Ardill Payne and Partners v Byron Shire Council

[2021] NSWLEC 1175

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ardill Payne & Partners v Byron Shire Council [2021] NSWLEC 1175

Hearing dates:

22 and 25 March 2021

Date of orders:

15 April 2021

Decision date:

15 April 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 10.2019.644.1 for the demolition of a detached dual occupancy dwelling and outbuildings, construction of a new dwelling and new swimming pool, and alterations and additions to a detached dual occupancy dwelling, at 255 Coolamon Scenic Drive, Coorabell, is approved, subject to the conditions of consent at Annexure A.
(3) The exhibits, other than Exhibit 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION – replacement of a dual occupancy dwelling with a new dwelling house and swimming pool and alterations and additions to a dual occupancy dwelling – the new dwelling house is an expanded house within the meaning of the Byron Shire Development Control Plan 2014 – final orders by consent of parties

Legislation Cited:

Byron Shire Local Environmental Plan 1988

Byron Shire Local Environmental Plan 2014 cll 1.3, 2.7, 4.1E, 4.2A, 4.2D, 4.3, 5.16, 6.2, 6.5, 6.6

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979 s 34

Rural Fires Act 1997

State Environmental Planning Policy (Building Sustainability Index: BASIX) cll 5, 6

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

State Environmental Planning Policy (Koala Habitat Protection) 2020 cl 8

State Environmental Planning Policy (Koala Habitat Protection) 2021

State Environmental Planning Policy No 55 – Remediation of Land cll 5, 7

Texts Cited:

Building Code of Australia

Byron Shire Council, Design Guidelines for On-Site Sewage Management for Single Households, (December 2004)

Byron Shire Development Control Plan 2014

NSW Rural Fire Service, Planning for Bush Fire Protection, (November 2019)

Category:

Principal judgment

Parties:

Ardill Payne & Partners (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
P Vergotis (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
McCabe Curwood (Respondent)

File Number(s):

2020/197066

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 10.2019.644.1 for the demolition of a detached dual occupancy dwelling and outbuildings, construction of a new dwelling and new swimming pool, and alterations and additions to a detached dual occupancy dwelling (the proposal) at 255 Coolamon Scenic Drive, Coorabell (the site) by Byron Shire Council (the Council).

2. The appeal was subject to conciliation on 12 February 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 16 March 2021 for the applicant to amend the application by relying on an amended proposal subject to an order that the applicant pay the costs of the Council thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act.

4. The hearing commenced with a view of the site with the parties and their experts. Following the site view and prior to the commencement of the hearing at Mullumbimby Local Court, the Council advised me that the contentions in the Statement of Facts and Contentions (Ex 1) were no longer pressed and the parties requested that the Court determine whether it is lawful and appropriate to grant the consent having regard to the whole of the relevant circumstances of the appeal and that final orders be made by consent.

5. The Council submitted that there was one objector and the written submissions of the objector are contained in the Council’s bundle (Ex B, tab 3). The Council submitted that the objector’s concerns had been dealt with to the objector’s satisfaction by the amended proposal for which leave was granted by the Court on 16 March 2021.

Issues

6. The Council’s contentions particularised in the Statement of Facts and Contentions filed on 11 August 2020 can be summarised as:

• The proposed recording studio is not permissible on the site;

• The proposal has not demonstrated that the development conforms to the specifications and requirements of Planning for Bushfire Protection;

• The proposal is contrary to the zone objectives of the RU1 zone;

• The proposal fails to meet the requirements for the erection of dual occupancies (detached);

• The proposal has not demonstrated that the site is uncontaminated or that the site can be made suitable for the development;

• The proposal has not demonstrated that the development will reduce land use conflict and sterilisation of rural land by balancing primary production, residential development and the protection of native vegetation, biodiversity and water resources;

• The proposal has not demonstrated that the development will not adversely impact on the scenic character and visual quality of the locality;

• The proposal does not comply with the prescriptive measures for expanded houses;

• The site is not suitable for the proposal; and

• The proposal is not in the public interest.

The site and its context

7. The site is approximately 8km north of the town of Bangalow, on the southern side of Coolamon Scenic Drive between Hinterland Way to the south-east and Friday Hut Road to the north-west.

8. The site has an area of 35.55 hectares (ha).

9. The site contains two detached dwellings, one immediately adjacent to the street boundary and the other on a hill on the property accessed via a driveway. The site contains farm storage sheds.

Background and the proposal

10. The proposal includes the following:

• Demolition of one of the two dwellings and construction of a new dwelling house and swimming pool with a total building footprint of approximately 1400sqm, accessed via an extension to the existing driveway;

• Alterations and additions to the retained dwelling to extend the existing dwelling house at the rear with a total building footprint of 250sqm;

• Demolition of the former mechanic shed located on the north-eastern boundary; and

• New landscaping.

11. The new dwelling house consists of three pavilions around an infinity swimming pool; including the main pavilion with kitchen, living areas and two bedroom suites; a bedroom pavilion containing four bedroom suites and a swimming pool pavilion adjacent to the swimming pool containing a wet bar and rooms for a gym, a spa, a massage room, a toilet and a Turkish bath. The dwelling is constructed over a basement containing parking for 7 cars, a cinema and a laundry. The main pavilion and bedroom pavilion are connected by a tiled terrace over the basement. There is an at grade carpark cut into the hill for 6 cars adjacent to the entry to the new dwelling house.

12. The applicant submitted that the estimated cost of the proposal is $9.99 million.

Expert evidence

13. The applicant relied on the expert evidence of Dwayne Roberts (planning), Alan Kennedy (sewer and water), Dane Egelton (contamination), Peter Thornton (fire) and Suzanne Rawlingson (visual character).

14. The Council relied on the expert evidence of Ivan Holland (planning), Emma Holt (sewer, water and contamination), Melanie Jackson (fire) and Jane Maze-Riley (visual character).

15. The experts prepared joint reports addressing the Council’s contentions in the appeal.

Jurisdictional pre-conditions to the grant of consent

16. State Environmental Planning Policy (Koala Habitat Protection) 2020 (SEPP Koala Habitat Protection) applies to the site at cl 5(1)(a) and Sch 1 to State Environmental Planning Policy (Koala Habitat Protection) 2021 because the land is zoned RU1 and is within the Byron Shire. The council (or the Court exercising the functions of the consent authority) must be satisfied as to whether or not the land is a potential koala habitat on the basis of information obtained from a person who is qualified and experienced in tree identification, at cl 8(2). The application includes a koala habitat assessment by Peter Parker, an environmental consultant and an expert who satisfies the requirements of cl 8(2) of SEPP Koala Habitat Protection. Mr Parker has concluded that the site is not a potential koala habitat. On the basis of Mr Parker’s conclusion, I am satisfied that consent may be granted to the application pursuant to cl 8(3)(a) of SEPP Koala Habitat Protection.

17. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) applies to the site at cl 5 and the consent authority (or the Court exercising the functions of the consent authority) must not consent to the application unless it has considered whether the land is contaminated and if the land requires remediation to be made suitable for the purpose which the development is proposed to be carried out, at cl 7. The contamination experts agreed in their joint report (Ex C, tab C) that the appropriate investigations have been undertaken and the development areas have been adequately assessed and that the site has only minor surface soil contamination and can be remediated and then validated to demonstrate that the site has been made suitable for the proposed development. I accept the experts’ agreement. A deferred commencement condition pursuant to s 4.16(3) of the EPA Act is imposed on the consent requiring a Remedial Action Plan (RAP) to be prepared by a suitably qualified contamination land specialist with experience in the remediation of contaminated land to be approved by the Council prior to the operation of the consent. The contaminated land remedial works must be completed in accordance with the approved RAP prior to the issue of a construction certificate for any building works, excluding demolition of the mechanic workshop (conditions 9 and 10).

18. State Environmental Planning Policy (Building Sustainability Index: BASIX) applies to the site at cl 5 and to the development at cl 6(1)(a). The application includes a BASIX certificate for the proposal (Ex B, tab 8) and the development is to comply with the commitments indicated in the certificate (condition 19).

19. The Byron Shire Local Environmental Plan 2014 (LEP 2014) applies to the site at cl 1.3(1) and the Land Application Map. The site is partly zoned RU1 Primary Production and RU2 Rural Landscape under LEP 2014. A portion of the site is identified as a Deferred Matter on the Land Application Map and is zoned 1(a) General Rural under the Byron Local Environmental Plan 1988. The proposal is entirely located on land zoned RU1.

20. The objectives of the RU1 zone are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage consolidation of lots for the purposes of primary industry production.

• To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.

• To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

21. The objectives of the RU2 zone are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.

• To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

22. The objectives of the 1(a) General Rural zone are:

(a) to encourage and permit a range of uses creating a pattern of settlement, at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron,

(b) to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character,

(c) to ensure development only occurs on land which is suitable for and economically capable of that development and so as not to create conflicting uses,

(d) to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes whilst avoiding conflict between other uses and intensive agriculture,

(e) to identify lands (shown hatched on the map) which in the opinion of the council possess a limited capability for more intensive uses or development,

(f) to restrict the establishment of inappropriate traffic generating uses along main road frontages other than in road side service areas,

(g) to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry,

(h) to enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality, and

(i) to permit the development of limited light industries which do not pose any adverse environmental impact, (eg software manufacture and film processing), and

(j) to ensure that the development and use of land shown cross-hatched on the map adjacent to areas of significant vegetation and wildlife habitat do not result in any degradation of that significant vegetation and wildlife habitat, and that any development conserves and protects and enhances the value of the fauna and flora.

23. The relevant aims of LEP 2014, according to the Council’s submission, are:

(b) to integrate local planning provisions with applicable regional and State planning controls and policies,

(c) to provide a framework for land use management in Byron,

(d) to promote and coordinate the orderly and economic use and development of land,

…

(k) to provide for public involvement and participation in environmental planning and assessment,

(l) to minimise conflict between land uses within a zone and adjoining zones and ensure minimal impact of development on the amenity of adjoining and nearby land uses.

24. The demolition of a building requires development consent, at cl 2.7 of LEP 2014.

25. The minimum lot sizes for detached dual occupancies, at cl 4.1E of LEP 2014, in the RU1 and RU2 zones is 4000sqm. The site has an area of 35.55 ha.

26. Clause 4.2A of LEP 2014 applies to land in the RU1 and RU2 zones, at sub-cl (2) and development consent must not be granted for the erection of a dual occupancy on land to which the clause applies, unless the land is a lot created before LEP 2014 commenced and on which the erection of a dual occupancy was permissible immediately before that commencement, at sub-cl (3)(c). Development consent may be granted for the erection of a dual occupancy on land to which cl 4.2A applies if there is a lawfully erected dual occupancy on the land and the dual occupancy to be erected is intended only to replace the existing dwelling house. The parties agreed that the site was part of a subdivision created in 1907 and that there is evidence that the existing two dwellings were extant on this site by 1958. The Council submitted that the two dwellings were lawfully erected sometime before 1958.

27. Clause 4.2D of LEP 2014 applies to the erection of dual occupancies (detached) in the RU1 and RU2 zones and is in the following terms:

(1) The objectives of this clause are as follows—

(a) to provide alternative accommodation for rural families and workers,

(b) to ensure that development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land,

(c) to set out consent considerations for development of dual occupancies (detached) and secondary dwellings to address matters such as access, siting, land suitability and potential impacts.

(2) Development consent must not be granted to development for the purpose of a dual occupancy (detached) or secondary dwelling on land in Zone RU1 Primary Production or Zone RU2 Rural Landscape unless the consent authority is satisfied that—

(a) the development will not impair the use of the land for agriculture or rural industries, and

(b) each dwelling will use the same vehicular access to and from a public road, and

(c) any dwellings will be situated within 100 metres of each other, and

(d) the land is physically suitable for the development, and

(e) the land is capable of accommodating the on-site disposal and management of sewage for the development, and

(f) the development will not have an adverse impact on the scenic amenity or character of the rural environment.

28. I am satisfied that the proposal will not impair the use of land for agricultural or rural industries on the basis of the plan (Ex A, tab 3, Plan No. P20) which demonstrates that the area for grazing on the site is maintained by the proposal. The proposed new dwelling is accessed via the existing driveway. The new dwelling is a distance of 99.98m to the west of the existing dwelling to be retained (Ex A, tab 3, Plan No. P1). The land is physically suitable for the development.

29. I accept the agreement of the sewer experts that adequate on-site sewage management is provided by the proposal (Ex C, tab B, p 4) and conditions are imposed on the consent that address effluent quality standards and require an environmental contingency plan (conditions 6, 7 and 24-26).

30. I have considered the joint report prepared by the visual character experts (Ex B, tab 5D) and I accept their agreement that the proposed new dwelling will be visible from a section of Coolamon Scenic Drive and that the existing Fig trees will provide some screening to the proposed new dwelling. I accept Ms Rawlinson’s opinion that the proposal will not have an adverse impact on the scenic amenity or character of the rural environment, because the character of the rural environment will be largely maintained by the proposal and because the Byron Bay hinterland is characterised by large expanded houses in a rural setting.

31. The height of buildings development standard for the site is 9m (cl 4.3 and Height of Buildings Map HOB_003 of LEP 2014) and the proposal has a maximum height of less than 6m.

32. The consent authority (or the Court exercising the functions of the consent authority) must take the following matters into account in determining an application for the erection of a dwelling on RU1 zoned land, at cl 5.16(4) of LEP 2014, in order to minimise potential land use conflicts:

(a) the existing uses and approved uses of land in the vicinity of the development,

(b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c).

33. I am satisfied that the proposal is compatible with and will not have a significant impact on the existing and approved rural uses in the vicinity of the development for the reason given in par [28] and because the proposed new dwelling replaces an existing dwelling and utilises the existing driveway.

33. The consent authority (or the Court exercising the functions of the consent authority) must consider the following matters in determining an application which includes earthworks, at cl 6.2(3) of LEP 2014, in order to ensure that earthworks for which consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

35. The proposed areas of cut and fill are identified by Plans No. P17 and P18 (Ex A, tab 3). All the excavated material is to be re-used on the site, no excavated material is to be exported and no fill is to be brought onto the site. Conditions are imposed on the consent that address the management of excavated material and use of fill (conditions 40 and 41). I accept the agreement of the sewer and water experts in their joint report (Ex C, tab B) that the proposal will not have adverse impacts on any water way or the drinking water catchment. Any Aboriginal relics or items exposed during construction works are protected by condition 49. I am satisfied by all of the evidence before me that the earthworks for which consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

36. Clause 6.5 of LEP 2014 applies to the site because the site is identified as part of the Drinking Water Catchment (Drinking Water Catchment Map DWC_003C of LEP 2014). In deciding whether to grant consent to an application on land to which cl 6.5 applies, the consent authority must consider whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the distance between the development and the waterway that feeds into the water storage, the use of any chemicals on the land, the treatment, storage and disposal of waste water and solid waste generated or used by the development, and any appropriate measures to minimise or mitigate the impacts of the development, at sub-cl (3). At sub-cl (4)(a), the consent authority must be satisfied that the development is designed, sited and will be managed to avoid any significant adverse impacts on water quality and flows.

37. I accept the agreement of the sewer and water experts in their joint report (Ex C, tab B, p 7) that the proposal, which is located in a drinking water catchment, includes sufficient information to demonstrate that adequate provision of on-site sewage management can be provided and that the proposal will not have any adverse impact on the quality and quantity of water entering the drinking water storage. Conditions are imposed on the consent that address effluent quality standards (conditions 6, 7 and 24-26).

38. The consent authority must be satisfied, at cl 6.6 of LEP 2014, that services essential for the development are available, including the supply of water, electricity, the disposal and management of sewage, stormwater drainage or onsite conservation and suitable vehicular access, before granting consent to the development. I accept the Council’s submission that services essential for the proposal are available. I accept the agreement of the sewer and water experts in their joint report (Ex C, tab B) that the proposal includes sufficient information to demonstrate that adequate provision of on-site sewage management can be provided (see notes “Essential Energy comments” in the conditions of consent at Annexure A).

Consideration

39. The Byron Shire Development Control Plan 2014 (DCP 2014) applies to the land to which LEP 2014 applies, at section A5.

40. Section B3.2.1 of DCP 2014 for the provision of services includes the following prescriptive measure at (f):

“Rural dwellings without reticulated water are to have a minimum domestic tank capacity of 40,000 litres. Secondary dwellings must have a minimum 20,000 litres in addition to the primary dwelling requirements. For applicants who seek to be better prepared for extended periods of little or no rain, please refer to Section 8.4 of the Byron Rural Settlement Strategy 1998. In bushfire prone areas additional water dedicated for fire fighting purposes is to be provided. For specific bushfire requirements please refer to the current version of the NSW Rural Fire Service (RFS) Planning for Bushfire Protection and any additional design information included in the Practice Notes or Fast Facts Sheets provided by the RFS.”

41. Water tanks for the dwelling houses that comply with the prescriptive measures of section B3.2.1 are required by condition 60.

42. The site is identified as being designated bushfire prone land. I accept the agreement of the bushfire experts in their joint report (Ex C, tab A) that the proposal demonstrates compliance with the specification and requirements of Planning for Bush Fire Protection (Ex 2, tab 10) subject to the recommendations within the Bushfire Assessment Report prepared by Bushfire Certifiers and dated 5 March 2021. The approved development must conform to the specifications and requirements of the Planning for Bush Fire Protection prepared by the NSW Rural Fire Service (conditions 8 and 21).

43. Section B3.2.2 of DCP 2014 for on-site sewage management, includes a requirement in the prescriptive measures that residential development that produces sewage and is not to be connected to the urban sewage system must comply with the Council’s Design Guidelines for On-Site Sewage Management for Single Households (conditions 6, 7 and 24-26).

44. Section B9.3.1 of DCP 2014 includes a requirement that landscaping around buildings on land mapped as Bushfire Prone Land must comply with the current legislative requirements of the Rural Fires Act1997 (condition 21).

45. Chapter C3 of DCP 2014 applies to the site because the chapter applies to applications for visually prominent development on a visually prominent site, and the definition of a visually prominent site in the dictionary of DCP 2014 includes land in the RU1 zone. Applications for land to which chapter C3 applies must be accompanied by a Visual Impact Statement, unless the council determinates that the development is not likely to create adverse visual impacts.

46. The dictionary of DCP 2014 at appendix A1 includes the following definitions:

“Visually prominent development means any development located on a visually prominent site or development in a location that has the potential to impact the visual or scenic character of a visually prominent site.

Visually prominent site means land that is wholly or partly within the coastal zone; and land in Zone RU1 Primary Production, RU2 Rural Landscape with a height of 60m AHD or greater.”

47. The application is accompanied by a Visual Impact Statement prepared by Iris and dated February 2021 (Ex B, tab 5D).

48. Chapter C4 of DCP 2014 applies to the site because the site is within the Drinking Water Catchment and the application must demonstrate consistency with chapter C4. Refer to par [37].

49. Chapter D2 of DCP 2014 applies to dual occupancies (detached) at section D2.1.2. Chapter D2 includes performance criteria for character and visual impact, at section D2.2.3, as follows:

“a) site, building and landscaping design must address the climate;

b) where a building is visible from a public road, it must contribute to the rural and scenic character of the locality by means of good design, appropriate materials and effective landscaping;

c) there must be a reasonable degree of integration with the existing built, rural and natural environment, balanced with the desirability of providing for variety in the landscape;

d) the provision of verandahs, balconies, pergolas and other protective outdoor elements will be encouraged for visual, climatic and energy efficiency reasons;

e) well-designed overhanging eaves should be provided where feasible to protect against heavy rainfall and summer sun, while allowing winter sun penetration;

f) no roof may have a highly reflective surface. Any metal roof must have a colorbond or equivalent finish in a colour approved by council. White or light coloured roofing will not be approved where likely to be visually intrusive or would result in significant glare for neighbouring properties;

g) details of building materials and surface colours must be submitted for assessment with a development application. All building materials must be compatible in character with their surrounding environment;

h) consistent with the NSW Coastal Council’s February 2003 publication ‘Coastal Design Guidelines for NSW’, namely the recommended design principles for buildings and development located in various categories of coastal and inland settlements, and for isolated coastal dwellings.

i) rural character and rural environment is not adversely affected by over development.”

50. I am satisfied on the basis of all of the evidence before me that the performance criteria for character and visual impact, at D2.2.3 of DCP 2014, are met by the proposal (conditions 20 and 21).

51. Section D2.3.3 includes an objective and prescriptive measures for an “expanded house”, as follows:

“Objectives

1. To facilitate the provision of a dwelling house comprising a number of separate building components.

Performance Criteria

There are no Performance Criteria.

Prescriptive Measures

The design and use of the expanded house must conform to the following criteria:

a) No expanded house habitable outbuilding is to be located more than 20m from the wall of the main building, measured from wall to wall at the closest point;

b) the main building must contain an identifiable living area including the kitchen;

c) a maximum of three outbuildings may be connected to the main building by paths with an all-weather surface;

d) outbuildings are to be connected to the main building by paths with an all weather surface;

e) no separate driveway, car parking area, garage or carport structure is to be provided to service any outbuilding;

f) one outbuilding must be limited to a maximum floor area of 45m2 excluding decks, verandahs, patios, balconies and the like; and the others must be limited to a maximum 30m² floor area excluding decks, verandahs, patios, balconies and the like;

g) none of the outbuildings is to contain facilities (e.g. kitchen, sink or the like) that would enable the preparation of food or beverages;

h) each separate outbuilding may incorporate a maximum of two bedrooms (including rooms with an ensuite or bathroom);

i) a maximum of one laundry per dwelling.”

52. The dictionary of DCP 2014 at Appendix A1 includes the following definition:

“Expanded house means a dwelling house comprising a main building and a maximum of three habitable outbuildings.”

53. The planning experts disagreed as to whether the proposal for a new dwelling house is an expanded house within the meaning of expanded house in section D2.3.3 of DCP 2014. The applicant submitted that the proposal for a new dwelling house is not an expanded house because the main pavilion and the bedroom pavilion on the ground level share a common concrete slab over the basement level. The proposal for a new dwelling house does not strictly comply with all of the prescriptive measures for an expanded house. The Council did not raise a merit issue regarding the proposal’s non-compliance with those prescriptive measures.

54. The applicant submitted that the swimming pool pavilion is non-habitable (presumably indicating that the building or structure is a Class 10a building under the Building Code of Australia, National Construction Code) and it is therefore not a “habitable outbuilding”. The term, “habitable outbuilding”, as used in the DCP 2014 definition of expanded house, is not defined. “Habitable outbuilding” strikes me as an oxymoron when one considers the defined meaning of outbuilding under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 which is a class 10a building under the National Construction Code and a class 10a building is a non-habitable building.

55. The objective of the provision in section D2.3.3 of DCP 2014 is to facilitate the provision of a dwelling house comprising a number of separate building components. The proposal is clearly for a dwelling comprising a number of separate building components or pavilions. The three pavilions are each a separate building because the façade of each building is an external wall. The common concrete slab of the main living pavilion and the bedroom pavilion over the basement does not exclude the proposal from being an expanded house within the meaning of expanded house under DCP 2014. The emphasis in the prescriptive measures for the design and use of an expanded house is on the separateness of each building component, not whether each building component is connected via a common horizontal structure at ground level. When viewed in the landscape, the new dwelling will appear as three single storey pavilions connected by external terraces (some with roofs over).

56. There are no performance criteria for section D2.3.3 of DCP 2014. The intent of the provision, although not explicitly stated, is to ensure that an expanded house contains only one dwelling. This is clear from the operation of the prescriptive measures, which seek to define a main building (kitchen and living areas) and smaller habitable outbuildings with subservient uses to the main building, such as bedroom suites, without kitchen facilities.

57. Applying the prescriptive measures in section D2.3.3 of DCP 2014 flexibly, pursuant to s 4.15(3A)(b) of the EPA Act, I am satisfied that the proposal for the construction of an expanded house and swimming pool is consistent with the objective of the provision to facilitate an expanded house and the implied objective of the provision to ensure that an expanded house contains only one dwelling. The approved use of the new dwelling house and swimming pool is a dwelling house (condition 59).

Conclusion

58. I am satisfied that the proposal is consistent with the objectives of the RU1 zone under LEP 2014 and that it is lawful and appropriate to grant development consent to the proposal.

Orders

59. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 10.2019.644.1 for the demolition of a detached dual occupancy dwelling and outbuildings, construction of a new dwelling and new swimming pool, and alterations and additions to a detached dual occupancy dwelling, at 255 Coolamon Scenic Drive, Coorabell, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibit 1, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (317385, pdf)

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Decision last updated: 15 April 2021