site adjoins existing dwelling houses at 324 and 328 Marion Street and given that the proposal is for a change of use under the planning controls for a boarding house under the SEPP ARH, it is unnecessary to require consolidation with the adjoining allotments to meet lot size and width control. Compliance with the development standard is unreasonable and unnecessary in this particular case 1. The Applicant's written request addresses cl4.6 (3) (a) of the BLEP. It states that compliance with the development standard cl 4.1B (2) is unreasonable and unnecessary firstly because the application is made under SEPP ARH and the State Policy takes precedent. Additionally, it is asserted that the proposed boarding house meets the objectives of cl 4.1B (1) and the relevant objectives of the R2 Low Density Residential zone even though it is does not strictly comply with the land area and frontage requirements under the BLEP. Compliance with the standard is said to be both unreasonable and unnecessary because - the develop proposal is for a change in use from an existing dwelling house to a boarding house with no change to the built form, landscape area or driveway area thereby maintaining a residential character on the subject site which is compatible with the development in the locality. Furthermore, the requirement to comply with the lot size would prevent a boarding house on the site and this is inconsistent with the relevant objectives of the R2 Low Density Residential zone including the objective to provide for the housing needs of the community within a low density residential environment. In this case the proposal provides housing choice of affordable housing within a low-density environment and to maintain the building form and low-density character and retains a landscape area. 2. The Applicant contends in the written request that to achieve compliance with the development standard would require consolidation with the adjoining property 324 and 328 Marion Street. Applying a floor space ratio (FSR) of 0.5:1 the development form on a consolidated site would most likely be 2 to 3 buildings and the amenity impacts would be the same if not more than with those resulting from the proposed single boarding house on the existing Lot. 3. The development proposal meets the planning controls including landscape area, open space, on-site parking, room size, motorcycle and bicycle parking contained in Division 3 of the SEPP ARH and Section 10 Boarding houses - Bankstown DCP thereby confirming that the Site area and width can accommodate the proposed boarding house despite non-compliance with the development standard. It states that the development proposal maintains existing built form and scale during the low-density residential character of the locality is maintained. 4. Furthermore, the proposal maintains the existing driveway access and on-site car parking (two spaces) ensuring vehicles can enter and exit the site in forward direction and the proposal meets the parking control contained in part 29 (2)(e) of the SEPP ARN. 5. The proposal maintains the existing built form and scale ensuring the proposal will not generate additional overshadowing to adjoining properties and potential privacy impacts and any overlooking. The retention of the existing open space, introduction of high light windows at the first floor and the screening the balconies together with the existing side setbacks to the adjoining properties is said to ensure appropriate amenity is maintained. 6. The development proposal presents no change to the landscape area – surrounding the existing built form. Are their sufficient environmental planning grounds to justify contravening the development standard? 1. In accord with the requirement under cl4.6 (3)(b) the Applicant maintains that there are sufficient environmental grounds to justify contravening the development standard in this case because the relevant objectives of the standard and zone are achieved despite the non-compliance. The proposal presents no change to the form and scale of the development on the subject site and the proposal meets the controls in the SEPP ARH for a boarding house development and this demonstrates that the site can accommodate the proposed boarding house with adequate room size, open space residential amenity, on-site car parking despite its land area and width. 2. The character of the locality is two and three storey building forms with pitched roofs, driveways and garage parking within the frontage of the site. The existing built form and scale of the development is maintained and thereby compatible with the existing low-density residential character of the locality. Moreover, the development provides affordable housing choices and an orderly and economic development of the land. The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and objectives of the development within the zone 1. The written request states that the change of use for a boarding house will not affect the public interest because there will be no change to the built form externally. The boarding house is consistent with the objectives of development standard cl 4.1B (1) of the LEP and the relevant objectives of the R2 low-density residential zone and thereby does not undermine the relevant planning controls. Furthermore, the proposed boarding house is in the public interest because it provides for affordable housing choices in an accessible area with no change to the built form or scale of the development on the Site. Analysis of the clause 4.6 variation 1. The Applicant's written request in my assessment does not adequately address the matters required to be demonstrated by subclause 3 which is a requirement under cl 4.64 (ii) (a) (i). In this case I am not satisfied on the evidence that the proposed development will be in the public interest because in my assessment it is not consistent with the following two relevant objectives of the development standard in cl 4.1 B (1) namely: " to minimise any likely adverse impact of the development on the amenity of the area" and; to allow for development of low density housing that has regard to local amenity" 1. While the Applicant has plainly addressed the built form and the location of windows, screens on balconies, and the internal amenity for the residents of the boarding house the written request has not adequately addressed to my satisfaction why compliance with the development standard is unreasonable unnecessary in the circumstance of the case and not provided sufficient environment planning grounds to justify contravening development standard. 2. Following public consultation the Council has mandated a minimum lot size for boarding houses in the R2 low-density residential zone. The development Site is approximately half the size of the minimum land area and has a front building line some 5m less than the requirement in cl4.1B (2). As was apparent at the site view the adjoining residential family homes on the eastern and western side boundaries of the site are in close proximity to the proposed boarding house. There is very limited separation between the existing outdoor areas of each dwelling and for that reason I accept the western neighbours' evidence about likely unacceptable noise impacting on her residential amenity as has been her experience in the past when the Site was being used as boarding house. I am not satisfied that the application has adequately addressed how these likely unacceptable amenity impacts will be controlled into the future if the use is approved. The POM is very basic in its terms and the provision of an after-hours number to an off-site manager to deal with the amenity concerns complained about by all of the objectors including illegal parking, unacceptable noise and vehicle movement day and night, and anti-social behaviour is not a satisfactory solution in my assessment based on the objectors' evidence about past impacts. Public interest and unacceptable precedent 1. However, if I am incorrect in my assessment of the cl 4.6 variation I am otherwise satisfied on the evidence of the objectors as articulated in the written submissions and their oral evidence that an approval of this application is likely to generate unacceptable amenity impacts into the future and therefore is not in the public interest. The past adverse impacts of the use are a relevant consideration in this instance under s79C of the EPA Act: Jonah Pty Limited v Pittwater Council (2006) 144 LGERA. These amenity impacts have not been satisfactorily addressed by any of the conditions proposed by the Applicant including the POM. I am also of the opinion that if this objectionable application is approved it is likely to lead to other developments of a similar character and this will set an undesirable precedent in the LGA: Goldin and Another v Minister for Transport [2002] NSWLEC 75 at [28]. As was apparent at the view there are a number of other properties below the minimum lot size in the R2 zone and I accept the Council's concern about unacceptable precedent if the Court were to allow this use on an undersized land area in breach of cl4.1B (2) without proper justification which is the case at hand. I agree with the Council that an approval of this consent will operate as a precedent and undermine the Council's strategic planning which seeks to accommodate boarding houses on larger lots in order to control noise and other such impacts. The unacceptable amenity impacts complained about by the objectors are essentially generated by the size of the large dwelling on this lot in close proximity to adjoining residential development on a main street without parking. 2. For the reasons stated the Court orders are: 1. The appeal is dismissed. 2. Development consent to DA 862/2015 is refused consent. 3. The exhibits are returned. ________________ Susan Dixon Commissioner of the Court Amendments 13 April 2017 - Date of orders changed to 4 April 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: 13 April 2017