Land and Environment Court New South Wales

• Medium Neutral Citation: Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129
• Hearing dates: 19-20 April, 14 May 2012
• Decision date: 22 May 2012
• Jurisdiction: Class 1
• Before: Morris C

Decision

Appeal dismissed

• Catchwords: Development application; affordable rental housing; boarding house; compatibility with character of local area.
• Legislation Cited: Byron Local Environmental Plan 1988; Environmental Planning and Assessment Act 1979; Standard Instrument - Principal Local Environmental Plan; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy (Affordable Rental Housing) 2011
• Cases Cited: Chehade v Bankstown Council [2012] NSWLEC 1122.; Project Venture Developments v Pittwater Council [2005] NSWLEC 191
• Texts Cited: Byron Shire Development Control Plan 2010
• Category: Principal judgment
• Parties: Murray Stebbing; Julia Stebbing (Applicant); Byron Shire Council (Respondent)
• Representation: Counsel; Mr P Tomasetti SC (Applicant); Solicitors; Mr M Young; McCartney Young Lawyers (Applicant); Mr A Seton; Marsdens Law Group (Respondent)
• File Number(s): 11144 of 2011

Judgment

1 Mr and Mrs Stebbing own and operate an indoor sports facility at 14-16 Teven Street Brunswick Heads and sought consent from Byron Shire Council to carry out alterations and additions to that facility and change the use of the building to affordable rental housing in the form of a boarding house. The council refused consent to Development Application 10.2010.606 and the Stebbings are appealing that decision.

2 The issues in the case are whether the site is suitable for the proposed use, the development is compatible with the character of the neighbourhood, an appropriate level of amenity is provided to residents of the boarding house, there will be any unacceptable amenity impacts to adjoining and nearby properties in terms of noise and privacy, adequate parking is provided and the use is consistent with the strategic plans for the area and is in the public interest.

Background and the proposal

3 The council approved commercial development of the site comprising squash courts and indoor swimming pool on 11 September 1972. A number of alterations and additions have been approved since that time culminating in the current two storey building that contains a gymnasium, four squash courts, indoor swimming pool and associated office, amenities, viewing gallery and administration areas. Use of the site as a recreation area is permitted with consent.

4 Prior to the hearing, leave was granted to the applicant to rely on amended plans. The main changes made to the application as determined by the council involved the deletion of a free-standing manager's residence, the reduction in the number of rooms and increase in common areas.

5 During the hearing, further leave was granted to the applicant to provide further amended plans. These changes involved a reduction in the number of on-site parking spaces and the increase in area provided from landscaping. The changes were not deemed minor for the purposes of s 97B of the Environmental Planning and Assessment Act 1979 (the Act) and the issue of costs was reserved. The plans now before the Court seek approval for:

Alterations and additions to the existing building;

Change of use to a 'new generation boarding house' for affordable housing comprising:

• 27 x 1 bedroom units, 1 x 1 bedroom manager's unit
• 1 recreation room
• 1 recreation/gymnasium
• upper floor lounge area and small sitting/reading area
• lower floor lounge area
• outdoor terrace with undercover BBQ area
• parking for 4 cars, 6 motorbikes and an area for the storage of bicycles.

The site and its context

6 The site is located on the southern side of Teven Street and also has frontage to Minyon Lane. Frontages to each roadway are 29.225 m and 40.235 m respectively resulting in a site area of 1413 square metres. The relatively flat site contains a large, double storey brick building currently used as a squash centre and indoor recreation facility. That building is setback into the widest portion of the L-shaped lot adjacent to Minyon Lane, the side property boundaries and the rear boundary of 12 Teven Street. The remainder of the site is paved in concrete and used for carparking. The parking spaces are not line marked however, approximately 20 cars can be parked on site. The most recent plans for the squash centre made provision for 17 parking spaces.

7 Development immediately adjacent to the site comprises singe storey dwelling houses. There is a range of single and double storey dwellings in the remainder of the street with one multi-unit development on the northern side of the street and a vehicle repair station on the corner of Teven and Tweed Streets. Development on the opposite side of the laneway comprises single detached housing, with dual occupancy developments further to the east towards Tweed St. The squash centre and the car repair station are the only non-residential developments within the locality.

8 The Brunswick Heads commercial centre is 900 m to the north-east of the site and a supermarket on Tweed Street is 600 m in the same direction. A bus shelter, also on Tweed Street is 260 m from the site and provides bus services to the shopping centre, Mullumbimby and Ocean Shores.

The planning controls

9 The site is zoned Residential 2(a) under Byron Local Environmental Plan 1988 (the LEP). The objectives of that zone are:

(a) to make provision for certain suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility,

(b) to encourage a range of housing types in appropriate locations,

(c) to enable development for purposes other than residential purposes only if it is compatible with the character of the living area and has a domestic scale and character, and

(d) to control by means of a development control plan the location, form, character and density of permissible development.

10 A boarding house is permitted with consent in the 2(a) zone. The Dictionary to the LEP provides the following definition:

Boarding-house means a dwelling-house let in lodgings but does not include a motel or a hostel or any other form of short-term accommodation.

11 Byron Shire Development Control Plan 2010 also applies to the site and Chapter 1, Part C (Residential Development), Part 3 (Vehicle Circulation and Parking), Part H (Landscaping) and Chapter 21- Social Impact Assessment are relevant to this application.

12 State Environmental Planning Policy (Affordable Rental Housing) 2009 (the original SEPP) is the primary environmental planning instrument that applies to the application. That policy was amended by State Environmental Planning Policy (Affordable Rental Housing) 2011 (the amending SEPP) on 20 May 2011 and, of particular relevance to this application, introduced additional matters for consideration, limited the areas where boarding houses could be located and provides the consent authority with discretion as to application of the savings and transitional provisions. The relevant clauses are 27, 30A and 54A and read as follows:

27 Development to which Division applies

(1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses.

(2) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area.

(3) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones.

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

54A Savings and transitional provisions-2011 amendment

(1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if:

(a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and

(b) the development is commenced not later than 2 years after the amendment.

(2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made.

(3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

(4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP.

13 The parties agree that Division 3 of Part 2 of the original SEPP applied to the site at the time the application was lodged (2 December 2010) however disagree whether the use would now be permitted under the amending SEPP. That is because the planning expert for the council contends the 2(a) zone is not an equivalent zone to the R1 zone and the site is not within an accessible area.

14 Mr Tomasetti, for the applicant, pressed the Court to indicate whether it intended to exercise its discretion and apply the amending SEPP or the original SEPP. A determination of that issue was not made at that point as it is my view that the proper reading of clause requires a merit assessment of the application on the basis of all of the evidence available and until such time as that evidence had been provided, it was not appropriate to eliminate the discretion provided by clause 54A(2).

The evidence

15 The hearing commenced on site and evidence was heard from a number of resident, both for and against the proposal. The issues raised are summarised as being:

• Inadequate provision for parking in an area with poor access to services and public transport;
• Increased traffic;
• Development is of excessive size and scale and not in character with the low density locality;
• Rooms are too small and offer poor amenity to residents;
• Will make existing stormwater problems worse;
• Increased noise, loss of amenity and privacy;
• Such a large facility is not needed;
• Social issues;
• Existing facility is a valuable community asset and should be retained;
• Development would provide much needed affordable housing;
• Use for residential purposes more in keeping with the area;

16 Expert evidence was heard from:

Applicant                       Respondent                  Area

Mr P Williams               Mr C McLaren              Traffic and Parking

Ms K Singleton            Mr N Kennan                Town Planning

Mr P Williams              Mr S Dooland               Civil Engineering

Mr P Lucena                Mr A Vardouniotis       Structural Engineering

Traffic and parking

17 The experts agree that the proposed development would generate less traffic than the existing use of the site however there would be more out of hours movements. Mr McLaren says the site is poorly located in relation to access to shops and services and is not appropriate for its intended use. He cites a 400 m distance from those facilities as being appropriate and consistent with the amending SEPP. Mr Williams says that the site, being 260 m from a bus stop that provides 4 weekday services from Brunswick Heads to Mullumbimby as well as 3 weekday services to Ocean Shores is, for a regional population of 1600 people, above the average level of service typically found in the Northern Rivers for such regions and is a sufficient level of availability. In addition, he says that three school bus services are available for travel if desired and the site can be serviced by Byron Bay Taxis & Limousines, Tweed-Byron and Ballina Community Transport and BAT Bus, the latter two, being limited to persons eligible for the particular community operated service.

18 Mr McLaren says that whilst these services are available, the frequency of service is low and that fact, with the distance to the local centre, will encourage car based trips for work, shopping and recreational purposes.

19 Both experts agree that the original SEPP required not more (emphasis added) than 4 on-site parking spaces. Mr McLaren says that, for that reason, consent should not be granted to any application that provides more parking. Mr Williams says, that because the application is for the adaptive reuse of an existing building with surplus parking spaces he says that these spaces should be used, particularly as the amending SEPP would require 12 spaces.

Structural engineering issues

20 The experts agree that the change of use of the structure as proposed could be carried out and that any structural works that will be required would not affect the size of rooms. They agreed that structural ties would need to be attached to the northern elevation of the building where openings were to be cut and that this could be done without affecting the proposed privacy screens or reducing solar access to the adjoining rooms.

Civil engineering issues

21 The experts agreed that the plans now before the Court have significantly reduced the extent of impervious areas on the site. During the hearing, further consideration of the required works to ensure the proper disposal of stormwater and works within the rear lane was undertaken and conditions of consent were drafted and agreed.

Planning

22 Mr Kennan considers that the 2(a) zone is equivalent to the R2 zone and, because it is not within 400 m walking distance of land zoned equivalent to B2 Local Centre or B4 Mixed Use, the proposal would be prohibited under the amending SEPP by the provisions of clause 27(3). He also relies on the council's draft local environmental plan that proposes to include the site in the R2 zone. Ms Singleton disagrees and compares the objectives and permissible uses of the 2(a) zone to that of the R1 zone and concludes the site is equivalent to the R1zone and therefore both the original and amending SEPPs would allow the development (clauses 26 and 27(1).

23 The experts agree that the floor space ratio (FSR) of the proposed development is 0.94:1 and that the SEPP provides for a maximum FSR of 1:1 so it is compliant with that control.

24 They also agree that, for the purposes of considering whether the design of the development is compatible with the character of the local area as required under clause 30A of the amending SEPP, a mandatory consideration, that local area is the area bound by Tweed, Short, Byron and Minyon Streets and that it consists largely of single houses with some medium density and commercial development.

25 Ms Singleton says that because the existing building forms part of the character of the area, that character will not change. She says the building would be modified so that it is more residential in character than the existing building, the proposed openings in the northern and southern facades and the proposed building finishes will assist in improving the relationship with adjoining and surrounding development and this will result in a building that is compatible with the local area and consistent with the range of housing forms permitted within the 2(a) zone. She says the test is the design of the building and because it is not a vacant site, the development offers an improvement, and whilst it is not a building that responds to the streetscape, it introduces landscaping and windows that break up the bulk. Because it is different, does not mean it is out of context and Ms Singleton says that the fact that the building has been there for 40 years means it is in context.

26 Mr Kennan disagrees and says the character of the area is predominantly that which is associated with low density residential development with some medium density housing and the existing built form, being a two storey commercial development with little architectural merit, is not the built form anticipated by the council in the local area, is not low density residential in character nor does it portray a character commensurate with a residential flat building and is not consistent with the desired future character of the area so concludes the development is not compatible with the character of the area.

27 In regard to internal amenity, Mr Kennan says that the majority of common rooms are located on the south side of the building and do not receive the sunlight required by clause 29(2)(c) of either SEPP. He does not agree that the area adjacent to the office space, as nominated by the applicant, is part of the lounge area but rather forms part of the main entry and corridor space however, accepts the advice of the architect Mr Logan, that the area does receive three hours direct sunlight between 9 am and 3 pm. In relation to the upper floor lounge, he says that the area that receives direct sunlight is only 9 sqm of the 17 sqm total space of that lounge area and says that is not enough for the size of the establishment.

28 Ms Singleton says that clause 30 of both policies does not set a minimum size for communal spaces and only requires that one area is provided, that the development provides three lounge areas, two recreation rooms and a small sitting room and those spaces are compliant however agrees none of the areas provided will receive sunlight to the whole of the space but says that is not necessary and also notes that consent may be granted, under clause 29(4) even if the standards are not met. She also says that due to the climate, it is appropriate to provide shady areas that do not receive sun and considers that they would be well utilised and contribute to social interaction and added amenity.

29 The outdoor communal open space is provided to the north of the building, has an area of 70 sqm and exceeds the standard that cannot be used to refuse consent. That standard, specified in clause 29(2)(d)(i), requires at least 20 sqm with a minimum dimension of 3 m. In addition the 8 sqm private open space area required by clause 29(2)(d)(ii) is provided in a courtyard to the immediate north of the manager's room.

30 Mr Keenan is concerned that the double loaded corridor formation of the proposal does not provide for adequate cross ventilation of rooms and, because of the zero setback to the rear lane, he says the design of those rooms does not promote suitable security, is contrary to recognised crime prevention through environmental design principles and has the potential for overlooking from the lane promoting adverse amenity for the residents of those boarding rooms. In addition, he says the need to provide privacy screens reduces the solar access to a number of the rooms and the proximity of the outdoor courtyard to rooms 1-4 has the potential for privacy and acoustic conflicts.

31 Ms Singleton says the design provides satisfactory space for occupants and complies with the relevant provisions of the SEPP and notes that the amending SEPP limits the floor area of rooms to 25 sqm (excluding kitchen and bathrooms). She says the rooms are compliant, provide adequate light and ventilation, some include private courtyards and there is no control that requires all rooms to receive sunlight and compares this to a situation in a dwelling house where bedrooms are often located on the southern side of a dwelling and receive little or no direct sunlight.

32 Mr Kennan says that the introduction of first floor balconies to the four units at the western end of the building results in unreasonable privacy impacts to the immediately adjoining property 18 Teven Street and the proximity of the outdoor communal area to that site would also have adverse amenity impacts due to noise and overlooking. Ms Singleton disagrees and says the adaptive re-use of the existing building for residential purposes would not be likely to result in additional impacts on the amenity of adjoining properties in terms of noise and that the provision of privacy screens to the north-eastern rooms addresses the potential privacy impacts to 12 Teven Street however, she did not address those issues in terms of No 18.

33 With regard to the public interest, Mr Kennan says the proposal is unsatisfactory, because it is larger than what would be allowed by the council's draft strategic planning documents (these provide for a FSR of 0.4:1), utilises a built form that does not sit with the desired future character of the area and creates significant and adverse impacts to both the residents of the development and to adjoining residents to the north of the site. Ms Singleton says the development responds directly to a recognised need for housing options that will meet the changing demographic characteristics of the area and considers the potential adverse impact of the proposal is less than that resulting from the existing use so concludes the development is consistent with the public interest.

Conclusion and findings

34 There is no dispute that there is a need within the Brunswick Heads community for the provision of affordable housing and the Court heard evidence to this effect from members of local community groups. I accept that the provision of affordable rental housing would be in the public interest. The issues in dispute are whether the site and form of development proposed is suited for use as a boarding house and the design of the development is compatible with the character of the local area. It is also necessary for the Court to determine whether the site is an equivalent zone for the purposes of SEPPARH and whether it is appropriate to apply the provisions of the amending SEPP or SEPPARH.

35 In accordance with the requirements of clause 5 of SEPPARH, the Court must determine whether the site is within a land use zone that is equivalent to the R1, R2, R3, R4, B1, B2 or B4 zones under the Standard Instrument - Principal Local Environmental Plan (the Standard Instrument) for the provisions of that policy to apply. That is because the Director General has not determined the issue. (Clause 5(1)(a). If the policy does not apply, the application could be determined under the provisions of the LEP as boarding houses are permitted with consent.

36 It is necessary to determine whether the 2(a) zone is a land use zone in which equivalent land uses are permitted to the relevant zones under the Standard Instrument. The B1, B2 and B3 are not comparable. The following table compares uses permitted in the four Standard Instrument residential zones and the 2(a) zone, noting the format of the LEP for the 2(a) zone permits uses with consent that are not prohibited uses rather than lists uses that are permitted with consent.

Land use	2(a)	R1	R2	R3	R4
Attached dwellings	•	•		•
Boarding houses	•	•	•	•	•
Child Care Centres	•	•		•	•
Community Facilities	•	•		•	•
Dwelling houses	•	•	•
Group homes	•	•	•	•
Hostels	•	•
Multi dwelling housing	•	•		•
Neighbourhood shops	General store & Schedule 3 shops	•		•	•
Places of public worship	•	•		•	•
Residential flat buildings	•	•			•
Respite day care centres	•	•		•	•
Semi-detached dwellings	•	•
Seniors housing	•	•		•
Shop-top housing	Some	•			•

37 From the above table, it is apparent that the 2(a) zone permits the range of uses permitted in the R1 General Residential Zone whereas, in the case of all other Standard Instrument Zones, certain land uses are not permitted. Of particular relevance in the R2 zone is the prohibition of attached dwellings, multi dwelling housing, residential flat buildings and semi-detached dwellings along with the range of non-residential development permitted in the R1 and 2(a) zones. Similarly, the prohibition of dwelling houses, hostels and semi-detached dwellings in the R3 and R4 zones and multi-dwelling housing in the R4 zone have significant effect in the determination of the issue of equivalent zone. Because the land uses permitted in the 2(a) zone are generally the same as those permitted in the R1 zone, I am satisfied the 2(a) zone is equivalent to the R1 zone and the provisions of SEPPARH apply to the site.

38 These findings are consistent with the analysis of equivalent zones I undertook in Chehade v Bankstown Council [2012] NSWLEC 1122.

39 This determination also resolves a contention of the council in relation to the application of the amending SEPP and in particular the provisions of clause 27. Having found the site is not equivalent to the R2 zone, the prohibition that would result through the application of clause 27(3) of the amending SEPP does not arise.

40 The local area against which the design of the development must be considered under S54A is agreed between the experts and I accept that the area is as described at [24]. The existing squash centre building is a building that is located within that area and, along with the car repair station at the corner of Tweed and Teven Street, are the only two non-residential developments in that local area. Whilst I accept that these two buildings form part of the character of the local area, I do not accept the view of Ms Singleton that they are compatible with the overall character of the area which is a low density residential area. Those two buildings are exceptions to the predominant character and, because of their bulk, siting, scale and appearance are a discordant element in the local area. Where dual occupancy and multi-unit housing has occurred, the scale, setbacks and siting of those buildings is consistent with the adjacent buildings and landscaped areas are provided around the units with adequate side setbacks provided to reduce the impacts of those buildings on adjoining properties.

41 The changes proposed to the building do nothing to alter the bulk and scale of the building or its siting on the land. The works also introduce elements such as balconies, which, in accordance with Mr Keenan's evidence, have adverse amenity impacts on the adjoining residential property 18 Teven Street particularly in terms of noise and overlooking. The reduction in the extent of sealed carparking and landscaping of that area would enhance the streetscape however, the extent of landscaping proposed and the location of the structure are not consistent with the siting of development in the local area.

42 Having regard to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, I accept that to be compatible does not mean a development has to be the same. Having considered whether the proposal's physical impacts on surrounding development are acceptable and if the proposal's appearance is in harmony with the buildings around it, I find that it is not and accordingly, the design of the proposed development is not compatible with the local area.

43 That is not the end of the exercise. The application must still be considered on its merits. In this regard, I note the development meets all of the relevant controls contained in SEPPARH. I agree with Ms Singleton that the solar access received to the two north facing living rooms is acceptable and that, because there are a number of common rooms that not all of them need to receive three hours sunlight midwinter and having regard to the Brunswick Heads climate, I also agree that it is desirable for some cooler areas to be available, particularly for use by lodgers of north facing rooms. I accept Mr Kennan's evidence that the design, siting and location of windows to the lower ground floor rooms adjacent to Minyon Lane is not desirable. I do not consider the necessity to install security screens to address this issue as suggested by Ms Singleton is an appropriate response but is the result of poor siting and design.

44 I accept the evidence of Mr Kennan that the provision of new openings into the northern wall of the building will significantly increase the potential for overlooking of adjoining properties and whilst screens are proposed to the eastern rooms, no such treatment is proposed for the western rooms and particularly the balconies. To add such structures would further increase the bulk of the building and reinforce the unacceptable visual presentation of the building. I also accept his evidence that the location of the outdoor communal area is likely to result in noise and overlooking of the adjoining property to the west and also to the units that open onto that space.

45 I have acknowledged the need for affordable rental housing in Brunswick Heads and believe that the provision of such would be in the public interest however; it should be provided in a manner that is appropriate in terms of its impacts and design. I conclude that the design of the development as proposed will have adverse amenity impacts on the local area and I place significant weight on the fact that the development is not compatible with the character of the local area. For those reasons the application should be refused.

46 The Orders of the Court are

(1) The appeal is dismissed.

(2) Development Application 10.2010.606 for alterations and additions to the existing building; change of use to a 'new generation boarding house' for affordable housing comprising 27 x 1 bedroom units, 1 x 1 bedroom manager's unit and associated amenities is refused consent.

(3) The exhibits, other than exhibits B, J and 2, are returned.

Sue Morris

Commissioner of the Court

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Decision last updated: 22 May 2012