It is often the case that the most difficult obstacle standing in the path of approval of a proposal for a boarding house that is made under the "Affordable Rental Housing SEPP" is the requirement under clause 30A of the SEPP that the boarding house development will be "compatible with the character of the area".
However, a recent judgement by Senior Commissioner Moore, Revelop Projects Pty Limited v Parramatta City Council, (2014) NSWLEC 1167, illustrates that even where the proposal satisfies the
"compatibility test:", a development application is not necessarily "home free". A failure to comply with design requirements in the relevant council's Development Control Plan can be a separate and independent grounds for rejection of the development application.
The proposal that was at issue in the Revelop Projects case sought approval for the construction of a boarding house in the Talopea district of Parramatta Council's local government area. Commissioner Moore noted in his judgement that the applicable planning controls envisaged that the future character of the area would have greater density than at present, when it consists predominantly of single storey, single residence buildings. The Commissioner observed that the Council had recently granted approval for a residential flat building on the adjoining property. Commissioner Moore also took note of the fact that properties opposite the site had height control limits of 15 and 20 metres. Apparently due to the permissible height of future development in the area, along with the fact that the Council's Local Environmental Plan provided that boarding houses are a permissible land use in the high density residential zone where the site is located, Senior Commissioner Moore (applying the Court's planning principle in Project Venture Developments v Pittwater Council (2005) NSWLEC 191) determined that the proposal would be compatible with the future character of the area.
Unfortunately for the applicant, Senior Commissioner Moore went beyond the "character test:" and examined the particulars of the design of the proposal. This exercise led the Senior Commissioner to identify two design issues which he considered to be insurmountable.
The first of these issues arose because the proposed boarding house was on a corner site. The Senior Commissioner took note of diagrams in the Council's DCP which indicated that buildings placed on corner sites should have a "curvilinear and articulated presentation to a corner" that would provide a "soft and not aggressive" definition of the corner.. In contrast the Senior Commissioner determined that the proposed development (depicted above) would have a "bold and assertive" presentation to the corner. The Senior Commissioner decided that this treatment was so out of character with what he considered to be envisaged by the Development Control Plan that it warranted refusal of the development.
The second issue that proved fatal to the proposal was the failure of the design to provide for communal rooms on each level of the boarding house. Although the Affordable Rental Housing SEPP only requires that there be one communal room for a boarding house with 5 rooms or more, Senior Commissioner Moore determined that this is a minimum requirement. Accordingly, the Senior Commissioner found that Parramatta Council's DCP, which requires a communal room on each floor, was not in conflict with the Affordable Housing SEPP.
Notwithstanding the fact that there was evidence before the Court that due to the high level of internal amenity that would be provided in each of the rooms of the proposed boarding house it was not necessary for the building to have a communal room on each floor, Senior Commissioner Moore reached the view that it was not appropriate in the circumstances of the case to depart from the requirement that there be a communal room on every floor. The Senior Commissioner found that this was again reason enough to reject the proposal.
The result in this case providers a cautionary lesson to developers who would seek to rely on the Affordable Rental Housing SEPP: not only is it essential that the design be configured to ensure that the proposal meets the test of compatibility with the character of the surrounding area, but it is equally important that the design requirements of the applicable Development Control Plan also be adhered to.
The Court's decision in the case can be found at: http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=173569
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