Carter v Randwick City Council

Case •

[2025] NSWLEC 1047

•

29 January 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Carter v Randwick City Council [2025] NSWLEC 1047
Hearing dates: 11 October 2024
Date of orders: 29 January 2025
Decision date: 29 January 2025
Jurisdiction:Class 1
Before: Kullen AC
Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application DA/57/2023 seeking development consent for the demolition of existing structures and construction of a two-storey attached dual occupancy on land legally described as Lot 2668 DP 752015, being 181 Franklin Street, Chifley, is refused.

Catchwords:

DEVELOPMENT APPEAL – orders – weight to be placed on development control plan – impact on streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Amendment Act2012

Land and Environment Court Act 1979, s 34AA

Randwick Local Environmental Plan 2012, cll 1.2, 1.8A, 2.2, 2.3, 2.7, 4.1, 4.1C, 4.3, 4.4, 4.6, 6.2, 6.4, 6.10

Cases Cited:

CCS Design Pty Ltd trading as Knight Mapleton Design Partners v Central Coast Council [2024] NSWLEC 1067

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Department of Planning and Environment, Explanation of Intended Effect: Changes

to create low-and mid-rise housing, 2023

New South Wales Department of Planning and Infrastructure, Planning Circular PS 13-003 Proclamation of certain provisions of

the EP&A Amendment Act 2012, 2013

Randwick Development Control Plan 2013

Category:Principal judgment
Parties: Jonathan Carter (First Applicant)
Jan Carter (Second Applicant)
Randwick City Council (Respondent)
Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/180053
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Randwick City Council of development application DA/57/2023 (the DA). The DA sought consent for the demolition of the existing structures and construction of a two-storey attached dual occupancy on land legally described as Lot 2668 DP 752015 at 181 Franklin Street, Chifley (the site).

Background

  1. The matter commenced as a s 34AA conciliation conference, with an on-site view on 11 October 2024. One submitter attended the on-site view and made a submission to the Court.

  2. The parties engaged in a wide-ranging discussion at the site view, confirming the key issue to be the adequacy of the width of the site frontage to accommodate the proposed side by side dual occupancy built form.

  3. The parties were not able to reach an agreement on the proposed development at the on-site view or in later discussions. In particular, the Respondent maintained that the site frontage of 13.715m was inadequate for the proposed side by side dual occupancy and could not be supported as it did not comply with the relevant provisions of the Randwick Development Control Plan 2013 (the DCP).

  4. The Applicant indicated a number of amendments to the DA would be made to address the concerns raised by the Respondent, including fencing to the front street boundary and provision of landscaping in the front setback between the two driveways servicing the proposed dwellings. Amended Plans Version F dated 10 October 2024 had been prepared by the Applicant, who noted that additional matters such as the front fencing raised at the on-site view could be dealt with by way of conditions.

  5. As no resolution was reached on these design issues, the matter was adjourned and resumed as a hearing in the Court on 11 October 2024.

The Proposal

  1. Development Application No DA/57/2023 (the DA) seeks consent for demolition of the existing structures and construction of a two storey attached dual occupancy at 181 Franklin Street, Chifley.

  2. The proposed side by side dual occupancy development as lodged in the DA includes:

  1. Dwelling 1 (Eastern Dwelling):

  1. Ground floor: dwelling entrance, single garage fronting Franklin Street, study, open-plan kitchen/living/dining room, roofed outdoor living area; and

  2. First floor: bedroom 1 with WIR and ensuite bathroom, three bedrooms, one bathroom, study nook, and linen cupboard.

  1. Dwelling 2 (Western Dwelling):

  1. Ground floor: dwelling entrance, single garage fronting Franklin Street, study, open-plan kitchen/living/dining room, roofed outdoor living area; and

  2. First floor: bedroom 1 with WIR and ensuite bathroom, three bedrooms, one bathroom, study nook, and linen cupboard.

  1. The garages and adjoining piers have a width of 3.59m and 3.47m respectively, which makes up over half of the 13.715m frontage width of the site. The first floors of the dwellings are setback 2.55m and 2.65m from the side boundaries respectively.

  2. In order to retain a single on-street parking space in front of the subject site, the proposed development also includes internal driveways that are angled to create a 5.4m clearance for the on-street parking space.

The site and its context

Site Description

  1. The site is located at 181 Franklin Street, Chifley, and is legally described as Lot 2668 DP 752015.

  2. The site has an area of 627.4m2 and is rectangular in shape, with a 13.715m frontage to Franklin Street (to the north-east), a 45.765 metre north-western side boundary, and a 45.72 metre south-eastern side boundary.

  3. The site is currently occupied by a single-storey residential dwelling. The front of the site is landscaped with lawn and planting. The south-eastern side of the site contains a driveway along the boundary leading to a single vehicle garage and shed within the rear of the site. The rear of the site also contains a large lawn area.

  4. The site is within Zone R2 Low Density Residential under the provisions of Randwick Local Environmental Plan 2012 (the LEP).

Surrounding Locality

  1. Surrounding development comprises predominantly residential development, including detached dwelling houses and attached dual occupancies.

  2. To the north-west of the site at 179 Franklin Street is single storey detached dwelling house.

  3. To the south-east of the site at 183 Franklin Street is a two-storey detached dwelling house.

  4. The subject site is within close proximity to the Bunnerong Equestrian Park to the west and Matraville Sports High School to the east. Franklin Street connects to Anzac Parade to the east, which is the main arterial road within the locality, with public bus services that connect to Maroubra Junction, Kingsford, Kensington and the Sydney City CBD to the north, and La Perouse to the south.

  5. The future character of the area was an issue discussed by the parties at the hearing. The Respondent contended that the characteristics of existing and emerging development on the southern side of Franklin Street consisted of single dwellings with a single cross-overs and fenestration at ground level of the dwellings. The Respondent also contended that there is a different character emerging on the northern side of Franklin Street due to wider frontages of lots on that side of the street, allowing for dual occupancy development that meets the zone objectives and the DCP controls.

  6. The Applicant’s view was that the provision of a dual occupancy on the site is not considered to be inconsistent with the desired future character of the locality, given that the use of the site for the purposes of an attached dual occupancy is permissible in the R2 zone.

Statutory Controls

Randwick Environmental Plan 2012

  1. The Randwick Local Environmental Plan 2012 (the LEP) is the principal environmental planning instrument applying to the site.

  2. On 1 September 2023, Randwick Local Environmental Plan 2012 (Amendment No 9) came into force. Amendment No 9 contained the following savings provision at cl 1.8A of the LEP: “The amendments made to this plan by Randwick Local Environmental Plan 2012 (Amendment No 9) do not apply to a development application made but not finally determined before the commencement of the plan.”

  3. Consequently, the version of the LEP in force immediately prior to 1 September 2023 applies to the development application.

  4. The site is located within Zone R2 Low Density Residential pursuant to cl 2.2 of the LEP.

  5. The proposed development is characterised as a “dual occupancy (attached)” and is permissible with consent in Zone R2 pursuant to cl 2.3 of the LEP and the Land Use Table in the LEP.

  6. Other relevant clauses of the LEP include:

  1. Clause 1.2 outlines the aims of the LEP;

  2. Clause 2.7 states that the demolition of a building or work may be carried out only with development consent;

  3. Clause 4.1 prescribes the minimum subdivision lot size requirements for the subdivision of land in accordance with the Lot Size Map;

  4. Clause 4.1C states that development consent may be granted for development on a lot in Zone R2 Low Density Residential for the purposes of a dual occupancy (attached) if the area of the lot is at least 450m2;

  5. Clause 4.3 prescribes that the maximum height of buildings for the site is 9.5m;

  6. Clause 4.4 prescribes that the maximum FSR for the site is 0.5:1;

  7. Clause 4.6 provides power to grant development consent to development contravening a development standard imposed by the LEP or any other environmental planning instrument (except for development standards expressly excluded);

  8. Clause 6.2 specifies mandatory matters for consideration with respect to development involving earthworks;

  9. Clause 6.4 specifies matters relating to stormwater management in respect of which the consent authority must be satisfied prior to granting consent.

  10. Clause 6.10 requires the consent authority to be satisfied that essential services are available or that adequate arrangements have been made to make them available. These services include water and electricity supply, sewage disposal and management, stormwater drainage or on-site conservation, and suitable vehicular access.

Randwick Development Control Plan 2013

  1. The relevant controls in the DCP to be applied to the proposed development as stated by the Respondent are:

  1. Part C1, section 2.1 – Minimum Lot Size and Frontage;

  2. Part C1, section 3.3 – Setbacks;

  3. Part C1, section 4.1 – Building Design – General; and

  4. Part C1, section 4.3 - Additional Design Provisions for Attached Dual Occupancies.

  1. Pursuant to control 2.1(iv) in Part C1 of the DCP, the minimum frontage width for the development of a dual occupancy (attached) within Zone R2 (Low Density Residential) is 15m. The proposed development has a site frontage width of 13.715m, which is 1.285m less than required or an 8.6% variation to the numerical control in the DCP.

Expert Evidence

  1. The Court was assisted by expert evidence in the following disciplines:

  1. Town Planning:

  1. Ms Jennie Askin for the Applicant; and

  2. Mr William Joannides for the Respondent;

  1. Flooding:

  1. Mr Jonathan Frecker for the Applicant; and

  2. Mr Jason Rider for the Respondent.

  1. The town planning experts attended the hearing and were cross-examined on their evidence. The final Joint Report of the town planning experts (Exhibit 3 filed 2 September 2024 tendered by the Respondent) highlighted the points of disagreement relating primarily to the impact of the side-by-side dual occupancy on the site with a 13.715m frontage.

Contentions relating to Proposed Side-by-side Dual Occupancy Development

  1. The DCP minimum frontage specified for a detached dual occupancy is particularly relevant to the assessment of the proposed development. While the Applicant has proposed amendments to the DA (tendered as Exhibit A) and has offered to make further amendments to the proposed development to address other design elements, what the proposed form of side-by-side development cannot achieve is compliance with the minimum lot frontage requirement in the DCP.

  2. The Respondent submitted that the DA should be refused because the site does not have the minimum frontage required for an attached dual occupancy under Section 2.1 in Part C1 of the DCP.

  3. In support of this position, the Respondent originally stated in its Statement of Facts and Contentions (SOFAC) at Contention 2 that:

  1. The objectives in Section 2.1 in Part C1 of the DCP relating to minimum frontage width seek (1) to ensure that dwellings have suitable scale and built form proportional to their allotment to complement the streetscape and (2) to ensure that dual occupancy dwellings do not result in unreasonable impacts on the surrounding properties in terms of visual amenity, solar access and privacy.

  2. Pursuant to control 2.1(iv) in Part C1 of the DCP, the minimum frontage width for the development of a dual occupancy (attached) within Zone R2 (Low Density Residential) is 15m;

  3. The proposed development has a site frontage width of 13.715m, which is 1.285m less than required or an 8.6% variation to the numerical control;

  4. The development of an attached dual occupancy on a lot with a narrow frontage width is not consistent with the existing character and predominant pattern of development along the south-western side of Franklin Street within which there are currently no attached dual occupancies;

  5. The development of an attached dual occupancy (and potential future subdivision of the site) would not provide dwellings and allotments with adequate width and configuration to deliver high quality building design that maintain residential amenity, including for occupants of the proposed dwellings;

  6. The approval of an attached dual occupancy on the subject site despite the contravention of the minimum lot frontage control in Section 2.2 in Part C1 of the DCP would set a precedent for the re-development of other sites on the southwestern side of Franklin Street with a width of 13.715m into attached dual occupancies. This would have a deleterious impact on the desired future character of the street (as determined by the provisions of the LEP and the DCP) and create dwellings and further allotments with inadequate amenity; and

  7. Having regard to the above, the Respondent considers that the proposed development is inconsistent with the third and fourth objective of Section 2.2 in Part C1 of the DCP.

  1. These contentions relating to the site frontage being less than the minimum lot frontage control specified in Section 2.2 in Part C1 of the DCP were strongly refuted by the Applicant.

  2. At the on-site view there was considerable discussion between the parties canvassing what design modifications could be made to the proposed development to overcome the shortfall in the width of the site. Several examples of side-by-side dual occupancies recently approved and/or constructed on lots with a similar width of 13.715m or less in the nearby neighbourhood were brought to the Court’s attention (at No 32 Blaxland Street, No 36 Lawson Street and No 22 Mitchell Street Chifley). There are no similar examples of side-by-side dual occupancies approved or constructed on sites with frontages of less than 15 metres on Franklin Street.

  3. The recently constructed example of a side-by-side dual occupancy at No 32 Blaxland Street was cited by both parties as a particularly relevant example, given that this site has a frontage of 13.714mm.

Town Planning Expert Evidence

  1. On the key contention of the minimum lot frontage, there were significant points of disagreement between the town planning experts. These points of difference (as sourced from the Joint Town Planning Report – Exhibit 3) are discussed in paras [38] - [39] below.

  2. Mr Joannides (for the Respondent) contended that:

  1. The provision of an attached dual occupancy on the subject site is inconsistent with the desired future character of locality. Whilst an attached dual occupancy development is permitted in the R2 Zone, the narrow site with a frontage width of 13.715m, will result in a building that is dominated by parking facilities and dwelling entrances. This type of development is not envisaged on the narrow subject site in the R2 zone. The proposed building will have an adverse form, scale, massing and proportions as an attached dual occupancy, and is therefore not in keeping with the desired future character of the area;

  2. Attached dual occupancies are not characteristic of buildings to the southern side of Franklin Street with allotments within similar site frontage widths. Furthermore, the variations sought to numerical controls relating to minimum frontage width, front setback and wall lengths, as well as inadequate design provisions to attached dual occupancies, contribute to the adverse massing of the building to Franklin Street that are not in keeping with the desired future character of the area;

  3. An attached dual occupancy with a frontage width of 13.715m does not adequately protect the amenity of residents, being the future occupants of the dwellings. A dwelling with a site width of 6.86m does not provide sufficient internal amenity for future occupants of these dwellings, for what is expected of an attached dual occupancy dwelling in the R2 zone;

  4. The parking facilities dominate the street elevations of dual occupancy dwellings and will adversely impact the character of the streetscape. Noting that the lot has a frontage of only 13.715m, the single garages are considered to visually dominate the Franklin Street frontage of the site. The garages and adjoining piers have a width of 3.59m and 3.47m respectively, which make up over half of the 13.715m frontage width of the site. Furthermore, the first floor to the dwelling is setback 2.55m and 2.65m from the side boundaries (respectively), which further reiterates the visual dominance of the garages to the streetscape;

  5. Reference to the development applications listed at No 32 Blaxland Street Matraville, No 36 Lawson Street Matraville and No 22 Mitchell Street Chifley are not relevant to the subject proposal as they are not located on the subject street or within the immediate context of the subject site. Furthermore, the following additional comments are made to address these examples:

  1. The development application for No 32 Blaxland Street sought consent for Torrens title subdivision of an existing attached dual occupancy only and is therefore not relevant to the subject proposal;

  2. The Council Planner’s Report for No 36 Lawson Street fails to provide any detailed consideration or assessment of the non-compliant 13.11m allotment frontage width in considering how the variation satisfies the relevant objectives of the DCP clause;

  3. The Council Planner’s Report for No 22 Mitchell Street includes the following merit assessment of the proposed development:

“The site has an area of 550m2 which meets the minimum lot size, however, the site has a frontage of 13.715m to Mitchell Street. It is noted that the site tapers toward the front and widens toward the rear. The width of the site, when measured at the building line is 14m. Despite the non-compliance with the minimum 15m required frontage it is considered acceptable as it meets the objectives of the zone as follows:

○ Respects the predominant subdivision and development pattern of the locality; and

○ Creates allotments that have adequate width and configuration to deliver suitable building design and to maintain the amenity of the neighbouring properties.”

  1. Ms Askin for the Applicant provided a detailed response to these points in the Joint Town Planning Report, contending that:

  1. The provision of a dual occupancy on the subject site is not considered to be inconsistent with the desired future character of the locality, given the use of the site for the purposes of an attached dual occupancy is permissible in the R2 zone. The locality already includes dual occupancy development on the northern side of Franklin Street, two dual occupancies on the southern side and in surrounding streets;

  2. The frontage of the site will allow for a suitably designed dual occupancy and will provide a dwelling of high internal amenity for the occupants;

  1. The proposed dwellings have a suitable scale and built form which is proportional to the lot and complements the streetscape;

  2. Should the site be developed for the purposes of a single dwelling only, the built form will not differ greatly from that proposed as the development complies with the height and FSR development standards as set out in the LEP and the site coverage, setbacks and landscape controls as set out in the DCP;

  3. The built form for a dwelling house will differ from that of a dual occupancy through the provision of two front entries, two separate garages and two driveways. These elements are not considered to have a significant impact on the character of the locality. The notable elements which dictate the character of the locality are height, number of storeys and setbacks, determining the predominant bulk and scale;

  4. No 32 Blaxland Street was approved for a dual occupancy on a site with a frontage of 13.714m (refer to Figure 1 after [39] below). No 36 Lawson Street was approved for a dual occupancy on a site with a frontage of 13.11m. No. 22 Mitchell Street was approved for a dual occupancy on a site with a frontage of 13.715m. Whilst precedence is not sufficient justification in planning, the assessment of these applications are relevant in the consideration of this proposal, given the issue relates to a site characteristic. The assessments confirm that Council agreed that a site width of less than 14m was capable of accommodating dual occupancy development;

  5. The proposal meets the draft non refusal standard for minimum frontage of 12m for dual occupancies as set out in the Explanation of Intended Effects exhibited by the Department of Planning and Housing (now Department of Planning, Housing and Infrastructure (DPHI)) between 15 December 2023 and 23 February 2024;

  6. Future change in site widths through lot consolidation and boundary adjustments would also impact on the desired future character. Therefore, the provision of dual occupancy development cannot be completely ruled out for the southern side of Franklin Street. Dual occupancy development can only be ruled out if dual occupancies were to become a prohibited development in the R2 zone;

  7. The proposal is consistent with Control 4.2(ii) in the following manner:

  1. Windows and doors are provided on the front elevation at ground and first floor level and the garage doors are not the sole façade elements; and

  2. The garage entries have been recessed below a projecting architectural element;

  1. These are specifically identified in the DCP as measures to soften the visual dominance of parking facilities. Given the proposal meets 2 of the 3 suggested measures, the proposed parking will not be visually dominant; and

  2. Each garage door has a width of 2.41m equating to a total width of 4.82. This represents 35% of the frontage. The garages are set within an architectural feature with emphasis on the front entries, as opposed to the parking structures by siting them within covered porches forward of the garage doors.

Figure 1: photograph of recently completed side-by-side dual occupancy at No 32 Blaxland Street Matraville

Urban Character of the area

  1. The on-going redevelopment of the area was discussed by the parties in terms of the changes already occurring to the urban character of the area. The Respondent contended that the area was not undergoing a “planned major change”, and that the replacement of older dwellings with new single dwellings with predominantly a single driveway/garage within the frontage was the main development trend in the neighbourhood.

  2. The Applicant contended that the changes occurring are indicative of a precinct in transition. The Applicant took the Court to CCS Design Pty Ltd trading as Knight Mapleton Design Partners v Central Coast Council [2024] NSWLEC 1067 at [29]:

“[29] Both parties also referred to the findings of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD) There is direct commentary that (SJD at [54]):

“… The desired future character for a neighbourhood or area can evolve over time, responding not only to the provisions of [the applicable planning instrument] but also to developments carried out in accordance with development consents granted under [the applicable planning instrument] and the EPA Act.””

  1. I consider that in this case, there are changes occurring in the neighbourhood of the site which comply with the provisions of the LEP and the R2 zone and reflect the economic factors encouraging the replacement of older dwellings in the area with new, more substantial dwellings on a single existing lot. Where dual occupancies have occurred to date, Council contended that these have generally been on the larger lots with a frontage of at least 15m, which has ensured minimal visual intrusion into the streetscape and maintenance of front landscaped areas and on-street car parking spaces.

NSW Government Housing Reforms

  1. The Respondent tendered a submission made by Randwick City Council as endorsed by Council at its meeting on 27 February 2024 to the Department of Housing, Planning and Industry in response to the exhibited NSW Government Housing Reforms (Exhibit 7) (Council’s submission).

  2. The Respondent advised in the Council’s submission that the Council had undertaken significant work on medium density development in the Housing Investigation Areas in the Randwick Local Government Area (LGA), with “each precinct’s existing subdivision pattern, slope, vegetation and access points [being] assessed. This was followed by a high-level exercise in potential lot consolidation patterns. The result of this exercise was tailored minimum lot frontage controls contained within the site specific DCP for each precinct.” This research included assessing the appropriate lot width for side-by-side dual occupancies in the precinct and what impact any minimum lot frontages would have on the Council’s housing target.

  3. In particular, the Council’s submission referred to its investigation of dual occupancy minimum frontage (specifically in relation to the 12m minimum frontage proposed in the NSW Government Housing Reforms) as follows:

“… extensive testing as part of Amendment 9 [to the LEP] indicated that once allowances are made for the side setbacks (0.9m-1.2m) and a single width garage (3m) there is approximately 2m remaining at ground floor for any habitable space towards the front of each dual occupancy [with a minimum of frontage width of 12m]. This leads to unused internal spaces or recessed front entrances, both outcomes reducing any passive surveillance of the street.”

  1. The Council’s submission reiterates the work done by Council in establishing the precinct design controls in the DCP and in particular the minimum frontage of 15m for side-by-side dual occupancy development in the locality of the site.

  2. The Respondent contended that the Council has researched the DCP frontage width development standard for dual occupancies and has established that a minimum 15m is required to allow for a single garage, front door and ground floor window on the front façade of each dwelling in a dual occupancy in the area of the site.

  3. The Applicant contended that the proposed development meets the draft non-refusal standard for minimum frontage of 12m for dual occupancies as set out in the Explanation of Intended Effects exhibited by the Department of Planning and Housing (now Department of Planning, Housing and Infrastructure (DPHI)) between 15 December 2023 and 23 February 2024 (as part of the NSW Government Housing Reforms).

  4. Stage 1 of the NSW Government Housing Reforms permits dual occupancies and semi-detached homes in the R2 low-density zone across NSW (with some policy exclusions). The non-refusal standards proposed for Stage 2 of the low and mid-rise housing reform have not yet been finalised and according to the DPHI website will be based on feedback from councils and other stakeholders.

  5. The Respondent contends that the Applicant’s reference to the Explanation of Intended Effects exhibited by the DPHI is not relevant to the subject proposal in that the standards raised by the Applicant do not form any current State Environmental Planning Policy or consideration of this development application.

  6. I note that the non-refusal standards/development standards proposed for stage 2 of the NSW Government’s low- and mid-rise housing reforms will be based on feedback from councils and other stakeholders. At the date of this decision there has been no final decision by the NSW Government on this stage of these reforms, including whether the exhibited proposed non-refusal standard for dual occupancies of minimum lot width of 12m will be introduced for this area.

The Weight to be given to the DCP

  1. The weight to be placed on the DCP controls was a matter on which both parties made submissions. The Respondent and Applicant both referred the Court to Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75]:

“The consent authority has a wide ranging discretion – one of the matters required to be taken into account is ‘the public interest’ – but the discretion is not at large and is not unfettered. DCP 23 [Canterbury Development Control Plan No 23] had to be considered as a “fundamental element” in or a “focal point” of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.”

  1. The Applicant contended that:

“In these proceedings, it is notable that all of Council’s remaining contentions relied upon as [the] basis for refusing the DA derive from the DCP. In circumstances where the proposal is compliant with all of the applicable development standards in the LEP and meets the objectives of the R2 zone, the Court should not be minded elevating the weight and status of the DCP as such that it forms the basis for warranting refusal of the DA. To do so would, in effect, disrupt the established hierarchy of the planning instruments and the basis for the assessment and determining [of] development applications.”

  1. The Respondent tendered the Second Reading of the Environmental Planning and Assessment Amendment Bill 2012 (the bill), drawing the Court’s attention to specific comments in this document on the operation of DCP’s:

“…The bill … will ensure that consent authorities will be able to continue assessing development against their existing development control plans, but they must adopt a more flexible performance-based approach. The bill makes it clear that development control plans are guidelines, and have less status than local environmental plans and State environmental planning policies in the assessment process. The bill also makes it clear that development control plans implement planning instruments rather than the other way around.

The bill provides where a development application does not comply with a standard, the consent authority must apply the development control plan flexibly and allow alternative solutions to address these aspects of the development.”

  1. Section 4.15 of the EPA Act provides the framework for the determination of development applications. Under s 4.15(1)(a)(iii) of the EPA Act, in determining a development application, a consent authority is to take into consideration any development control plan which is of relevance to the to the development the subject of the development application.

  2. Subsection 4.15(3A)(b) of the EPA Act provides as follows:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

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

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

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

  1. It is noted that Planning Circular PS 13-003 (the Circular) (as issued by the then NSW Department of Planning Infrastructure in March 2013), continues to advise that the Environmental Planning and Assessment Amendment Act 2012 (the Amendment Act) makes it clear that the principal purpose of a DCP is to provide guidance to a consent authority and to people who are proposing to undertake development on land to which the DCP applies.

  2. The Circular further advises that:

  1. DCP’s retain an important role in the planning system as guidelines for development and must still be considered by councils in assessing development applications.

  2. The Amendment Act reinforces that the provisions contained in a DCP are not statutory requirements and are for guidance purposes only.

  3. The Amendment Act does not specify how much weight should be given to a DCP. Instead, the weight a consent authority gives to a DCP in assessing a development application will depend on a number of factors, including whether the DCP provides a sensible planning outcome that is consistent with other policies, including all council LEPs.

  4. If a development application does not comply with provisions in a DCP, a consent authority must be flexible in the way it applies the controls and also allow for reasonable alternative solutions to achieve the objectives of those standards.

Consideration

  1. Having considered the submissions of the parties and the material presented by the town planners in their most recent Joint planning report and in their evidence to the Court, I have reached the conclusion that the DA should be refused on the basis that the proposed development of a side-by-side dual occupancy of the site would lead to an unacceptable design outcome, directly attributable to the 13.715m frontage width of the site.

  2. I accept the Respondent’s submission that the Council has researched the DCP minimum frontage width standard (most recently in response to the NSW Government Housing Reform proposals) and has established that a minimum 15m site frontage width is required for a side-by-side dual occupancy in the area in which the site is located to allow for a single garage, front door and ground floor window within the front façade of each dwelling.

  3. I consider that the parameters for the achievement of the key design attributes for a side-by-side dual occupancy in this area have been effectively distilled into the minimum frontage width standard for this area in the DCP, through the research undertaken by the Council.

  4. In reaching this decision I have placed significant weight in my consideration on the DCP minimum frontage width development standard in this area for side-by-side dual occupancies of 15m, for the following reasons:

  1. The proposed development would result in a front setback area that is dominated by garages and excessive hard stand area, with restricted scope for landscaping the front setback area and limited interaction with and passive surveillance of the street and the public domain;

  2. The frontage of the proposed side-by-side dual occupancy would be taken up by garages and front doors, with no fenestration at ground level, and would be out of character with the existing and developing surrounding R2 area; and

  3. A similar design outcome is demonstrated by the example of a recently constructed side-by-side dual occupancy at 32 Blaxland Street, Matraville, a site with a frontage of 13.714m referred to by both parties and inspected after the on-site view (Refer to Figure 1 above). I consider that the development at 32 Blaxland Street incorporates excessive hard stand area in the front setback, with the garages and central driveway dominating the front elevation, and no opportunity for landscaping the front setback area.

  1. I also agree with the Respondent that the R2 residential area surrounding the site is not undergoing a “planned major change”. Redevelopment through replacement of older dwellings in the immediate area is occurring in keeping with the R2 zone objectives and is limited to single dwellings and dual occupancies, the latter particularly occurring on the northern side of Franklin Street where individual site frontages are greater than 15m. I consider the DCP controls provide a framework for future development of the area that will respect the character of the area, particularly in terms of landscaped front setbacks and and built form.

Conclusion

  1. For the above reasons the appeal is dismissed.

Orders

  1. The Court orders:

  1. The appeal is dismissed.

  2. Development Application DA/57/2023 seeking development consent for the demolition of existing structures and construction of a two-storey attached dual occupancy on land legally described as Lot 2668 DP 752015, being 181 Franklin Street, Chifley, is refused.

G Kullen

Acting Commissioner of the Court

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Decision last updated: 29 January 2025

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