Land and Environment Court New South Wales

• Medium Neutral Citation: Chami v Bankstown City Council [2012] NSWLEC 1120
• Hearing dates: 9 May 2012
• Decision date: 16 May 2012
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is dismissed.

2. Development Application No. 248/2011 is refused.

3. The exhibits are returned.

• Catchwords: DEVELOPMENT APPLICATION: Boarding house, permissibility, equivalence of Residential 2(a) Zone and the named land use zones.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Chami v Bankstown City Council [2011] NSWLEC 1311
• Category: Principal judgment
• Parties: Rabih Chami (Applicant); Bankstown City Council (Respondent)
• Representation: Counsel; Stuart Simington (Solicitor) (Respondent); Rabih Chami (Self-represented) (Applicant); Solicitors; Lindsay Taylor Lawyers (Respondent)
• File Number(s): 10043 of 2012

Judgment

1 COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 248/2011 (the application) by Bankstown City Council (the Council) for the demolition of an existing dwelling and construction of a twelve room boarding house at 78 South Terrace, Bankstown (the site).

2 The key issue between the parties is whether the application is permissible.

3 The parties requested a preliminary finding on the issue of permissibility, on the basis that if the Court finds that the proposal is not permissible, it would not be necessary to go to the evidence regarding the merits of the proposal.

The planning framework

4 The site is within the 2(a) Residential Zone under Bankstown Local Environment Plan 2001 (BLEP). Boarding houses are prohibited within the 2(a) zone.

5 The application was lodged pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

6 Clause 8 of SEPP ARH provides that if there is an inconsistency between the policy and an environmental planning instrument, SEPP ARH prevails to the extent of the inconsistency.

7 Clause 26 of SEPP ARH specifies the land to which 'Division 3 Boarding Houses' applies, as follows:

This Division applies to land within any of the following land use zones or within a land use zone that is equivalent to any of those zones:

(a) Zone R1 General Residential,

(b) Zone R2 Low Density Residential,

(c) Zone R3 Medium Density Residential,

(d) Zone R4 High Density Residential,

(e) Zone B1 Neighbourhood Centre,

(f) Zone B2 Local Centre,

(g) Zone B4 Mixed Use.

8 Clause 4(2) of SEPP ARH adopts the definitions in the Standard Instrument (Local Environment Plans) Order 2006 (Standard Instrument).

9 References to equivalent land use zones are defined in clause 5(1) of SEPP ARH, as follows:

A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act:

(a) that the Director-General has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or

(b) if no such determination has been made in respect of the particular zone, is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone.

10 As there has not been a determination by the Director-General as described by clause 5(1)(a), clause 5(1)(b) applies to the appeal.

Contention

11 The parties disagree on whether SEPP ARH applies to the development and therefore whether the proposed boarding house is permissible.

12 According to the Council, as the site does not fall within any of the named land use zones, the issue is whether the 2(a) Residential Zone of BLEP is equivalent to any of the zones in the Standard Instrument. The Council contends that, while there is some commonality between the land uses permitted in both the 2(a) Residential (BLEP) and R1 Zone (Standard Instrument), the extent of the disjunction is such that a consent authority would reasonably conclude the zones are not equivalent. The Council contends that the fact that boarding houses are prohibited in the 2(a) Residential Zone (BLEP) and are permissible in the R1 Zone (Standard Instrument) is significant in determining the permissibility issue.

Comparison between Zones 2(a) BLEP and R1 and R2 of Standard Instrument

13 Schedule 1 BLEP Dictionary, defines 'rowhouses', 'housing for older people or people with a disability', 'home business' and 'home office' as:

rowhouses means three attached dwellings erected on a corner allotment of a public road with each having a common wall or walls with the adjoining dwelling or dwellings.

housing for older people or people with a disability means residential accommodation which may take any building form, which is or is intended to be used as housing for the permanent accommodation of older people (persons 55 years old or older) or people with a disability.

villas means three or more dwellings on a site sharing part of the site for access or open space or site facilities.

home business means a business carried on in a dwelling or a building erected within the curtilage of a dwelling where:

(a) the use does not involve the employment of persons other than residents of the site and a maximum of 1 non-resident, and

(b) the use does not involve the retailing of goods or the display of goods whether in a window or otherwise, and

(c) the use does not involve the exhibition of any notice, advertisement or sign (other than a notice, advertisement or sign exhibited on that building to indicate the name and occupation of the resident or residents), and

(d) the use does not involve a brothel, and

(e) the use does not involve manufacturing or processing of any kind, and

(f) the use does not have a detrimental impact on the amenity of adjoining residences.

home office means a home business undertaken in a single room (with a maximum area of 30 square metres) of a dwelling house, where the use:

(a) only involves the employment of persons who are residents of the dwelling or dwelling house, and

(b) does not have a detrimental impact on the amenity of adjoining residences, and

(c) does not involve any retailing, manufacturing or processing of any kind, and

(d) does not involve a brothel.

14 The Standard Instrument defines 'attached dwelling', 'seniors housing' and 'home occupation' as:

attached dwelling means a building containing 3 or more dwellings, where:

(a) each dwelling is attached to another dwelling by a common wall, and

(b) each of the dwellings is on its own lot of land, and

(c) none of the dwellings is located above any part of another dwelling.

seniors housing means a building or place that is:

(a) a residential care facility, or

(b) a hostel within the meaning of clause 12 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, or

(c) a group of self-contained dwellings, or

(d) a combination of any of the buildings or places referred to in paragraphs (a)-(c), and that is, or is intended to be, used permanently for:

(e) seniors or people who have a disability, or

(f) people who live in the same household with seniors or people who have a disability, or

(g) staff employed to assist in the administration of the building or place or in the provision of services to persons living in the building or place,

but does not include a hospital.

home occupation means an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve:

(a) the employment of persons other than those residents, or

(b) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise, or

(c) the display of goods, whether in a window or otherwise, or

(d) the exhibition of any signage (other than a business identification sign), or

(e) the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

15 On the basis of the definitions, I have taken 'rowhouses' and 'villas' in BLEP as being the same as 'attached houses' in the Standard Instrument; 'housing for older people or people with a disability' in BLEP as the same as 'seniors housing' in the Standard Instrument and 'home business' and 'home office' in BLEP as being sufficiently similar to 'home occupation' in the Standard Instrument. In the following table, the Standard Instrument term is included in brackets following the BLEP term when they have been taken to be the same use.

16 The comparison between the zones in the following table is confined to a comparison between the 2(a) Residential Zone in BLEP and the Standard Instrument zones, R1 General Residential Zone and R2 Low Density Residential Zone. The remaining zones identified by Division 3 of SEPP ARH (clause 26) as being land on which a boarding house is permissible, Zones R3 Medium Density Residential; R4 High Density Residential; B1 Neighbourhood Centre; B2 Local Centre and B4 Mixed Use are so different in their nature and uses to the 2(a) Residential Zone in BLEP, that they can be eliminated as being potentially equivalent.

17 The following table is a comparison of Permissible Uses in the 2(a) Residential (BLEP), R1 General Residential Zone and R2 Low Density Residential Zone (Standard Instrument). Permissible uses (with or without consent) in each zone are marked by a dot.

USE	2(a)	R1	R2
Bed and breakfast establishments	●
Boarding houses		●	●
Car parks	●
Centre based child care centres	●	●
Community facilities	●	●
Dams	●
Dual occupancies	●
Dwelling houses	●	●	●
Educational establishments	●
Family day care centres	●
Family housing	●
Group home		●	●
Health consulting rooms	●
Home based child care centres	●
Home businesses (Home occupations)	●		●
Home offices (Home occupations)	●		●
Hospitals	●
Hostels		●
Housing for older people or people with a disability (Seniors housing)	●	●
Landfilling	●
Marinas	●
Multi-dwelling housing		●
Neighbourhood shops		●
Places of public worship	●	●
Public buildings	●
Recreation areas	●
Residential flat building		●
Respite day care centres		●
Rowhouses (Attached dwellings)	●	●
Sanctuaries	●
Semi-detached dwellings		●
Shop top housing		●
Utility installations	●
Villas (Attached dwellings)	●	●

Findings

18 Clause 5(1)(b) of SEPP ARH requires the Court to form an opinion as to whether 2(a) Residential BLEP is a land use zone in which equivalent land uses are permitted to those in the named land use zone, which in this appeal is confined to either R1 or R2 of the Standard Instrument.

19 Clause 5(1)(b) does not distinguish between permissible uses with or without consent.

20 Clause 5(1)(b) refers to 'land uses' in the plural. It is therefore necessary to make determine whether the set of permissible land uses within a zone is equivalent to the set of permissible land uses in another. It is also necessary to take into consideration the land uses that are not common between the 2(a) Residential Zone BLEP and the named land use zone in order to form an opinion as to the equivalence of the two zones.

21 Comparing the 2(a) Residential Zone (BLEP) to the R1 Zone (Standard Instrument), uses common to both zones are centre based child care centres, community facilities, dwelling houses, places of public worship, rowhouses (attached dwellings) and villas (attached dwellings). There are 17 additional uses permissible in the 2(a) Residential Zone BLEP, which are not permissible in the R1 Zone (Standard Instrument), including uses as diverse as hospitals, health consulting rooms, educational establishments, landfilling and marinas.

22 Comparing the 2(a) Residential Zone (BLEP) to the R2 Zone (Standard Instrument), uses common to both zones are dwelling houses, home businesses (home occupations) and home offices (home occupations). The R2 Zone (Standard Instrument) permits, in addition, boarding houses and group homes, which are prohibited in the 2(a) Residential Zone (BLEP). There are 22 additional uses permissible in the 2(a) Residential Zone BLEP, which are not permissible in the R2 Zone (Standard Instrument).

Conclusion

23 In considering the set of permissible uses in the 2(a) Residential Zone (BLEP) and the set of permissible uses in either the R1 or R2 Zones (Standard Instrument), there are significant differences, not only in the numerical tally of shared and exclusive uses, but also in terms of the nature of the uses permissible in the 2(a) Residential Zone, when compared to the permissible uses in either the R1 or R2 Zones. In my view, this is sufficient to conclude that the zones are not 'equivalent' for the purposes of SEPP ARH.

24 I therefore find that the 2(a) Residential Zone (BLEP) is not equivalent to the R1 General Residential Zone (Standard Instrument), nor is it equivalent to the R2 Low Density Residential Zone (Standard Instrument) and consequently the proposed development is prohibited.

25 This judgment reaches a different conclusion to Chami v Bankstown City Council NSWLEC 1311, where the Commissioner addressed a broader set of considerations in determining that the zones were equivalent. It is unclear whether the same arguments were raised during those proceedings.

Orders

26 The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 248/2011 is refused.

3. The exhibits are returned.

Susan O'Neill

Commissioner of the Court

Decision last updated: 16 May 2012