Duong v Wollongong City Council [2018] NSWLEC 1606

Land and Environment Court New South Wales

Medium Neutral Citation: Duong v Wollongong City Council [2018] NSWLEC 1606 Hearing dates: 7 November 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application No DA2017/412 for the construction of a three storey boarding house with attic and basement car parking at Lot 10 DP 1096643, known as 4 Bourke Street, Fairy Meadow, subject to the conditions set out in Annexure A. (3) Exhibits 2, 4, 5 and 7 are returned. Catchwords: APPEAL – development application – boarding house – resident objections – whether compatible with character of local area Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Wollongong Local Environmental Plan 2009 Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Hong Duong (First Applicant) Ha Pham (Second Applicant) Wollongong City Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicants) J Reilly, Wollongong City Council (Respondent) File Number(s): 2018/60946 Publication restriction: No

Judgment 1. COMMISSIONER: Immediately to the east of Fairy Meadow train station is a relatively small residential area bounded by the railway line to the west, Elliotts Road to the north, an industrial precinct to the south, and a university campus and sporting fields to the east. The area forms the southern portion of a larger area zoned R3 Medium Density Residential and comprises a range of dwelling types, from single storey dwellings to residential flat buildings. Within that area, at 4 Bourke Street, Fairy Meadow, Hong Duong and Ha Pham ("the applicants") seek development consent to demolish a single dwelling and construct a boarding house. On 19 December 2017, Wollongong City Council ("the Council"), through its Independent Hearing and Assessment Panel, refused the applicants' development application seeking the same. The applicants appeal against the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). 2. The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 ("LEC Act"), which commenced with a site view on 9 August 2018. The parties were unable to reach an agreement at or following the conciliation, but agreed to me disposing of the proceedings following a later hearing, pursuant to s 34(4)(b)(i) of the LEC Act. 3. In the period following the conciliation and prior to the hearing, the applicants sought and obtained leave to amend their development application in accordance with amended plans. The amended application is for a three storey boarding house with an attic within a 25deg pitched roof, together with basement car parking accommodating 16 car spaces and 6 motorbike spaces. The boarding house contains 29 boarding rooms, with 4 of those rooms located at the ground floor and 3 located within the attic. The attic rooms have small dormer windows. The ground floor also comprises the manager's unit, reception area, bicycle storage area, communal space and a communal terrace. As a result of the amendment to the development application, the visible bulk of the proposed building has reduced as parking that previously occupied the ground level is now underground. 4. The amended development application results in a proposed development that addresses the concerns initially raised in the proceedings by the Council through its Statement of Facts and Contentions. As a result, the Council now agrees to development consent being granted, subject to appropriate conditions of development consent, including a condition requiring compliance with a Plan of Management. 5. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. 6. For the reasons set out below, I have determined that it is appropriate to grant development consent. A boarding house is permissible in the zone, and the bulk, height and scale of the proposed built form meets the requirements of the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH"). I am also satisfied that the development is compatible with the character of the local area, and that there are no unacceptable privacy impacts.