Andrew Aitchison v Sutherland Shire Council

[2017] NSWLEC 1304

Land and Environment Court

New South Wales

Medium Neutral Citation:

Andrew Aitchison v Sutherland Shire Council [2017] NSWLEC 1304

Hearing dates:

24 & 25 November 2016

Date of orders:

06 June 2017

Decision date:

06 June 2017

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

 (1) The appeal is dismissed.
(2) Development consent for DA15/1594 is refused.
(3) The exhibits are returned, with the exception of Exhibit 1.

Catchwords:

Development Application: subdivision of land from one to two lots; dual occupancy; front and internal setbacks; weight to Sutherland Shire draft DCP.2015.

Legislation Cited:

Sutherland Shire Local Environment Plan 2015
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Four2Five Pty Ltd V Ashfield Council [2015] NSWLEC 1009
Frank and Susan Tomas v Ashfield Council [2016] NSWLEC 1183
Hurley v Sutherland Shire [2016] NSWLEC 1630
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] 129 LGERA 195

Texts Cited:

Draft Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Andrew Aitchison (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:

 

A. Pickles SC (Applicant)
R. O’Gorman (Respondent)

   

Solicitors:

  Hones Lawyers (Applicant)
J. Amy, Sutherland Shire Council (Respondent)

File Number(s):

2016/163285

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: This appeal is against the deemed refusal by Sutherland Shire Council (the Respondent) of a development application (DA15/1594) by Andrew Aitchison (the Applicant) for the subdivision of one lot at 75 Saunders Bay Road, Caringbah South (the Subject Site) into 2 lots, and the construction of 2 dual occupancy developments on each of the resultant lots for a total of 4 new dwellings. Each dwelling has 4 bedrooms and double car garage.

2. The Subject Site is located on the southern side of Saunders Bay Road between Parthenia Street and Gannons Road. The site has an area of 1733.2 m² and is broadly rectangular in shape.

3. The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The development application was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 27 June 2016. The conciliation process was terminated on 1 September 2016 and the appeal listed for hearing under s34C of the LEC Act.

5. An inspection of the Subject Site was undertaken immediately prior to the hearing. As part of the inspection submissions were made by 5 objectors (Ms Sanger, Ms Groat. Mr Stokes, Mr Van Dam, and Mr Russo. A record of the objectors’ submissions made on-site was tendered as evidence during the hearing.

Planning context

6. The EPA Act requires under s79C(1) that in determining a development application a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

1. the provisions of:

1. any environmental planning instrument, and

2. any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

3. any development control plan, and

4. any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

5. the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

6. any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

2. that apply to the land to which the development application relates,

3. the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

4. the suitability of the site for the development,

5. any submissions made in accordance with this Act or the regulations,

6. the public interest.

7. Development on the Subject Site is subject to the provisions of the Sutherland Shire Local Environment Plan 2015 (SSLEP 2015), which was made on 23 June 2015.

8. Under SSLEP 2015 the Subject Site is zoned E4 Environmental Living. The proposed dual occupancy development would only be permissible following subdivision of the current single lot into two lots.

9. The Parties agreed at the hearing that this aspect of permissibility should be addressed through a deferred commencement condition that required subdivision of the current single lot into two lots prior to the issuing of an operational consent.

10. Following subdivision, the proposed development is permissible with consent on the Subject Site, as an additional permitted use pursuant to clause.2.5, and Schedule 1 clause 28, of SSLEP 2015.

11. The permitted maximum height of a building on the Subject Site is 8.5m based the height of buildings map within the SSLEP 2015. However, this height limit reduces to 5.4 m:

1. for dual occupancy on an internal lot, or

2. for any rebuilding that as part of a dual occupancy, only for land in line with clause 4.3 (sub-clauses 2B and 2C) of SSLEP 2015.

12. The permitted floor space ratio (FSR) for developments on the Subject Site under SSLEP 2015 is 0.5:1.

13. Despite extensive discussions during the hearing concerning FSR and height compliance, the Parties agreed that the development was compliant with both the height limit and FSR controls applicable to the Subject Site.

14. The Parties also agreed that there is no development control plan (DCP) currently applicable to the Subject Site.

15. A chronology of actions taken by Sutherland Shire Council (the Council) in drafting of a DCP (draft DCP 2015) to support the implementation of SSLEP 2015 was tendered as evidence during the hearing. This chronology included detail of two public exhibitions of the draft DCP, held in April/May 2015 and September/October 2015, and consideration by Council of issues raised in submissions following both exhibitions.

16. On 21 September 2015 Council resolved to adopt draft DCP 2015 as a policy for the purposes of assessing any development application lodged under SSLEP 2015.

17. The draft DCP 2015 was unable to be made by Sutherland Shire Council due to issues associated with Councillors’ pecuniary interests. On 21 November 2016 the Council resolved to delegate the making of draft DCP 2015 to the Secretary of the Department of Planning and Environment. At the time of this hearing draft DCP 2015 remained unmade.

18. Notwithstanding this, the Respondent noted that the Council continued to rely on draft DCP 2015 as a policy for the purposes of assessing any development applications.

Contentions

19. During the hearing the principal contentions between the Parties, were :

1. Non-compliance with the so-called 60% rule.

1. This contention related to a control, established under draft DCP 2015, Chapter 3, Section 1 (Streetscape and Building Form), subsection 1.2 (Controls), clauses 11 and 12, concerning the scale of multi-storey dwellings and their location within a dual occupancy site.

2. Bulk and scale

1. This contention, while having some link to the contention described above [19(1)] related primarily to the interpretation of height and FSR controls within SSLEP 2015, and their application to the proposed development. As noted above [13] the Parties agreed that the proposed development is compliant with the both height and FSR controls.

3. Setbacks.

1. This contention related to compliance of the proposed development with the setback controls in draft DCP 2015 (Chapter 3, Section 2 (Building Setbacks), subsection 2.2 (Controls), clauses 2, 3 and 4), and specifically:

1. the compliance of the front setback, proposed to be 7.5m, and

2. compliance of the proposed setbacks between the middle two buildings (referred to as buildings 2 and 3) of the proposed development.

4. The natural landscape setting.

1. This contention concerned the consistency of the proposed development with the SSLEP 2015 objectives for land zoned E4, and the relationship of these objectives to the requirements concerning the potential for variations to front setbacks controls.

5. The weight that should be afforded to draft DCP 2015.

1. This contention concerned the weight that should be given to draft DCP 2015 in determining this matter.

20. I propose to deal with the contentions in the following order:

1. The weight to be given to draft DCP 2015;

2. Compliance of the proposed front setbacks ;

3. The natural landscape setting;

4. Compliance of the proposed internal setbacks;

5. Compliance with the so-called 60% rule.

21. As the Parties agreed that the proposed development is compliant with the controls relating to both height and FSR, I do not propose to address these matters further.

What weight to give to the draft DCP 2015?

22. As noted above [14], there is no DCP that currently applies to the Subject Site. This was agreed between the Parties.

23. However, draft DCP 2015 was drafted and, while not made as a DCP, has been adopted by Sutherland Shire Council as a policy for the assessment of development applications.

24. In considering the weight to be given to a planning policy, such as draft DCP 2015, the principles provided at [92] by McClellan CJ (as he was then) in Stockland Development Pty Ltd v Manly Council [2004] NSW LEC 472 (the Stockland judgement) are pertinent. The judgements of Commissioners in the cases of Hurley v Sutherland Shire Council [2016] NSWLEC 1630 (the Hurley judgement) and Frank and Susana Tomas v Ashfield Council [2016] NSWLEC 1183 (the Tomas judgement) were also raised in the context of this contention, and I will address these as well.

The Stockland judgement

25. In the Stockland judgement His Honor proposed the following principles for determining the weight that should be given to a ‘planning policy of council’:

1. the extent, if any, of research and public consultation undertaken when creating the policy;

2. the time during which the policy has been in force, and the extent of any review of its effectiveness;

3. the extent to which the policy has been departed from and prior decisions;

4. the compatibility of the policy with that the objectives and provisions of relevant environment planning instruments and development control plans;

5. the compatibility of the policy with other policies adopted by Council or by any other relevant government agency;

6. whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

26. As previously noted [15], a chronology associated with draft DCP 2015, and its adoption by Sutherland Shire Council as a policy for the purposes of development assessment, was tendered as evidence by the Respondent in this appeal, and its detail was not challenged by the Applicant.

27. Prior to its adoption as a policy on 21 September 2015, the Council had publically exhibited the draft DCP from late April to late May 2015. A total of 111 submissions were received in response to that exhibition. These were considered by Council in August and September 2015.

28. Following this, the draft DCP 2015, incorporating a number of amendments in response to submissions, was exhibited again between September and October 2015.

29. The chronology confirms that draft DCP 2015 was the subject of public consultation on at least 2 occasions, and that prior to its adoption as a planning policy, it had been amended in response to the submissions received during the first exhibition.

30. During the hearing, testimony was provided by two planning experts, Ms Beth Morris for the Respondent, and Mr Michael Ball for the Applicant.

31. Ms Morris, gave evidence that draft DCP 2015, prepared to support implementation of SSLEP 2015, had been applied consistently in the assessment of development applications following its adoption as a policy by Council. No evidence was produced by the Applicant to the contrary.

32. No evidence was presented to the effect that draft DCP 2015 was incompatible with any other policies adopted by the Council by any other policy of a relevant government agency;

33. While the Parties had differing perspectives on the interpretation of certain provisions of draft DCP 2015, no evidence was presented that draft DCP 2015 contained any significant flaws when assessed against conventional planning outcomes appropriate to the Subject Site or its broader locality.

The Hurley judgement

34. The matter of what weight should be given to draft DCP 2015 in a planning matter before the Court has previously been considered by Dickson C in the Hurley judgement.

35. This judgement was handed down shortly after the conclusion of the current appeal hearing. As a consequence, the Parties were invited to make written submissions in relation to the weight to be given to draft DCP 2015 in the current appeal.

36. In the Hurley judgement, the Commissioner confirmed [at 33], consistent with this appeal, that there is no current DCP for land that is the subject of SSLEP 2015.

37. The Hurley judgement concerned the deletion of one condition of consent for a development approval issued by Sutherland Shire Council. There were no objectors to the appeal, and the Commissioner made note of this fact in her judgment at [9].

38. In the current appeal Council’s Planning Expert, Ms Morris, gave testimony that that draft DCP 2015, had been consistently applied by Council since its adoption as a policy in September 2015.

39. Ms. Morris also noted that the draft had been amended in response to the first of the public exhibitions. She gave as an example of amendments made, the re-introduction of the provisions limiting two storey dual occupancy developments to a portion of the site. In the most recent version of draft DCP 2015 this limit is set at 60% whereas in the previous DCP 2016, this restriction had been set at 50%.

40. Additionally, the Respondent tendered as evidence a chronology associated with the preparation and application of the draft DCP 2015.

41. It is unclear whether the Commissioner in the Hurley judgement had the above [38-40] planning evidence, the detail of which not challenged by the Applicant, before her.

42. The Commissioner in the Hurley judgement concluded that the policy (draft DCP 2015) may be used to inform (the) process of assessing the likely impacts of development under s.79C(1)(b) and the suitability of the site under s.79C(2)(c) but should not be given significant weight in the determination of that application.

43. The Commissioner based her conclusion on the following points:

1. council’s consideration of the draft policy/DCP 2015, and in particular the results of the recent public exhibition, had not been finalised;

2. the resolution to refer the matter to the NSW Department of environment and planning includes a reasonable uncertainty as to the final outcome in relation to the controls will govern siting of buildings. In particular in R2 low density zone, the request to include a further amendment in the final document to require 2 story dwellings to be contained within the front 60% of the allotment may influence the final form of the setback controls.

44. Notwithstanding the first of these reasons, I have concluded that, for the purposes of this appeal, and based on the evidence before me, the public exhibition of the draft DCP 2015 and the amendment of the draft following the first exhibition, support weight being given to draft DCP 2015 in the assessment of the current application.

45. In relation to second of the Commissioner’s reasons I note that the appeal in Hurley v Sutherland Shire Council concerned land zoned R2. The appeal currently before me relates land zoned E4, and so different to that considered by the Commissioner the Hurley judgement.

46. Finally the Commissioner concluded that she could give weight to the draft DCP 2015 in relation to assessing the likely impacts of development under s.79C(1)(b) and the suitability of the site under s.79C(1) (c) of the EPA Act.

47. While the current appeal is also concerned with assessing likely impacts of development under s.79C(b) and the suitability of the site under s.79C(c), the submissions of the five objectors suggest that consideration of public interest under s.79C(1)(e) of the EPA Act is also particularly relevant in terms of the current development application.

48. I note that consideration of s.79C(1)(e) was central to the considerations of McClellan CJ in the Stockland judgment. More specifically, His Honor noted [at 89-91] the following points in relation to the decision of Mason P in the case of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] 129 LGERA 195:

89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not “the only means of discerning planning policies or the 'public interest'” (at LGERA 210).

90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.

91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options…….

49. His Honor then went on to consider the application of these points to the matter that was the subject of his judgment.

The Tomas judgment

50. The Applicant said that little weight should be given to draft DCP 2015 the current appeal and cited the conclusions of the Commissioner in the case of Frank and Susana Tomas v Ashfield Council [2015] NSWLEC1009 (the Tomas judgement) in support of that position.

51. The Tomas judgement concerned an appeal against the refusal of a development application by Ashfield Council. Within that judgement, the Commissioner noted the decision of a Commissioner in Four2Five Pty Ltd v Ashfield Council wherein it was concluded that an interim development assessment policy should be given little weight.

52. However that conclusion had been based on a policy document that had not been advertised for public comment and the Commissioner had noted that this was a relevant consideration in relation to the principles established by McLellan CJ in the Stockland judgement.

53. This is a different situation to the current appeal wherein draft DCP 2015 has been the subject of two public exhibitions, and revision based on submissions made during the first of those exhibitions. Consequently, I conclude that there is little of relevance in the Tomas judgement to the current appeal.

Conclusion: weight to draft DCP 2015

54. Having given consideration to the above points, I conclude that I should give significant weight to the draft DCP 2015 based on the following reasons:

1. draft DCP 2015, adopted as a planning policy by Sutherland Shire Council in September 2015, has been carefully thought out in order to support the implementation of SSLEP 2015;

1. draft DCP 2015 has been the subject of detailed consultation with stakeholders through public exhibition;

2. draft DCP 2015, as an adopted planning policy of Council, has been in force for more than a year and has been applied consistently by the Council in its assessment of development applications;

3. no evidence was produced that the Council had departed from use of the policy in reaching decisions in respect of development applications;

4. draft DCP 2015 is compatible with the objectives and provisions of SSLEP 2015;

5. no evidence was tended to suggest that draft DCP 2015 was incompatible with other policies adopted by Sutherland Shire Council or indeed other government agencies;

6. draft DCP 2015 does not contain any significant flaws when assessed against conventional planning outcomes accepted is appropriate for the site for the area affected by the document. Indeed, as draft DCP 2015 was prepared in support of SSLEP 2015. Its structure and content is consistent with other DCPs adopted by other Councils.

55. Finally, I note the conclusion of McClellan CJ in the Stockland judgement at [95]:

95 Where, as in the present case, urban design controls which may not have been embodied in a development control plan have, nevertheless, been carefully thought out after detailed consultation with relevant parties, a council should make decisions which give them practical application. Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters.

56. Notwithstanding my finding that significant weight should be given to draft DCP 2015, the requirement that I give full consideration to the broader requirements of the EPA Act and SSLEP 2015 remains.

57. In that regard, the Applicant said that in applying the provisions of draft DCP 2015, the provisions of the EPA Act s79C(3A) were of relevance. That section reads:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Is the front setback compliant?

58. Under draft DCP 2015 the relevant setback controls applicable to this appeal are provided within Chapter 3: Dual Occupancy. Specifically, section 2 of that chapter provides the following objectives for building setbacks:

1. establish the street proportions;

2. encourage articulated building forms and ensure garages do not dominate the streetscape;

3. enhance the setting for buildings by providing opportunities the landscaping and infiltration of stormwater and protecting landscape qualities and character of the locality;

4. promote residential amenity from residents and neighbours including access to natural light and ventilation and both visual and acoustic privacy;

5. provide adequate access for emergency services within the side setback in bushfire prone areas;

6. alleviate the visual intrusion of building block on neighbouring properties;

7. minimise view loss from adjoining or nearby properties.

59. The relevant front (street) setback controls are provided within Chapter 3, section 2.2 of draft DCP 2015. The control requires a street setback of ’7.5 m or the established street setback*’.

60. The asterix associated with the control is a reference to a deleted paragraph within draft DCP 2015 that reads:

* A street setback less than 7.5 m may be permitted where the established street setback within a street is less than 7.5 m, and a setback greater than 7.5 m may be required where the established street setback within a street is greater than 7.5 m.

61. The control also says:

the established street setback is the average distance of the setbacks of the nearest two dwelling houses having the same primary road boundary and located within 40 m of the lot of which the dwelling house is erected.

62. The proposed development in this appeal has a proposed setback of 7.5 m. The Parties agreed that the established street setback is 11 m.

63. The Parties acknowledged that the wording of this control is ambiguous, and that, as a result, the parties had differing positions with respect its interpretation.

64. The Applicant argued that the control established a minimum street setback, and said that the control did not explicitly say that the setback should be the greater of the 7.5m minimum or the established street setback.

65. The Applicant further contended that the text of the deleted paragraph indicated that it was not the intent of Council to require a setback aligned to the established street setback.

66. The Applicant said that the proposed development complied with the control because it met the minimum street setback requirement in that control of 7.5m.

67. The Respondent acknowledged that the control was not drafted as clearly as it might have been and said that in a situation where ambiguity existed in the wording of the control the intent of the control should be drawn from a wider reading of the section of the control within which it is contained.

68. In this regard the Respondent noted Chapter 3, clause 2.2.4 of draft DCP 2015, which states that:

where a development as a street setback of 7.5 m or greater, building elements may encroach 1.5 m into the front setback from maximum of one 3rd of the area of the facade, forming an articulation zone.

69. The Respondent said that there would be no reason to have this paragraph within the control, worded as it is, unless the control was intended to be the greater of 7.5m or the established setback.

70. The Respondent concluded that, based on this broader reading of the control, the required front (street) setback for proposed development is 11m, being the established street setback agreed by the Parties.

71. Notwithstanding this, clause 2.2.3 of the setback control says that:

A variation to the established street setback may be approved where:

the setback proposed does not have adverse consequences for the landscape quality of the streetscape, and

the proposed variation does not has have adverse impacts on the adjacent properties in terms of solar access, visual intrusion, you loss or privacy;

72. The inclusion of these provisions suggests to me that the intent of the control is that the established street setback should be the default setback for proposed developments, and variations from this should be assessed against these provisions. This also supports the position of the Respondent.

73. Finally, the objectives for building setbacks in draft DCP 2015 include, the following:

…..

3. Enhance the setting for the building by providing opportunities for landscaping and infiltration of stormwater and protecting the landscape qualities and character of the locality

……..

6. Alleviate the visual intrusion of building bulk on neighbouring properties

74. These objectives, in my opinion, further support the position of the Respondent as they require consideration of potential adverse impacts of a proposed development on landscape qualities, local character and the amenity of neighbouring properties.

75. Taken together, I find that these paragraphs support the conclusion that the intent of the setback control is to require that the street setback of a proposed development should be taken from the established street setback.

76. The setback controls also provide that the established street setback may be varied where the proposed reduction in setback does not have adverse consequences for landscape quality of the streetscape, and where the proposed variation does not have adverse impacts on adjacent properties in terms of solar access, visual intrusion, you loss or privacy.

77. It is therefore necessary to consider whether the 7.5m front setback proposed for the development, can meet the requirements for variation to the setback controls set out in clause 2.2.3 of Chapter 3 within draft DCP 2015, and in particular those related to landscape quality of the streetscape.

What are the impacts on natural landscape setting?

78. Under clause 2.2.3, for approval of a variation to front setback, the proposed setback should not have adverse consequences for the landscape quality of the streetscape.

79. The potential impact of a 7.5m front setback was the subject of evidence by the arboricultural experts in the hearing, Mr James Van Breda for the Respondent and Mr Ross Jackson for the Applicant.

80. A particular focus of the evidence was the potential impact of the proposed 7.5 m front setback on a group of trees at the front of the Subject Site and presenting to Saunders Bay Road.

81. In particular, the evidence centred around 3 trees referred to in the evidence Tree 3, Tree 4 and Tree 5. These trees are the following species:

1. Tree 3: Cinnamomum camphora

2. Tree 4 Angophora floribunda

3. Tree 5: Eucalyptus botryoides

82. The experts agreed that within this group of trees, Tree 4 was the most significant. It was the evidence of Mr Van Breda that Tree 4 had an age of between 60 and 70 years and was endemic to the Sutherland Shire. His assessment was that the tree had not been planted but was a natural occurrence on the Subject Site.

83. The experts also agreed that, should the proposed development receive consent, all three of those trees should not be retained.

84. There was significant discussion between the Parties and the experts in relation to the differences between a proposed development with a front setback of 7.5 m and a proposed development with a front setback at the established street setback of 11 m.

85. The evidence of the experts was that in either scenario Trees 3 and 5 should be removed for differing reasons. The expert’s noted that it was Council’s policy to remove Cinnamomum camphora trees, such as Tree 3, where possible. The experts also agreed a development with either setback would adversely impact on tree protection zone of Tree 5 and so would require its removal.

86. The experts further agreed that should a 7.5m front setback, as proposed, receive consent, then Tree 4 would not remain viable and should be removed.

87. There was a difference of views as to whether Tree 4 could be retained under an 11 m front setback scenario.

88. Notwithstanding this difference of opinion, in this appeal the proposed development only has a proposed front setback of 7.5 m, and it was agreed by the arboricultural experts that this would require the removal of each of Trees 3, 4 and 5.

89. As a consequence I conclude that the proposed development, with its proposed 7.5m front setback, would have adverse consequences for the landscape quality of the streetscape of the subject site. Most notably this would be as a result of the removal of the group of trees, including tree 4. The experts agreed that Tree 4 was of significance in terms of its and size and age.

90. I further conclude that the proposed variation to the established street setback does not meet the requirements of clause 2.2.3 of the setback controls in section 2.2 of chapter 3 of the draft DCP 2015.

Are the internal setbacks compliant?

91. The Parties held differing position in relation to the adequacy of the internal setbacks between the four internal dwellings across the two proposed lots on the subject site.

92. The most significant of these differences related to the setback requirements between dwellings 2 and 3 at the rear of the proposed front lot and the front of the respectively.

93. Draft DCP 2015 Chapter 3 (clause 2.2.2) also provides setback controls for the rear of buildings and for dwellings on internal locks. These controls require that dwellings have a rear setback from the rear edge of the dwelling to the rear boundary of 6m. Additionally, there is a requirement for a 4 m front setback for dwellings on an internal lot.

94. As a consequence, the Respondent said that the separation between dwellings 2 and 3 should be 10 m rather than a separation of 6m as in the proposed development.

95. The evidence of Ms Morris was that, because the proposed development did not comply with these setback controls, the development would be more bulky than it might otherwise be and would have amenity impacts on neighbours.

96. The Applicant’s planning expert, Mr Ball, was not called on to refute this position in the hearing.

97. The Respondent also said that a 6m separation between dwellings 2 and 3 would have the consequence that any tree planted in this location would be no more than 3m away from either dwelling.

98. Mr Van Breda’s evidence was that an application to remove any tree within 3m of a dwelling would be approved by the Council under its tree controls. He noted that this placed at risk the security of any landscaping proposals in that location associated with the proposed development.

99. The Applicant did not agree with this position and said that the 6m setback between dwellings 2 and 3 was adequate, and would not give rise amenity impacts on neighbours in adjacent properties due to the specific configuration of the proposed development in relation to the siting of dwellings on the adjacent lots.

100. This position was challenged by Ms Morris who said that the proposed setbacks between dwellings would result in the neighbouring properties being presented with buildings of significant bulk, and that this would impact on their amenity. No expert evidence was called by the Applicant in the hearing to challenge this position.

101. Notwithstanding the differing positions of the Applicant and Respondent in relation to the potential impact of the proposed built form on neighbouring properties, the Parties did not dispute that the setbacks between buildings 2 and 3 were non-compliant with the setback controls of draft DCP 2015.

102. Having given consideration to the above points, and noting the evidence of the expert witnesses, and in particular the evidence of Ms Morris, in relation to the design of the proposed development and Mr Van Breda in terms of the potential implications of the non-compliant setback between buildings 2 and 3, I conclude that:

1. the setbacks of the proposed developments between dwellings 2 and 3 are non-compliant with the controls in draft DCP 2015;

2. this non-compliance does is would add to the bulk of the proposed development such that it may impact on the amenity of neighbouring properties;

3. this non-compliance may also place at risk the security of any landscaping proposals associated with the proposed development.

Compliance with the 60% rule

103. The final contention between the Parties related to streetscape and building form. Draft DCP 2015, Chapter 3, clause 1.2.11 (clause 1.2.12) provides:

11. Two or three story development is only permitted on the front of an allotment and may extend to a maximum of 60% of the depth of the site measured from the property boundary.

104. It was the evidence of Ms Morris, provided in the planning experts’ joint report, that the proposed development exceeds the requirements of this provision and extends to greater than 90% of the proposed 2 lots.

105. Notwithstanding the compliance of the proposed dwellings in relation to height and FSR controls, Miss Morris’ evidence in the joint report was that this breach would result in a two story built form which would dominate the site in terms of bulk and scale.

106. In her evidence, Ms Morris said that it was her opinion that the purpose of the so-called 60% rule was to provide visual relief to neighbours, to minimise visual intrusion, and to allow for landscape qualities on the subject site to dominate. Based on this she concluded that the extent of the proposed two story building form would not enhance the natural landscape setting of the locality which she noted was characterised by one and two storey dwelling houses with large yards.

107. The Respondent noted that clause 1.2.11 of Chapter 3 was similar to a control that had existed in the previous Sutherland Shire DCP (DCP 2006) and which provided for a maximum 50% site coverage by two and three storey developments.

108. The Respondent further noted that clause 1.2.11 was not included in the pre-exhibition draft of draft DCP 2015, and that its inclusion in the latest draft had been in response to public submissions during the exhibition.

109. The Applicant drew attention to clause 1.2.12 of draft DCP 2015. This clause provides:

12. Despite 11, where the topography, orientation or context of the site would allow for a better outcome to be achieved through accommodating 2 story developments in the rear portion of the allotment, a variation may be considered if this solution would not result in a significant loss in the privacy or amenity of the joining properties.

110. The expert evidence of Mr Ball, provided in the planning experts’ joint report, was that the proposed development complied with the circumstances in clause 1.2.12, including in relation to the orientation, topography, context and a lack of adverse privacy and overshadowing impacts on neighbours.

111. Mr Ball’s evidence was also that, in his opinion, the locality of the subject site was ‘in transition’, and that the proposed dwellings 2 and 4 would have similar or lesser impacts than would be the case from a single dwelling house complying with the minimum provisions of draft DCP 2015.

112. In response, Ms Morris said that the E4 zoning permits a narrow range of residential uses and the subject site is not considered by Council to be in an area of transition.

113. She noted that whilst the draft DCP 2015 control did allow for a variation to the two storey control (for a basement or third storey) such variations should be compatible with the established scale or character of the locality and should not adversely affect the amenity, streetscape and landscape settings of the immediate locality.

114. Ms Morris said that the non-compliance with the 60% rule within draft DCP 2016 was indicative of the development being of inappropriately large for its location.

115. Having given consideration to positions of the Parties, and the expert evidence of Miss Morris and Mr Ball, both in their joint report and during the hearing, I prefer the evidence of Miss Morris in relation to this matter. Her testimony was based on experience working with the Council, and was not contradicted by expert evidence from Mr Ball during the hearing.

Conclusion

116. Based on the above, I am satisfied that:

1. draft DCP1015, adopted by Council for the assessment of development applications, should be given significant weight in relation to the determination of the proposed development at 75 Saunders bay Road, Caringbah South.

2. the proposed development does not comply with the front set back controls of draft DCP 2015 Chapter 3 (clause 2.2.2) and does not fulfil the requirements for that setback to be varied 9clause 2.2.3).

3. the proposed development does not comply with internal setbacks controls of draft DCP 2015 Chapter 3 (clause 2.2.2) between buildings 2 and 3.

4. the proposed development does not comply with the 60% rule of draft DCP 2015 Chapter 3 (clause 1.2.11), and does not satisfy the requirements for variation, to the extent proposed, as the scale of the resulting development may result in a significant loss of amenity to adjoining properties.

5. as a consequence of these non-compliances, the application for development at 75 Saunders Bay Road should be refused.

Orders

117. The Court orders that:   

1. The appeal is dismissed.

2. Development consent for DA15/1594 is refused.

3. The exhibits are returned with the exception of Exhibit 1.

………………………….

Michael Chilcott

Commissioner of the Court

Decision last updated: 15 June 2017