Appel v Randwick City Council

[2024] NSWLEC 1652

Land and Environment Court

New South Wales

Medium Neutral Citation:

Appel v Randwick City Council [2024] NSWLEC 1652

Hearing dates:

29 and 30 July 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits, other than 5, 8, and C, are returned.

Catchwords:

APPEAL – development application – attached dwellings – streetscape – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021

Randwick Local Environmental Plan 2012, cll 2.2, 4.1, 4.3, 4.4, 4.6, 5.10, Sch 5

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Jeffrey Appel (First Applicant)
Freya King (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
N Eastman SC (First and Second Applicant)
M Astill (Respondent)

Solicitors:
Tyrrells Planning Law (First and Second Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/221487

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Jeffrey Appel and Freya King (First and Second Applicant respectively, together the Applicant), against the deemed refusal of Development Application DA 4/2023 (the DA) by Randwick City Council (the Respondent).

2. At the date of its lodgment on 16 January 2023, the DA sought consent for:

1. Demolition of existing structures, comprising two detached houses.

2. Construction of four attached residential dwellings, each part two- and part three-storeys in height, each with two off-street parking spaces, and associated works.

3. Torrens title subdivision of two existing lots into four.

3. The proposed development is situated at 19-21 Dolphin Street Randwick and is legally described as Lots 17 and 17A in DP858 (the site).

4. Prior to the hearing, on 21 May 2024 the Court granted leave to the Applicant to amend the DA, and on 24 July 2024 again granted leave to the Applicant to further amend the DA.

5. The final amended DA remains similar in most aspects as the original DA - being four attached residential dwellings, each part two-storey and part three-storeys in height, each with shared driveway access and on grade car-parking space, each with a car lift and associated basement parking - but incorporates a number of design changes intended to resolve, or reduce the number of, the Respondent’s contentions.

6. The amended architectural plans have been prepared by FMB Architects (now marked as latest Revision 7 and with a latest date of 13 July 2024). These architectural drawings form a portion of Exhibit C in these proceedings and are the subject of the appeal.

The site and its context

7. The site is located on the northern and lower side of Dolphin Street Randwick - between Judge Street to the west and Courland Street to the east. It is close to (and approximately opposite) the northern termination of St Luke Street, which forms a T intersection with Dolphin Street.

8. The site currently comprises two lots, each with an existing two-storey house, which - due to falling topography - present to Dolphin Street as single-storey structures.

9. The two lots making up the site are regular in geometry, each with an area calculated by survey of 413.2sqm resulting in a total site area of 826.4sqm. Together, the lots making up the site present a 20.12m frontage to Dolphin Street and have a depth of approximately 41.07m.

10. The site has a pronounced topography with a significant cross fall from the southeast corner addressing Dolphin Street at approximately RL26.36 and falling towards the northwest rear corner to approximately RL20.52, representing a maximum change in level of approximately 6m.

11. The rear of the site is flood prone and forms a natural depression that continues across adjacent properties and conveys overland flow during particular rain events.

12. There are two immediately neighbouring buildings along the Dolphin Street frontage - at numbers 17A and 23 - and a single rear neighbouring building with an address on Coogee Street.

13. The neighbouring property to the west, at 17A Dolphin Street, is set lower than the subject site and presents to Dolphin Street as a single-storey detached Federation-era bungalow.

14. The neighbouring property to the east, at 23 Dolphin Street, is set higher than the subject site and also presents to Dolphin Street as a generally single-storey detached dwelling with garage.

15. In the immediate vicinity of the site is a mix of existing lower and medium density residential development types. On the northern side of Dolphin Street further towards the east of the site are a number of older, walk-up apartment buildings, typically presenting two storeys to the street and spaced further apart than the lower density detached houses.

16. Also, on the northern side of Dolphin Street but to the west of the site is a row of single detached dwellings of a comparable scale to those currently situated on the subject site.

17. The existing dwellings at 21 Dolphin Street (within the site) and 23 Dolphin Street (neighbouring the site), each benefit from a driveway connection between the carriageway and an existing garage set at the front of each of the properties.

18. Number 19 Dolphin Street has no such driveway connection given the steepening topography and presence of a locally listed heritage sandstone retaining wall that serves to separate the carriageway levels from the adjacent footpath and site boundary levels.

19. From 19 Dolphin Street, and west to the intersection with Judge Street, no other property on the northern side of Dolphin Street has a driveway connection to the vehicular carriageway. Instead, each of these properties is separated from the carriageway by the heritage sandstone retaining wall and densely planted verge. The footpath at the base of the sandstone retaining wall provides pedestrian-only access to properties that address this part of Dolphin Street.

20. On the opposite, high side of Dolphin Street, a similar mix of lower and medium density dwellings is evident, often set above and behind garages directly addressing the street.

21. The interaction between the underlying subdivision pattern, the mix of dwelling types, and the high- and low-side topography of the street, results in a particular urban character, particularly as the Dolphin Street carriageway narrows from the site and runs to the west.

22. In this immediate vicinity, and on the north side of the street, the densely planted verge, the presence of the heritage sandstone retaining wall, the physical separation between the carriageway and footpath, and the low-set houses with reasonably consistent front setbacks to Dolphin Street work together to establish a cohesive and distinctive streetscape character.

23. The site comprises no identified heritage items, nor is it in any Heritage Conservation Area, but it is directly adjacent to the sandstone retaining wall which is situated within the road reservation and is locally listed as a heritage item (L353), identified as “Dolphin Street sandstone retaining wall and embankment” at Sch 5 of the Randwick Local Environmental Plan 2012 (RLEP).

24. I note at the outset that the streetscape qualities and character of Dolphin Street described in these preceding paragraphs figures centrally in the dispute between the parties and I will return to this topic.

The relevant planning controls

25. The key relevant statutory planning and development controls are as follows:

• EPA Act

• Environmental Planning and Assessment Regulation 2021 (EPA Reg)

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) (as saved)

• State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience)

• RLEP

• Randwick Comprehensive Development Control Plan 2013 (RDCP)

26. Pursuant to cl 2.2 of the RLEP - Zoning of land to which the Plan applies - the site is mapped within the Zone R3 Medium Density Residential land use area. Development for the purposes of attached residential dwellings is permissible with consent.

27. Pursuant to cl 4.1 of the RLEP - Minimum subdivision size - there is no minimum lot size applicable to the amended DA as this development standard does not apply to attached dwellings.

28. Pursuant to cl 4.3 of the RLEP - Height of buildings - the site is mapped with a 9.5m maximum height of building development standard.

29. Pursuant to cl 4.4 of the RLEP - Floor space ratio (FSR) - the site is mapped with a FSR development standard of 0.75:1.

History of the DA

30. The Respondent’s Amended Statement of Facts and Contentions, dated 5 June 2024 and forming Exhibit 5 in these proceedings, sets out the history of the DA. A concise summary follows.

31. The DA was lodged by the Applicant with the Respondent on 16 January 2023 and, pursuant to cl 4.6 of the RLEP, was accompanied by a written request seeking to vary the height of building development standard.

32. The DA was publicly exhibited by the Respondent for fourteen days. A total of thirty-six submissions were received by the Respondent raising issues including:

1. Safety concerns - particularly for children and pedestrians accessing the nearby school - arising from use of the proposed driveway at a complex and dangerous intersection where traffic congestion exists.

2. Excessive extent of hardstand proposed for vehicle manoeuvring and parking, which results in non-compliant front building setback and inadequate landscaping.

3. The elevated position of this extent of hardstand creates unreasonable impacts upon the neighbour at 17A Dolphin Street.

4. Concerns the proposed car lifts are impractical and will lead to greater pressure for on-street parking and increased danger for children given the unfenced hardstand area.

5. Concerns for noise generated by the proposed car lifts.

6. Construction phase impacts, including traffic generation and potential presence of hazardous materials.

7. The proposal is inconsistent with the character of the streetscape in an area that is unique and has been considered for conservation status.

8. Excessive building height and wall height.

9. Excessive streetscape bulk.

10. Overshadowing impacts, including of existing solar panels.

11. Privacy and cross viewing impacts.

12. Insufficient and incorrectly calculated landscape and deep soil areas, and excessive removal of vegetation at the rear of the site and on the street verge.

13. Inadequate floor to ceiling heights.

14. The potential for infill of the proposed subfloor areas and roof space.

15. Proximity to, and impacts upon, the heritage listed sandstone retaining wall.

16. Exacerbation of flooding effects.

17. Lack of a geotechnical report, fauna report and noise report for proposed car lifts.

18. Difficulties in waste collection and transporting rubbish bins to the street.

19. Miscalculation of FSR.

20. Potential isolation of 23 Dolphin Street.

33. On 11 May 2023, the Respondent’s Design Excellence Advisory Panel (the Panel) reviewed the DA and provided advice to the Respondent stating:

“The Panel believe[s] the current proposal has several challenges associated with the presentation to Dolphin Street, largely attributed to the extent of hardscape required to accommodate car parking for each dwelling. The overall form of the buildings and architectural detailing could be more sympathetic to the character of the local area, including the use of materials, roof profiles and elevational treatment.”

34. The Panel also recommended accommodating a single car park entry in order to allow for a reduced front setback and rooms addressing the street, and raised concerns for the ‘L’ shaped rear yards, and privacy concerns for neighbouring rear gardens.

35. On 12 July 2023, the Applicant appealed to the Court against the Respondent’s deemed refusal of the DA.

36. As noted earlier in this judgment, on 21 May 2024, the Court granted leave to the Applicant to amend the DA. The amended DA at that date forms Exhibit B in these proceedings.

37. Joint reports have been prepared in response to the DA as amended at that date. The experts’ reports include:

1. Joint Report - Engineering, filed with the Court on 3 July 2024 and forming Exhibit 6 in these proceedings.

2. Joint Report - Landscape, filed with the Court on 5 July 2024 and forming Exhibit 7 in these proceedings.

3. Joint Report - Planning, filed with the court on 12 July 2024 and forming Exhibit 8 in these proceedings.

38. After these joint reports were filed, and by way of a Notice of Motion on 24 July 2024, the Court again granted leave to the Applicant to further amend the DA and rely upon amended plans and documents. The final amended architectural drawings are included within Exhibit C and now form the subject of the appeal.

39. The final series of design amendments is intended to address a number of more minor matters that arise from the agreement of the experts during their joint conferencing. The final amendments include the removal of the rear deck from each of the four dwellings at lower ground level, clarification of the extent of landscape and deep soil areas, the introduction of a threshold hob at each dwelling to mitigate against flood impacts, and clarification of the proposed retention of an existing sewer vent pipe on the eastern boundary.

40. The features of the final amended DA are as follows:

1. The proposed construction of four terrace house dwellings, referred to as TH1 at the east of the site, through to TH4 at the west.

2. TH1 and TH4 are identical mirror-imaged plans each set 900mm from the site’s eastern and western boundary respectively.

3. TH2 and TH3 are identical mirror-imaged plans each attached on both sides and set toward the centre of the site.

4. All four dwellings are approximately equivalent in Gross Floor Area (GFA) and each have a similar general arrangement.

5. Each dwelling generally presents to Dolphin Street with a similar dwelling width of approximately 4.5m and similar architectural expression. The proposed front building setback is 7.1m.

6. Each dwelling comprises three split levels, arranged with a front carport and associated hardstand at ground level, recessed dwelling entry, stairs down to a combined kitchen, living and dining space, and elevated rear terrace.

7. Each dwelling has a lower ground level served by centrally located internal stair, with single garage (accessed by car lift from the carport above), stairs to a bathroom, laundry and rear bedroom, and with access to the rear yard.

8. Each dwelling also has an upper level served by the centrally located internal stair, with master bedroom and ensuite to the rear (and balcony in the case of TH2 and TH3), a study nook and second street-facing bedroom with ensuite (and balcony in the case of TH2 and TH3) towards Dolphin Street.

9. The final amended DA also proposes subdivision to create four new lots, and given the approximately equivalent GFA proposed in each dwelling and the uniform FSR control of 0.75:1 across the site, each resultant lot is proposed to be approximately equivalent in area.

10. However, given that TH1 and TH4 are to be situated on lots that are 900mm wider than the associated dwelling (to establish side setbacks to the east and west), they are also proposed to be shorter in length to compensate and maintain compliance with the FSR control.

11. In turn, this results in each of the two central dwellings (TH2 and TH3) being associated with an ‘L’ shaped lot returning behind the rear of the lots accommodating TH1 and TH4 respectively.

12. Given this proposed subdivision pattern, and despite the four dwellings presenting a consistent rear building line, the rear setback differs by virtue of the ‘L’ shaped lots at TH 2 and TH3.

13. Rear setbacks are therefore 8.2m for TH1 and TH4, and approximately 12.4m for TH2 and TH3.

14. The four dwellings each comply with the 9.5m height of building development standard.

The issues

41. The contentions pressed by the Respondent are found in the amended statement of facts and contentions dated 5 June 2024 (Exhibit 5 in these proceedings). These contentions were compiled in response to the first amended DA (Exhibit B) and are summarised below:

1. FSR and Subdivision - the amended DA should be refused because the desire to meet the FSR development standard set out at cl 4.4 of the RLEP results in an unacceptable and unusual subdivision pattern which delivers poor amenity to the private open spaces at the rear of the dwellings and non-compliances with RDCP controls.

2. Flooding - the amended DA should be refused because it does not satisfy flooding and overland flow engineering requirements, which are not addressed by the submitted Flood Risk Management Report. The amended DA is not consistent with the objectives of cl 5.21 of the RLEP.

3. Earthworks - the amended DA must be refused as insufficient information has been provided to properly assess the matters set out at cl 6.2(3) of the RLEP.

4. Earthworks - the amended DA should be refused because it is inconsistent with the relevant objectives and controls of s 4.12, Pt C2 of the RDCP relating to earthworks.

5. Parking - the amended DA should be refused because the parking and manoeuvring area has an unacceptable impact on the streetscape character.

6. Setbacks - the amended DA should be refused because the proposed setbacks are inconsistent with the relevant objectives and controls of s 3.4, Pt C2 of the RDCP and lead to unacceptable impacts on neighbours and the public domain.

7. Building Design - the amended DA should be refused because the building design is inconsistent with the relevant objectives and controls of s 4, Pt C2 of the RDCP.

8. Amenity - the amended DA should be refused because it creates unacceptable impacts on amenity for neighbours and the local community and is inconsistent with relevant provisions of the RLEP and RDCP in respect to amenity issues including solar access, overshadowing and visual privacy.

9. Landscaping - the amended DA must be further amended to reflect the removal of tree T5 on the boundary of 17A Dolphin Street, which has occurred since the DA was lodged.

10. Landscaping - the amended DA should be refused because the proposed landscaping is insufficient to satisfy the requirements of the RDCP and does not provide suitable amelioration of the extent of the proposed hardstand and vehicle manoeuvring area to the public domain.

11. Landscaping - the amended DA should be refused because the proposal has not demonstrated that the landscaping in the rear overland flow path will not lead to unacceptable upstream and downstream flooding impacts. Additionally, the amended DA results in poor amenity for the rear yards of the four dwellings.

12. Public Domain Interface - the amended DA should be refused because it will have a negative effect on the public domain interface.

13. Public Interest - the amended DA should be refused because, for the reasons above, it is not in the public interest.

14. Insufficient Information - the amended DA should be refused as insufficient information has been provided to allow for the proper assessment of the proposal, including flooding impacts, acoustic impacts of the proposed car lifts, geotechnical conditions, the extent of overshadowing and provision of scaled plans.

42. Recognising that the final amended DA (Exhibit C) was prepared and filed with the Court subsequent to the preparation of the amended statement of facts and contentions, in his opening submissions for the Respondent, Mr Astill confirmed that a number of contentions are now resolved, no longer pressed or have narrowed.

43. Accordingly, Contentions 2, 3, 4, 9 and 11 are agreed to be resolved, whilst Contentions 5, 6, 8 and 14 have narrowed in their scope.

44. At its essence then, this matter can be reduced to a series of three related questions regarding the merits of the proposal:

1. Streetscape impacts - whether the proposed extent of hardstand necessary for vehicle manoeuvring in front of the four dwellings, the resultant building line and setback created to Dolphin Street, the dominance of the four proposed carports, and the uncharacteristic architectural form and expression will have an unacceptable negative impact on the streetscape presentation.

2. Impacts upon neighbours - whether the relationship of elevated hardstand area, the proposed built form, wall height, bulk and scale as it presents to side boundaries, in concert with 900mm side setbacks, will have an unacceptable negative effect on the amenity, outlook and privacy of immediate neighbouring properties.

3. Amenity provided by rear yards - whether the shortfall in landscaped area, the proposed ‘L’ shaped lots and associated privacy and cross viewing impacts result in unacceptable amenity for residents.

45. If the Court were to form a view of satisfaction in response to each of these three questions, then the parties generally agree the final amended DA is otherwise in a form that would allow for the lawful grant of consent.

The evidence

Oral submissions from objectors

46. At the commencement of the hearing, the Court benefited from oral submissions made by a number of local residents. The Court also visited the subject site and nearby owners’ properties.

47. Each of these objectors had previously made written submissions to the Respondent, setting out their concerns with the DA (Exhibit 2), and used the opportunity to address the Court to reinforce these submissions, which included concerns for:

1. Excessive hardstand proposed for vehicle manoeuvring and parking, which results in a non-compliant front building setback and inadequate landscaping.

2. Vehicle access and safety concerns.

3. Traffic congestion.

4. Concerns for noise generated by the proposed car lifts.

5. Excessive building height, bulk and wall height.

6. Privacy and cross viewing impacts.

7. Proximity to, and impacts upon, the heritage listed sandstone retaining wall.

8. Exacerbation of flooding effects.

The expert planning evidence

48. The Court was assisted by experts in planning who conferred to prepare a joint report. The experts are Mr Anthony Betros for the Applicant and Ms Ros Read for the Respondent. Their joint expert report forms Exhibit 8 in these proceedings.

49. At pars 12-21 of the joint report the experts set out the extent of their agreement, which includes that the final amended DA meets the relevant development standards for building height and FSR (however relying upon an irregular subdivision pattern at the rear to achieve FSR compliance for each lot).

50. The planning experts also agree that the final amended DA complies with relevant development controls for solar access, both on the subject site and in maintaining acceptable levels of solar access to neighbouring properties.

51. Dealing firstly with the presentation and interface of the final amended DA to its Dolphin Street frontage (Contention 5), at par 42, Mr Betros sets out his reasons why the proposed arrangement of hardstand for vehicle access and manoeuvring is acceptable:

“…the car parking and access facilities do not dominate the property frontage, nor do they adversely detract from the streetscape character for the following reasons:

The proposal has a single driveway entrance to service the four dwellings. The driveway width of 5.5m accounts for only 27% of the site frontage. The proposed design solution thereby minimises the number/extent of driveways necessary to provide access to the four dwellings.

The single driveway entrance allows for contiguous landscaped areas across the majority of the site frontage (73%), either side of the driveway, which effectively screens the hard-surfaced turning areas in the front setback.

The updated landscape plan prepared by [Melissa Wilson Landscape Architects] MWLA includes [understory] planting with shrubs and hedging in association with canopy trees within the front setback, primarily along the site frontage. The Cheese Trees in the southwestern and south-eastern corners of the front setback will contribute to softening and screening of the front setback, as will the honey myrtle trees.

…such planting will largely screen the turning area and the car spaces themselves…[and]…confirm that the landscaped areas and associated built form will have a positive impact on the streetscape along this section of Dolphin Street.

It is also noted that the extent of landscaping within the front setback is approximately 25%, which is compatible with the requirement for low-density development under Part C1 of the [R]DCP. The landscaping provisions under Part C2 do not have a landscaping requirement in the front setback for attached dwellings or other medium-density typologies.

Such extent of landscaping in the front setback is also substantially more effective than is typical along both sides of Dolphin Street…

The proposed outcome is also distinct and superior to [two] other attached dwelling developments, which have a separate driveway for each dwelling…at 4 Yorktown Parade, Maroubra (DA360/2021) and 3 Chester Avenue, Maroubra (DA63/2022)…

The front setback area allows for forward ingress and egress of the vehicles associated with the [four] dwellings on the site, thereby minimising potential safety impacts with the pedestrian pathway in front and on either side of the subject site to the east and west. The shuffling of cars for each of the dwellings can be carried out entirely within the front setback, which is superior to the above-mentioned attached dwellings elsewhere in the municipality and in the other garage examples along Dolphin Street. Such an outcome is desirable from a safety perspective for pedestrian and vehicular traffic along the footpaths and roadway.”

52. In response, Ms Read sets out her view at pars 43-44 of the joint report, that the proposed streetscape presentation is not acceptable:

“[Ms Read] considers that the large extent of paved area and the minimal width of landscaping in the front setback results in the parking area visually dominating the property frontage and detracting from the generally otherwise garden setting of property frontages within the area. This detracts from the streetscape character and leads to the parking area being inconsistent with the objective in [S]ection 6 of Part C2 of RDCP 2013.

Whilst [Ms Read] agrees that parts of Dolphin Street [have] a significant lack of landscaping in the front setback including immediately opposite the site…that is not the case for the quite particular location for which the site provides the entry – the small scale dwelling houses separated from the Dolphin Street frontage by the heritage stone wall. Those dwellings present as a landscaped frontage in their front setbacks. The manoeuvring area will be most clearly visible from those in cars turning left into Dolphin Street from St Luke Street and due to the angle of vision the majority of the view will be dominated by the paved area. Likewise, pedestrians will clearly see the extent of the paved area as they walk to the west.”

53. Turning next to the question of the proposed building line and front setback to Dolphin Street (Contention 6), Mr Betros - at pars 64-66 of the joint report - sets out his view that in the absence of a clear and consistent pattern of front setbacks in the immediate vicinity of the site, the final amended DA should be assessed on its merits.

54. Specifically, Mr Betros says:

“The site and adjoining properties are dwelling houses in an R3 [M]edium [D]ensity Residential zone. The replacement of dwelling houses with medium-density housing represents the desired future character. As noted from the redevelopment of dwelling houses with medium density housing on the subject site, nearby at 18 Dolphin Street and in surrounding areas, the area is considered to be undergoing transition. The DCP determines that, in such instances, the front setback will be determined on a merit basis. Notwithstanding, demolition and new replacement dwellings or substantial alterations and additions could be carried out, as evident from that carried out at No. 3 Dolphin Street.

On merit, the proposed front setback is appropriate as it provides for landscaping in the front setback (25% of the frontage, which is compatible with the landscape controls for the adjoining dwellings to the west), allows for effective canopy tree and other vegetation, allows for forward ingress and egress of vehicles whilst the increased front setback (when compared with existing nil/limited front setback) provides for visual relief, thereby contributing to the character of the neighbourhood.

Th proposed [two]-storey presentation with effective landscaping in the front setback is also compatible and even subservient to the form and scale of the residential flat buildings to the east…”

55. In contrast, at pars 86 and 87 of the joint report, Ms Read states:

“In [Ms Read’s] opinion the front setback is inconsistent with the prevailing front setback line of the street and the immediate neighbours and is therefore inconsistent with control 3.4.1i) of RDCP 2013 Part C2…

[Ms Read] considers that the large extent of driveway required to enable vehicular manoeuvring of four townhouses into the garages allows for only minimal landscaping and deep soil within the front setback which, together with the inconsistent front setback with the street, does not achieve the first objective of the setback controls in [S]ection 3.4 of Part C2 of RDCP 2013. Leaving aside the side pathways which are highly unlikely to remain landscaped given they provide access to the rear of TH1 and TH4 and the topography of the site, the landscaping in the front setback is largely restricted to a width of less than 2.0m which itself is divided in half by planters. The landscaping not in planters is highly susceptible to being driven over by the manoeuvring vehicles. Substantive planting is therefore limited to the two areas approximately 2.0m x 2.0m in each corner of the front setback in which two Glochidion ferniandi (cheese trees) are proposed. That low level of landscaping is inconsistent with the front gardens which prevail for the majority of the northern side of Dolphin Street in the vicinity of the site.”

56. Then addressing matters of building design and architectural expression as it presents to Dolphin Street (Contention 7), the planning experts set out their agreement at pars 93-97 of the joint report.

57. This agreement extends to the degree of building articulation provided to Dolphin Street, and that the flat roofed expression differs from roof forms evident elsewhere in Dolphin Street, particularly the immediate neighbours.

58. Mr Betros sets out his reasons (pars 98-99) for supporting the form and expression of the final amended DA:

“The street facade incorporates a high degree of modulation as the built form is fragmented into [four] distinct bays. The existing street trees and proposed landscaping will soften the appearance of the built form including its frontage to the streetscape, noting that there is no maximum building width control, as noted by the other examples of attached dwellings.

The site is not in a [heritage] conservation area and is within an area of mixed uses and forms. The montages demonstrate that the built form (including the flat roof) will sit comfortably in this varied streetscape which contains a mix of residential flat buildings, dwellings of various scales, dual occupancies [and] the town house development to the south west at 18 Dolphin Street…”

59. Ms Read draws attention, at pars 107-111, to her concerns for the shortcomings of the proposed form and expression of the final amended DA:

“[Ms Read] does not consider that [the use of proprietary coloured] louvres across the entire first floor street facade will enhance the streetscape and neighbourhood character because they have the potential to greatly reduce articulation to Level 1 and are not in a recessive colour.

[Inconsistent] with the current streetscape of that part of Dolphin Street, the building will provide for a double [storey] uninterrupted building frontage of 18.32m to the street – more than double the width of most of the dwellings in this area. Most of the residential flat buildings in the area are only approximately 10m wide with the largest at 2-4 Dolphin Street being approximately 18m wide on a block width of approximately 22m with approximate 2m side setbacks. 2-4 Dolphin Street provides an approximate 2m gap to each boundary. In contrast, the proposal maintains the narrow setbacks typical of single storey dwelling houses, although applying over a double storey 18.32m wide building.

[Ms Read] considers that the proposed front building facade fails to provide sufficient articulation to complement and enhance the streetscape and neighbourhood character and is therefore inconsistent with the objective of Section 4.1 of Part C2 of RDCP 2013.”

60. Addressing the proposed flat roof form, Ms Read notes that she:

“…would prefer that the roof and front facade included depth articulation to break up the 18.32m wide front facade and the roof which presents as a considerable bulk to the street within the immediate streetscape comprised of small dwellings.

[Mr Betros] has referenced various other consents relating to multi dwelling housing (18 Dolphin Street), a dual occupancy (28 Dolphin Street), a boarding house (23 Courland Street) and a residential flat building (16 Coogee Street). Each has a different approved use, are of different lot and building widths, located within a different immediate streetscapes and between different styles of buildings and uses to those which are relevant to this case. [Number] 18 Dolphin Street and 16 Coogee Street have a markedly more articulated roof form to the proposal. I am not convinced that pointing to some examples of approvals elsewhere is the most appropriate way to demonstrate compliance with the objectives and controls of the [R]DCP provisions in relation to this site.”

61. The last aspect of streetscape presentation, dealing with the proposed public domain interface (Contention 12), is discussed by the planning experts at pars 134 and 135 of the joint report.

62. Mr Betros states:

“…the provision of a single driveway access and associated forward ingress and egress to and from the site provides for a safe and desirable public domain interface. The increased front setback, when compared with the existing dwellings on the site, allow for relief of the built form and also allows for effective landscaping in the front setback. The street trees also limit the visibility of the hard surfaced areas in the front setback, as will fencing and landscaping.”

63. Ms Read relies on particular (d) of Contention 12 as the basis of her concern:

“The desirable elements of the existing streetscape are the consistent small scale Federation style dwelling houses which present as single storey dwellings to the footpath, with small but landscaped front setbacks which relate to the heritage listed sandstone retaining wall. Together with the lack of vehicular traffic, they provide for a safe environment for children and pedestrians and provide outdoor space for children to play within the public domain. The introduction of a driveway for 8 cars requiring a significant hard paved area within the front setback, will not provide for a development which enhances the quality of life of the community. The built form and parking arrangements are inconsistent with the public domain principal requirements …”

64. In cross examination, Mr Astill questioned Mr Betros whether alternative forms of development - other than four terrace houses - might better resolve the tensions evident in this dispute.

65. To this, Mr Betros generally accepted that a residential apartment building could be consistent with the medium density residential land use and desired future character of the area.

66. Mr Betros also accepted that such a residential apartment building could be sited closer to the Dolphin Street frontage and could potentially accommodate a single vehicle access point (with car lift serving a basement), eliminating the need for hardstand and at-grade vehicle manoeuvring space.

67. Mr Betros also sought to justify the final amended DA on a similar basis as set out in the joint report. Specifically noting there is a variety of front setbacks evident along Dolphin Street, that the forward siting of the proposed development therefore relies on a test of its merits, and that the proposed landscape treatment provided in the final amended DA serves to adequately screen the area of hardstand.

68. Mr Betros also acknowledged that the presence of the heritage sandstone retaining wall and absence of vehicular access to nearby properties on the northern side of Dolphin Street will likely limit there renewal to denser forms of housing.

69. In his cross examination of Ms Read, Mr Eastman asked about the particular vantage points within the public domain where the proposed hardstand area would be visible. Ms Read accepted that generally, there are few such vantage points, limited to vehicles standing at the intersection of St Lukes Street and Dolphin Street, and for pedestrians in the immediate vicinity of the site.

70. Ms Read also accepted that garaging directly addressing Dolphin Street is a common attribute of the existing urban character, and that the recessive carport design proposed as part of the final amended DA was superior to many of the existing street-facing garages nearby.

71. In relation to the impacts of the final amended DA upon the amenity of immediate neighbours (Contention 8), at pars 116-120 of the joint report, Mr Betros and Ms Read agree that visual privacy and cross viewing impacts are able to be adequately resolved by way of conditions of consent that require adjustment to sill heights, or the introduction of privacy screening or translucent glazing.

72. Similarly, the question of overshadowing was agreed to be resolved, with Ms Read accepting in oral evidence that adequate solar access is retained to each of the affected neighbours at 17A and 23 Dolphin Street.

73. The planning experts also devoted considerable attention in the joint report to the question of the proposed building form as it presents to the side boundaries, and the cumulative impacts of side setbacks, wall heights and building bulk and scale (Contentions 6 and 7).

74. At pars 67-85 of the joint report, Mr Betros sets out relevant recent changes to the RDCP, which make determining an appropriate side setback more difficult in the circumstances of this matter. Relying on the merits of the proposed 900mm side setback, Mr Betros notes:

“…that the proposal satisfies the relevant [RDCP] objectives for side setbacks as:

The 900mm side setbacks are consistent and compatible with the side setbacks for dwelling houses, whilst the flat buildings along Dolphin Street also have similar setbacks.

The proposal provides for a [two]-storey frontage with 900mm [side] setbacks which is consistent with the streetscape outcome sought by the objectives.

There are no visual or acoustic privacy impacts…whilst solar access is provided to the adjoining properties on either side to a greater degree than required.

There are no view-sharing impacts.

The side setbacks allow for pervious areas which allow for infiltration of rainfall.

75. For her part, Ms Read gives her view at par 88 of the joint report, that:

“…the side setback controls have changed since the application was lodged, however the proposal’s side setbacks have not been amended to recognise the new [RDCP] side setback control as applicable. They also do not meet the unchanged wall height control in Part C2 [S]ection 4.4, so the overbearing nature of the building to its neighbours is not relieved by either an increased side setback or a reduced wall height.”

76. On the topic of wall height, Mr Betros and Ms Read agree (at pars 96 and 97) that the final amended DA exceeds the development control for wall height of 8m by up to 1.5m for portions of TH1 and TH4 as they present to the eastern and western site boundary respectively.

76. Mr Betros then sets out his justification of the final amended DA in this regards at pars 100-103, where he states:

"Notwithstanding the wall height variation, the wall height satisfies the objectives for the wall height provisions in Part C2 of the [R]DCP as the variation does not generate any adverse streetscape, shadow, privacy or view impacts. The wall height variation would not be readily discernible in the streetscape due to the screening associated with the proposed landscaping in the front setback, along with the narrow side setbacks either side. It is realistic to consider that an additional storey may be added to the neighbouring dwellings either side which would further reduce any potential perception of the wall height variation.

No reduction in wall height is necessary given the built form modestly presents as [two]-storeys to Dolphin Street whilst the retention of solar access to the north-facing living and private open space areas to a substantially greater extent than required further confirms that the wall height variation is reasonable in this instance.

The wall height steps down the slope which further minimises the visibility of the side elevations whilst it is noted that the greatest extent of wall height variation along the western side is due to previous excavation for a pathway and stairs which has occurred on the western side of No. 19. In this regard, the western side is generally 1.3-1.8m lower than the eastern side of the site. The rear yards across both sites are generally level.

The wall height variation is also compatible with numerous low and medium density forms to the east including the immediately adjoining [three]-storey dwelling to the east and other residential flat buildings further east which present as [two]-storeys to the street and [three]-storeys to the rear.”

78. Ms Read demurs at par 112 of the joint report, where she says:

“[Ms Read] is of the view that the breach of the wall height control, in conjunction with the non-compliance with the side setback controls and the wide front of the building all lead to a building which is excessively bulky and of a scale which is not compatible with the streetscape and therefore inconsistent with the objectives of the wall height control…particularly in relation to bulk and scale.”

79. In his oral evidence on this topic, Mr Betros accepted that the exceedance of the 8m wall height control is more pronounced along the western boundary, and also substantiated the wall height proposed by virtue of the general absence of visual privacy, overshadowing or view loss impacts.

80. Ms Read, responded by saying she felt the final amended DA was deficient because the combination of 900mm side setback and exceedance of the 8m wall height control worked together to create unreasonable bulk and scale impacts upon 17A Dolphin Street in particular.

81. She noted that the proposed building form offers “no relief at upper levels” and that, relative to the rear balcony at 17A, the proposed new building form would be perceived as two additional storeys.

82. Turning to the third of the central issues in this matter - the amenity provided in the rear yards - and whether the shortfall in landscaped area (Contention 10) and the proposed ‘L’ shaped lots (Contention 1) result in unacceptable amenity impacts for the proposed new dwellings.

83. During his oral evidence, under cross examination, Mr Betros addressed the purpose of the subdivision pattern, explaining that it exists entirely to achieve FSR compliance for each of the four proposed lots.

84. Additionally, with the deletion of the lower ground level decks now evident in the final amended DA, the minimum rear setbacks required by the RDCP are met.

85. Similarly, Mr Betros noted that the minimum required area of 20sqm of private open space and 25% deep soil for each dwelling are now met or exceeded. Mr Betros ascribed greater landscape value to the over-provision of deep soil than to the shortfall of the requirement for 50% landscaped area.

86. Mr Betros also explained that the proposed subdivision pattern would not be perceived from any point within the public domain.

87. At pars 32 and 33 of the joint report, Ms Read sets out her concern for the unintended effects of the ‘L’ shaped subdivision pattern as follows:

“[Ms Read’s] opinion is that the proposed subdivision…is illogical, provides for a poor outcome for all the town houses, will result in the areas behind TH1 and TH4 being largely unused and of very poor quality as use for private open space, with minimal oversight from the dwellings. They have a higher potential than if straight boundaries were applied, to be “forgotten” areas which will lack landscape maintenance and potentially lead to flooding impacts. The only reason why this layout is proposed is to provide compliance with the FSR control, and once consent is granted, that purpose will be complete and the lots will be left with a subdivision which will be somewhat inexplicable to any future residents and retain adverse legacy issues for all occupants into the future…”

88. In her oral evidence, Ms Read elaborated on these points and noted that the ability to use landscape areas for the provision of large scale vegetation is constrained by the need to accommodate overland flow during flooding events, and stated her preference would be for regular lot boundaries (supported by a cl 4.6 written request to potentially resolve any accompanying FSR non-compliance).

89. Under cross examination, Ms Read accepted that the ‘L’ shaped subdivision was not “contrived and illogical”, but rather driven by the logic of achieving FSR compliance. She also accepted that the subdivision pattern creates no perceptible impacts upon the locality, but restated her concerns that it does result in negative impacts within the site due to reduced privacy, cross viewing, reduced utility and the impacts of reduced rear setbacks for TH1 and TH4, which have shortened rear yards.

Findings

90. I now move to dismiss the appeal. In deciding this course, I set out my reasons over the following paragraphs.

91. Given the relative consistency between the final amended DA and relevant development standards for FSR and height of building - I first note that the resolution of this dispute tends to deal with discretionary merits.

92. It is also useful to restate that this dispute can be reduced to three related questions:

1. Streetscape impacts - whether the proposed extent of hardstand necessary for vehicle manoeuvring in front of the four dwellings, the resultant building line and setback created to Dolphin Street, the dominance of the four proposed carports, and the uncharacteristic architectural form and expression will have an unacceptable negative impact on the streetscape presentation.

2. Impacts upon neighbours - whether the relationship of elevated hardstand area, the proposed built form, wall height, bulk and scale as it presents to side boundaries, in concert with 900mm side setbacks, will have an unacceptable negative effect on the amenity, outlook and privacy of immediate neighbouring properties.

3. Amenity provided by rear yards - whether the shortfall in landscaped area, the proposed ‘L’ shaped lots and associated privacy and cross viewing impacts result in unacceptable amenity for residents.

93. Were I to be satisfied of these merits, then I would also be satisfied that the final amended DA is in a form, and accompanied by necessary supporting information, that would allow for the lawful grant of consent.

94. As it is however, and in the particular circumstance of this matter, I find that the final amended DA falls short of the first merit test for an acceptable streetscape presentation and consequently, the appeal must be dismissed.

95. In terms of the second and third merit tests - for impacts upon neighbours and the amenity provided by rear yards - I find that although there are deficiencies evident in the final amended DA, in and of themselves these are ultimately not determinative matters.

96. Hence, I deal with each of these three tests in reverse order.

Amenity provided by rear yards

97. In his written submissions, Mr Eastman sets out a number of points relating to the Respondent’s criticism of the proposed subdivision pattern.

98. I accept the submission that the Applicant has “achieved numerical compliance with the FSR control as a consequence of the creation of the allotments.”

99. I also accept the submission that, if the subdivision pattern is described as “contrived or artificial” (as it is by the Respondent), this does not address the assessment of its impacts.

100. In terms of any proposed subdivision, Mr Eastman submitted, and I accept, the RDCP is silent on any requirement for a shape, orientation, dimension or size for cadastral boundaries.

101. Mr Eastman submitted that by expressing a preference for four regular, rectangular lots, Ms Read is seeking to impose a more onerous requirement for subdivision than the RDCP establishes.

102. In her oral evidence under cross examination, Ms Read accepted that there are no discernible impacts arising from the subdivision pattern on the locality. Rather, Ms Read’s concern was primarily for privacy impacts for users of the rear portion of TH2 upon TH1 (and TH3 upon TH4). She also accepted that the likelihood of conflict was low, given that the prime utility of the open space relates to landscaping and overland flow rather than providing other amenity for residents.

103. In submissions for the Respondent, Mr Astill noted that although the proposed FSR is consistent with the relevant development standard, the ‘L’ shaped lots remain a “contrivance” unable to be read as a natural portion of the associated lot (TH2 and TH3).

104. He also submitted that privacy impacts do exist and flow in both directions - from rear yard to dwelling and from dwelling to rear yard.

105. Finally, Mr Astill submitted that Ms Read’s preference for a more regular and characteristic subdivision pattern was not a matter of imposing a more onerous control, but highlighted that no focal point on lot geometry exists within the RDCP.

106. I find that while there are privacy and cross viewing impacts associated with the ‘L’ shaped subdivision, these impacts are broadly comparable with the level of amenity that would typically be expected in the R3 Medium Density Residential zone, and for this reason the Respondent’s criticism of the subdivision pattern and associated privacy and cross viewing impacts are not determinative in this particular dispute.

Impacts upon neighbours

107. Mr Eastman’s submissions on this question stem from the agreed position that the recent amendment to the RDCP makes it difficult to ascertain the precise expectation for a side setback.

108. Mr Eastman submitted that the relevant RDCP control changed approximately eight months after the DA was lodged with the Respondent, and was compliant with the control at that date.

109. Further, the interplay between this somewhat ambiguous side setback control and the very clear 8m wall height control makes an acceptable eastern and western boundary interface more open to interpretation.

110. The planning experts agree at pars 53-54 of the joint report that:

“Given the staggered approach to updating the [R]DCP, it appears that [the Respondent] did not consider the assessment of attached dwellings when updating Part C1. The current version of Part C1 of the [R]DCP refers to side setbacks being based on the existing (parent/unsubdivided) lot frontage, whereas the previous version of Part C1 appears to have been assessed on the subdivided lot frontage for attached dwellings.

This results in a challenging outcome for attached dwellings such that the side setbacks in the new Part C1 effectively reduce the end dwellings to [one] storey with a recessed [first] floor and no [second] floor (i.e. [third] level), notwithstanding the [R]LEP height limit of 9.5m.”

111. Mr Eastman then turned to the objective of the setback controls set out at Part C2 Section 3.4 of the RDCP, which states that:

“…side and rear setbacks are devised to ensure an adequate level of building separation and to provide for access, landscaping, privacy and natural lighting and ventilation for both the new development and the adjoining properties.”

112. In the absence of controls that work together coherently, Mr Eastman then submitted that the final amended DA was acceptable for a number of reasons reflecting those set out by Mr Betros, and including:

1. The absence of unreasonable impacts associated with overshadowing, privacy or view loss arising from the side setback and wall height.

2. The potential for the neighbouring properties (particularly 17A Dolphin Street) to redevelop to reflect the R3 Medium Density Residential development standards.

3. The compensatory generous north-facing outlook from the rear deck at 17A Dolphin Street.

4. Any notional upper-level setback to the side wall above 8m would not offer any material improvement to the presentation of the built form to the side boundary, nor improve visual amenity for neighbouring properties.

5. The final amended DA remains compliant with the 9.5m height of building development standard set out in the RLEP.

113. Mr Astill’s submissions on the question of impacts across side boundaries started with noting that a control does exist within the RDCP, but accepting it is not one that appears to be viable.

114. Strict adoption of the side setback control relies on a multi-step formula where the side setback is determined by adding 1.8m to double the difference between the height of building development standard of 9.5m and 7m.

115. Application of this formula determines a side setback of 6.8m to each side boundary, which I find is inappropriate, uncharacteristic, unworkable and likely unintended.

116. Mr Astill then submitted that in a scenario where such a control is flawed, an alternative should be justified “beyond the minimum 900mm”.

117. Mr Astill also submitted that the final amended DA offends both the side setback and wall height controls and the result is “overbearing, unacceptable and inadequate”.

118. In this question of the relationship of the final amended DA to the site’s side boundaries and associated impacts upon neighbouring properties, I find that on balance, the proposed built form is unnecessarily overbearing - but by a relatively small margin, and not to a degree that in isolation would warrant refusal.

119. Effectively the final amended DA is too close and too tall to its side boundaries and the immediately adjacent properties - a relationship which could be cured by reducing wall height or increasing the side setbacks, or both.

120. I also find that the agreed absence of overshadowing, visual privacy and view loss impacts does not entirely forgive this spatial interplay between proposed side setbacks, wall height and the existing neighbouring properties.

121. The physical proximity and scale of the final amended DA creates too great a sense of density, crowding and brings with it unreasonable impacts of building bulk and scale - impacts that the relevant objectives of the RDCP seek to avoid.

122. Notwithstanding these impacts, were the final amended DA otherwise in an acceptable form, the relationship to its side boundaries might be rendered acceptable by other merits of the proposal, however that is not the case in this instance.

Streetscape presentation

123. This final question is ultimately where the Applicant’s appeal fails.

124. In short, I find that the proposed extent of hardstand necessary for vehicle manoeuvring in front of the four dwellings, the resultant building line and setback created to Dolphin Street, the dominance of the four proposed carports, and the uncharacteristic architectural form and expression have an unacceptable negative impact on the streetscape presentation.

125. This issue reflects a number of related contentions still pressed by the Respondent, which I deal with in turn.

126. Firstly, the relevant part of Contention 5 (Parking) is expressed in the following terms:

“The [final amended] DA should be refused because the parking and manoeuvring area has an unacceptable impact on the streetscape character.

Particulars

The DA is inconsistent with the following objective in [S]ection 6 of Part C2 of RDCP 2013 relating to car parking and access, being:

To ensure that car parking and access facilities do not visually dominate the property frontage or adversely detract from the streetscape character.

The hardstand area in the front setback required to allow for manoeuvring dominates the streetscape, reduces the amount of front landscaping, and requires the building to have a front setback which is not consistent with the existing streetscape character…”

127. Similarly, the relevant part of Contention 6 (Setbacks) states:

“The DA should be refused because the proposed setbacks are inconsistent with the objectives and controls in Section 3.4 of Part C2 of RDCP 2013 and lead to unacceptable impacts on neighbours and the public domain.

Particulars

The objectives of the setback provisions in Part C2 of RDCP 2013 are:

To define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contributes to the local character.

To ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views.

To reserve contiguous areas for the retention or creation of open space and deep soil planting.

Front setback

…

The front setback controls in [S]ection 3.4.1 of Part C2 of RDCP 2013 include:

The front setback on the primary and secondary property frontages must be consistent with the prevailing setback line along the street.

…

iv) The entire front setback must incorporate landscape planting, with the exception of driveways and pathways.

The DA’s front setback is 7.1m. The front setback of 23 Dolphin Street is approximately 1m, 25 Dolphin Street is approximately 4m, 17A Dolphin Street is approximately 3.2m. The [seven] dwelling houses to the west of 17A all have a setback of approximately 5m. The DA front setback is not consistent with the prevailing setback line on the northern side of the street. It is required to be larger to accommodate the manoeuvring space for the cars, with the result that there is limited landscaping in the front setback which presents poorly to the street. The front setback is inconsistent with the objectives and controls of the RDCP 2013.”

128. And the relevant part of Contention 7 (Building Design) states:

“The DA should be refused because the building design is inconsistent with the objectives and controls of [S]ection 4 of Part C2 of RDCP 2013.

Particulars

Building Facade

Section 4.1 of Part C2 of RDCP 2013 includes objectives and controls relating to building facade. The objectives include “To ensure building facades are articulated to complement and enhance the streetscape and neighbourhood character.”

Control iii) requires articulation to facades to reflect the function of the building, present at a human scale, and contribute to the proportions and visual character of the street. The reduced articulation by way of balcony removal to TH1 and TH4 combined with the narrow non-compliant side setbacks, lead to a facade of significant bulk and scale which is inconsistent with the control.

Control iv) of [S]ection 4.1 of Part C2 of RDCP 2013 seeks to avoid massive or continuous unrelieved blank walls and suggests dividing the building envelope into sections of not more than 10m with articulation. The Rev 5 plans include a very narrow un-dimensioned instep to the ensuite of TH1 and TH4 on Level 1, and some hooded windows but otherwise provide unrelieved wall lengths of approximately 21.8m at the lower ground level and ground level, and approximately 17m at Level 1 which are inconsistent with the control.

Roof Design

Section 4.2 of Part C2 of RDCP 2013 includes objectives and controls relating to roof design. The objectives include “To ensure roof design integrates with the overall form, proportions and facade composition of the building.”

Control i) requires the roof form, in terms of massing, pitch, profile and silhouette to relate to the three dimensional form (size and scale) and facade composition of the building. Control iii) requires the use of a similar roof pitch to adjacent buildings, particularly if there is consistency of roof forms across the streetscape. Control iv) seeks to articulate or divide the mass of roof structures into distinctive sections to minimise the visual bulk and relate to the context of similar building forms. The front facade roof form, whilst containing some articulation which identifies the four individual dwellings, contains no depth articulation to break up the length of the building’s street presentation large and is wholly inconsistent with the adjacent buildings in terms of visual bulk of the building.

129. In his closing submissions, Mr Eastman addressed the substance of these contentions with reference to the proposed parking arrangement.

130. Mr Eastman submitted that a broader reading of the existing character of Dolphin Street would recognise a reasonably common configuration of garaging and an absence of landscape.

131. Mr Eastman referred to Ms Read’s evidence, where at pars 43-46 of the joint report, she acknowledges that “parts of Dolphin Street [have] a significant lack of landscaping in the front setback including immediately opposite the site”.

132. He also submitted that given the limited visibility of the area of hardstand (seen from only two vantage points according to Ms Read), it was incongruous to assert that the proposed hardstand could be visually dominant.

133. Mr Astill submitted that when considering the character of the northern side of Dolphin Street and the existing degree of continuity evident in building alignments and character, the final amended DA - with setback and hardstand - would be found to be inconsistent with this character.

134. He further submitted that the inconsistent character arises as a consequence of the Applicant proposing four terrace houses rather than any alternative form of housing permissible within the R3 Medium Density Residential land use zone (such as a residential apartment building), which might better configure a discreet basement entry, increase landscape and planting in the front setback, whilst also adopt a more congruent building line that better reflects the prevailing street alignment.

135. I note that examples of such residential apartment buildings exist on the north side of Dolphin Street, to the east of the site and are familiar to the character of the street.

136. In finding that the final amended DA would create unacceptable impacts upon the streetscape, I generally prefer the evidence provided by Ms Read.

137. Factors such as the presence of existing neighbouring dwellings with a reasonably consistent presentation, similar pitched roof forms, the landscaped verge and heritage sandstone retaining wall - and their cumulative positive influence on the character of the northern side of Dolphin Street - are sufficient to lend this part of the street an unusual and distinctive urban quality worthy of a greater consideration when assessing the final amended DA.

138. Hence, I find that the proposed extent of hardstand would be uncharacteristic within the immediate streetscape and undesirable when considered against the objectives of the RDCP, which expressly seek to ensure that the accommodation of car parking does “not visually dominate the property frontage or adversely detract from the streetscape character”.

139. Further, I find that the presence of the proposed hardstand would adversely detract from the positive attributes of Dolphin Street’s character, and the 7.1m front setback to Dolphin Streets serves to exaggerate these impacts due to its incongruity when compared to the immediate neighbours and dwellings elsewhere along the northern side of the street.

140. I also find that the presence of the proposed hardstand would dominate the property frontage whether or not that frontage is highly visible from vantage points within the public domain.

141. In terms of the proposed building design, I find that the dominance of the four proposed carports upon the streetscape presentation, the recessed dwelling entries partly obscured by these carports, the less characteristic flat-roofed architectural form and associated architectural expression - in combination with the proposed extent of hardstand already discussed - have a further negative impact on the streetscape presentation.

Disposing of the matter

142. I now move to dispose of the matter.

143. In doing so, I remark on two other aspects of the final amended DA which were troubling to me, although these do not figure centrally in the Respondent’s contentions.

144. I make brief mention of these aspects now, noting that they have no material bearing on the final decision.

145. Firstly, the practical implications of the proposed access and manoeuvring arrangements for up to eight vehicles appears complicated at best.

146. To some extent, each dwelling relies on its neighbours’ area of hardstand to provide access and manoeuvring space.

147. A resident’s decision to leave their dwelling in a car parked within the basement would first require temporarily moving any car parked in the carport to somewhere else within the front setback. The resident would then need to access the basement (presumably by the dwelling’s internal stair), activate the car lift and bring the second vehicle to grade.

148. This second car would then need to be temporarily moved somewhere else within the front setback in order to allow the first car to return to the carport (or basement). Finally, with the first car parked, the second car retrieved from the basement would be able to leave the site in a forward direction.

149. It does not appear possible for any two residents to undertake these necessary movements concurrently.

150. Secondly, the general configuration of each of the four terrace houses, with a lower ground level - comprising bedroom, laundry and bathroom - accessing the rear yard via a long corridor to a short flight of stairs, serves to disconnect the private open space provided by the rear yard from the principal living space provided at the ground level.

151. Although the principal living space at ground level opens to an elevated terrace overlooking the rear yard, this arrangement requires a resident to use the central internal stair to descend to the lower ground before traversing the corridor to the rear yard. This appears to be inconvenient for day-to-day use and diminishes the utility and amenity of the rear yards.

152. In moving to now dispose of the appeal, I note this decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to determine the final amended DA by way of refusal.

Orders

153. The Court orders that:

1. The appeal is dismissed.

2. The exhibits, other than 5, 8, and C, are returned.

………………………

M Pullinger

Acting Commissioner of the Court

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Decision last updated: 16 October 2024