4. What if there is still opposition to affordable housing?

A. ‘But I’ve done everything I can…’

Sometimes you will still face community opposition to your development, despite doing everything suggested by the evidence on good practice.

Although going to Court is absolutely a last resort as it is costly and unpredictable, if you have a good quality, compliant development you have reasonable prospects of success. There are some interesting cases in this regard.

Some affordable housing proponents have done everything that would normally assist in building community acceptance for the proposal and gaining planning approval. They have:

• Proactively built a relationship with their Council/s;
• Demonstrated that they have a long-term commitment to the community;
• Engaged in strategic site selection and conducted a risk assessment on their site and locality;
• Initiated pre-DA meetings with the relevant Council;
• Actively consulted with surrounding residents, resident associations, and other key groups;
• Engaged qualified professionals to provide planning and other technical advice;
• Developed a high quality design that addresses key compliance issues and likely areas of community concern;
• Undertaken relevant studies as requested by Council;
• Kept the community and Council informed of progress;
• Ensured that all documentation required by Council has been completed and all relevant studies submitted;
• Continued to proactively consult with immediately surrounding neighbours and any other potentially sensitive groups during the exhibition period;
• Offered to do a further presentation to Council if this would be useful.

If all else fails and, on advice from your qualified planner or legal representative, your development has reasonable prospects of success, you can lodge an appeal with the NSW Land and Environment Court.

JSA reviewed 88 cases that have come before the NSW LEC since the gazettal of SEPPARH. Of these, 55 cases related to boarding house applications and 33 cases related to affordable housing applications, and:

• 62% of boarding house development applications were approved by the Court on appeal.
• 42% of affordable housing development applications were approved by the Court on appeal.

As such, applicants have reasonable prospects of having their application approved by the Court, particularly for a boarding house, but a Court action can be costly and lead to major delays for the proposed development, and is a last resort.

You may find some Land and Environment Court cases where the applicant was successful interesting:

CASE 1: Abdul-Rahman v Strathfield Council (10 October 2014)

CASE 2: Pembroke Street Holding Company Pty Ltd v Ashfield Council

CASE 3: Southern Cross Community Housing Ltd v Shoalhaven City Council (9 November 2010)]

CASE 3: St George Community Housing Ltd v Sutherland Shire Council (10 December 2015)]

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