One DA was particularly contentious, where a developer had carried on unauthorised work and occupation of a former nursing home.
Here's how it started...
DECLARATIONS OF PECUNIARY/NON PECUNIARY INTEREST
The Lord Mayor
The Lord Mayor declared a Non pecuniary, non significant interest in Item 32 – DA 09/0067 – 55 Bull Street Mayfield as he knew one person who was a director of the boarding house and who had contributed to the Lord Mayor’s 2007 State Election Campaign.
The Lord Mayor stayed in the chamber for the item.
The Council officers had concluded and recommended the following.
Conclusion
The proposed development has been assessed having regard to the relevant heads of consideration under Section 79C(1) of the Environmental Planning & Assessment Act, 1979 (as amended) and is considered to be unacceptable essentially on the grounds that the existing building is not a ‘dwelling’ and that the proposed occupants of the building are not ‘socially disadvantaged’ in accordance with the requirements of the State Environmental Planning Policy (Infrastructure) 2007.
Accordingly, it is recommended that the application be refused on grounds of the existing building not being a dwelling and therefore not a group home and that insufficient information has been submitted to convince Council that the building will be occupied by ‘socially disadvantaged’ people.
RECOMMENDATION
A. The application to convert the existing building into a permanent group home for student accommodation be refused for the following reasons:
i) The existing building is not a ‘dwelling’ and therefore the proposed development is not defined as a ‘group home’ [Section 79C(1)(a)(i)];
ii) The proposed development is defined as a ‘boarding house’ which is prohibited within the 2(a) Residential zone under the Newcastle Local Environmental Plan 2003 [Section 79C(1)(a)(i)];
iii) The proposed development does not provide accommodation for ‘socially disadvantaged’ people [Section 79C(1)(a)(i)].
iv) The proposed change of use to student accommodation would be likely to give rise to noise nuisance that would adversely impact on the amenity of neighbouring dwellings [Section 79C(1)(b)].
B. The owner of the premises be directed to discontinue the unauthorised occupation for the purpose of student accommodation.
The Officers' report also noted:
It is unrealistic to suggest that, even though the proposal includes some shared facilities, a 16 bedroom house would ever function as a dwelling occupied by a single family. The following elements of the proposal indicate that the building cannot reasonably be regarded as a ‘dwelling’ and, therefore, falls into another category of residential development:
a) there are 16 bedrooms proposed, each with its own key locked entrance;
b) two kitchens are proposed – the larger of the two containing two ovens, two cook tops, wok burner, microwave ovens and two double sinks;
c) a number of rooms have private bathrooms and toilets;
d) the building is much larger than a standard dwelling; and
e) the building has never been used as a dwelling.
Council's legal advice is supported by a decision in the Land & Environment Court Anthony Mackay v Newcastle City Council [2007] NSWLEC 377. If the Applicant were attempting to obtain development consent for a dwelling on this scale, it is highly likely it would be refused on the same grounds as in Mackay. If consent for a dwelling of this size and character could not be obtained, the building cannot be considered ‘capable of being occupied as a separate domicile’ and, therefore, in accordance with the provisions of the SEPP, cannot be used as a 'group home'.
But the conservatives had other ideas...
MOTION: (COUNCILLORS A BUMAN/S CONNELL)
A Council seek to amend the Newcastle LEP 2003 by deleting ‘boarding houses’ from the list of prohibited development within the 2(a) Residential zone and such amendment be included in the proposed 2009 amendments to the provisions of the Newcastle LEP 2003.
B Consideration of DA 09/0067 to change the use of the former nursing home at 55 Bull Street Mayfield stand deferred pending the Newcastle LEP 2003 being amended in the manner proposed.
C Council issue a penalty infringement notice on the owners in relation to their breach of the provisions of the Environmental Planning & Assessment Act.
D No further action be taken by Council at this stage in respect of the unauthorised use of the subject premises as a boarding house offering student accommodation, subject to the owner of the premises submitting to Council a Fire Safety Report that addresses fire safety issues with regard to the current use and any recommendations therein being complied with to the satisfaction of Council Officers.
AMENDMENT: (COUNCILLORS M OSBORNE/N NELMES)
A. The application to convert the existing building into a permanent group home for student accommodation be refused for the following reasons:
i) The existing building is not a ‘dwelling’ and therefore the proposed development is not defined as a ‘group home’ [Section 79C(1)(a)(i)];
ii) The proposed development is defined as a ‘boarding house’ which is prohibited within the 2(a) Residential zone under the Newcastle Local Environmental Plan 2003 [Section 79C(1)(a)(i)];
iii) The proposed development does not provide accommodation for ‘socially disadvantaged’ people [Section 79C(1)(a)(i)].
iv) The proposed change of use to student accommodation would be likely to give rise to noise nuisance that would adversely impact on the amenity of neighbouring dwellings [Section 79C(1)(b)].
B. The owner of the premises be directed to discontinue the unauthorised occupation for the purpose of student accommodation.
During discussion Councillor Nelmes referred to Councillor Buman’s ownership of a boarding house in Adamstown and questioned whether he had a conflict of interest in this matter.
POINT OF ORDER
Councillor Buman advised he took exception to Councillor Nelmes relating a personal matter which pertained to his ownership of property. He cited section 70.2 of the Code of Meeting Practice and requested the Lord Mayor make a ruling on the matter.
The Lord Mayor agreed that the matter was in line with 70.2 dot point 4 of the Code of Meeting Practice which was as follows:
A point of order may refer to any procedural matter relating to the orderly conduct of the meeting and without limitation may include:
• Public discourtesy to fellow Councillors during the meeting.
RESOLVED: (The Lord Mayor)
The Chairman’s ruling be upheld.
The Lord Mayor requested Councillor Nelmes withdraw her comments.
Councillor Buman accepted Councillor Nelmes withdrawal of her remarks. He stated his wife owned a men’s hostel for homeless men at Adamstown and he felt quite upset about the comments.
Councillor Buman requested a memo be distributed to all Councillors on the legal costs in relation to the development application.
The Amendment was put to the meeting and declared defeated.
The Motion was put to the meeting and a division was called which resulted as follows:
For the Motion: The Lord Mayor, Councillors G Boyd, A Buman, S Claydon, S Connell, B Cook, M Jackson, M King, B Luke and S Sharpe.
Against the Motion: Councillors T Crakanthorp, N Nelmes and M Osborne.
The Lord Mayor declared the Motion carried on the result of ten votes to three votes.
RESOLVED: (COUNCILLORS A BUMAN/S CONNELL)
A Council seek to amend the Newcastle LEP 2003 by deleting ‘boarding houses’ from the list of prohibited development within the 2(a) Residential zone and such amendment be included in the proposed 2009 amendments to the provisions of the Newcastle LEP 2003.
B Consideration of DA 09/0067 to change the use of the former nursing home at 55 Bull Street Mayfield stand deferred pending the Newcastle LEP 2003 being amended in the manner proposed.
C Council issue a penalty infringement notice on the owners in relation to their breach of the provisions of the Environmental Planning & Assessment Act.
D No further action be taken by Council at this stage in respect of the unauthorised use of the subject premises as a boarding house offering student accommodation, subject to the owner of the premises submitting to Council a Fire Safety Report that addresses fire safety issues with regard to the current use and any recommendations therein being complied with to the satisfaction of Council Officers.
No comments:
Post a Comment