In the recent case of Geeves v Inner West Council, the Land and Environment Court found that it had no power to issue a development consent because a development standard was exceeded and no variation had been sought.
The proposal and relevant law
The proposed development was for the construction of a boarding house containing 18 rooms and associated facilities at 96-98 May Street in St Peters. The development application was deemed to be refused by Inner West Council (for more information about deemed refusals, click here).
The application was made under the State Environmental Planning Policy (Affordable Rental Housing) 2009. This policy provides details of development standards that must be satisfied before development consent can be granted, including (with emphasis added):
30 Standards for boarding houses
(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:
(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,
(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,
(c) no boarding room will be occupied by more than 2 adult lodgers,
(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,
(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,
(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,
(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.
(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.
Development standards can be varied in some instances. Click here for more information about varying development standards in the Land and Environment Court.
The Land and Environment Court noted that:
- the expert for Inner West Council had calculated the boarding room areas and found that they exceeded the maximum 25 square metre standard;
- the architectual plans showed the “gross” area of each boarding room to be more than 25 square metres, and the “net” area to be less than 25 square metres, without any clarification as to the meaning of “gross” or “net”;
- the expert for Geeves achnowledged that the architectual plans showed rooms that exceeded the 25 square metre standard; and
- no variation of the development standard had been sought by the applicant.
Both Geeves and Inner West Council agreed that without a variation request, the Land and Environment Court had no power to grant development consent. The Court ultimately dismissed the appeal.
Important take-aways from this case include:
- if a proposed development is not in accordance with a development standard, a variation of that standard must be sought by the applicant; and
- if a variation of a development standard is not sought, the consent authority will not have the power to grant development consent.