CCS Design Pty Ltd trading as Knight Mapleton Design Partners v Central Coast Council

[2024] NSWLEC 1067

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

6-7 December 2023

Date of orders:

21 February 2024

Decision date:

21 February 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is dismissed.

(2)   Development application DA/62934/2021 for demolition works and construction of a multi dwelling housing development at 34 Warrah Street, Ettalong Beach is determined by refusal of consent.

(3)   The exhibits are returned with the exception of the following exhibits which are retained A, B, D, E, G and 2.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – desired future character – front setback configuration – streetscape presentation – visual privacy – non-compliance with the minimum lot size for multi dwelling housing

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 8.7, 8.15

Central Coast Local Environmental Plan 2022, s 1.8A

Environmental Planning and Assessment Regulation 2000, cl 55

Gosford Local Environmental Plan 2014, cll 4.1B, 4.3, 4.4, 4.6

Cases Cited:

Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Wehbe v Pittwater Council [2007] NSWLEC 827

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

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

Texts Cited:

Central Coast Development Control Plan 2022

Gosford Development Control Plan 2013

Category:

Principal judgment

Parties:

CCS Design Pty Ltd trading as Knight Mapleton Design Partners (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
P J Donnellan & Co Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/40611

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Central Coast Council (Council) of Development Application DA/62934/2021 (DA).

2. The DA seeks consent for demolition works and construction of a multi dwelling housing development at 34 Warrah Street, Ettalong Beach, legally described as Lot 595 in Deposited Plan 10570 (site).

Site and setting

3. The site sits on the southern side of Warrah Street and is regular in shape, with a width of 15.24m and depth of 47.93m. The survey plan indicates the site area as 727.2m² (Ex C). There is a fall from south to north, with the survey plan indicating reduced levels ranging from 4.38m at the north west corner and 5.90m at the south-east corner of the site. There is an existing two storey cottage and three outbuildings on the site at present, along with considerable vegetation including canopy trees. There is also a canopy tree in the road reserve immediately at the front of the site.

4. The surrounding locality is residential in character with single and two storey development and a combination of single dwellings on individual lots along with newer multi dwelling developments. For example 32 Warrah Street, to the immediate east of the site is occupied by a multi dwelling housing development. 36 Warrah Street, to the immediate west, retains a single storey cottage and garage.

Proposal

5. The Court supported an application to amend the development application the subject of the appeal on the first day of the proceedings. As a consequence, the proposal before the Court involves the documents and plans tendered as Ex C, D, E, F and G in the proceedings. The proposal before the Court, as amended, can be summarised as comprising:

• Demolition of all existing improvements on the site and removal of vegetation, with the exception of an existing canopy tree located towards the rear of the site which would be retained.

• Construction of a multi dwelling housing development comprising three x two storey dwellings. Each of the dwellings comprise: open plan living areas, three bedrooms with an additional “sitting room”, laundries and various bathroom arrangements. Two dwellings had double garages and one a single garage. Each had outdoor areas of varying configurations.

• Provision of a new internal driveway along the western boundary.

6. Further proposed works include: considerable land filling (the ground level of the multi dwelling housing development would sit, generally, at a common reduced level of 5.87m), nominated landscaping (particularised at Ex G), other civil works including stormwater management infrastructure and the like.

Planning controls

7. Central Coast Local Environmental Plan 2022 (CCLEP) applies to the local area today. However, the parties drew my attention to the savings provisions under cl 1.8A of CCLEP which provide, relevantly, as follows:

(1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

8. There is no dispute that the DA was lodged with Council before the commencement of CCLEP (Ex 2 par 22). Therefore, this DA must be determined as if CCLEP had not commenced. In turn, Gosford Local Environmental Plan 2014 (GLEP), repealed by Central Coast Local Environmental Plan 2022, continues to apply to the evaluation of the DA.

9. The site, and all immediately surrounding land, is zoned R1 General Residential under GLEP. Notably, the DA would not contravene height of building or floor space ratio (FSR) controls under cll 4.3 and 4.4 of GLEP respectively. The DA would contravene cl 4.1B which provides for a minimum lot size of 750m² for multi dwelling housing (there is no parallel provision in CCLEP). Clause 4.6 of GLEP (which continues to apply to this application notwithstanding recent legislative changes related to cl 4.6 under the Standard Instrument) includes provisions to allow for exceptions to development standards in certain circumstances. I will come to this later in the judgement.

10. It is notable that the experts do give some consideration to CCLEP in arguing their positions. I understood each of the parties to acknowledge the legitimacy of this, mindful of the findings of Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 [28]-[37]. In short, CCLEP can be considered as if a proposed instrument (under s 4.15(1)(a)(ii) of the EPA Act) and warrants consideration in the evaluation of the DA as such. It is notable that there is no minimum lot size for multi dwelling housing under the provisions of CCLEP 2022.

11. Again, Central Coast Development Control Plan 2022 (CCDCP) would apply to the site were the DA lodged today. However, under the savings provisions at Chapter 1.1.4 of CCDCP, similar provisions to cl 1.8A of CCLEP apply (Ex 5). In turn, and in a formal sense, repealed Gosford Development Control Plan 2013 (GDCP) applies to the evaluation of the DA. The experts give some attention to both of these development control plans.

Proceedings

12. Proceedings commenced with a site inspection. The opportunity was taken to hear from a single objector. There was also the chance to undertake a view along Warrah Street, including at some of the more recent local development.

13. I also note the experts giving evidence in the proceedings were as follows:

Expertise	Engaged by
R Sharma	Town planning	Applicant
R Englund	Town planning	Respondent

Issues

14. Council’s amended statement of facts and contentions (Ex 2) put three contentions which Council suggested warranted refusal of the DA. These can be briefly outlined, as follows:

• Contention 1: Non-compliance with the minimum lot size for multi dwelling housing as prescribed under cl 4.1B of GLEP.

• Contention 2: Considerations relating to desired future character of the Ettalong Beach locality.

• Contention 3: Inadequate amenity for future residents and impacts on amenity of residents of adjoining properties.

15. In addition, an insufficient information contention was raised in regard to solar access.

16. In my opinion, the central merits issues in this case revolved around Contention 2. This contention, as nominated by Council, involved many particulars (Ex 2 pp 14-18). In this instance, it makes sense to focus initially on Contention 2, as doing so assists in the analysis of the jurisdictional questions involved in Contention 1 and some of the amenity-related factors in Contention 3.

Desired future character compatibility considerations

17. Contention 2 is entitled “Inconsistency with Desired Future Character”. An introductory sentence claims the DA should be refused as it is incompatible with the desired future character of the Ettalong Beach locality. The particulars, as nominated in Ex 2, point to various specific concerns.

How is the “desired future character” to be understood

Direct policy provisions

18. At a higher level, I am directed to the objectives of the applicable R1 General Residential zone under GLEP which are, relevantly, reproduced below:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

…

• To ensure that development is compatible with the desired future character of the zone.

• To promote best practice in the design of multi dwelling housing and other similar types of development.

...

19. For comparison purposes, I note that the site also falls within the R1 General Residential zone under CCLEP. The R1 zone objectives under CCLEP include to “promote best practice in the design of multi dwelling housing and other similar types of development”, but do not include an objective relating to ensuring “compatibility with desired future character”.

20. It is reasonable to understand that both FSR and building height development standards under GLEP (and CCLEP) are relevant in the consideration of desired future character. I note the proposal’s compliance with these development standards.

21. Development control plan provisions should also be understood to be useful in considering desired future character. During the proceedings, the parties made reference to the well-known findings of Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang). Council in particular was referring to the finding that in determining a development application, development control plans need to be taken into consideration, as a “fundamental element” in, or a “focal point” of the decision-making process (Zhang [75], [77]).

22. When I turn to GDCP (but also CCDCP), I note that there are references to both local character statements and to various detailed provisions which have a concern with desired future character.

23. Chapter 2.1 of GDCP goes under the title “character” and outlines its aims which include to “establish matters for consideration to support character provisions of the Gosford LEP 2014 …” and to “provide detailed statements of desired character that are consistent with those matters for consideration in order to guide future development”. There is no dispute that, with respect to the detailed statements of desired character, the site falls within the “Sandplain Medium Density” area of the Ettalong Beach Locality. The associated statement on “desired character” for the Sandplain Medium Density area is as follows (Ex 2 p 14).

“These areas should remain medium-density residential neighbourhoods where improved standards of amenity and urban design quality are achieved by new low-rise multi-unit developments that reflect features of the traditional mid-Twentieth Century bungalows which remain distinctive elements of the Woy Woy Peninsula's identity.

Surround each multi-unit development with leafy gardens that conserve existing visually-prominent trees, particularly along back fences and street frontages or verges, as well as providing space for new shady trees and shrubs planted as backdrops to new buildings. Maintain the informal qualities of existing wide grassy street verges and conserve existing shady street trees. Plant a combination of trees and shrubs around courtyards as well as along all property boundaries, and use hedges or fences that are low or see-through rather than tall and opaque in order to complement the informal character of existing garden frontages.

Ensure that new multi-unit developments complement the siting, form and scale of surviving traditional bungalows on nearby properties. Maintain street setbacks that are similar to surrounding properties, and minimise the extent of hard-paved surfaces. Avoid the appearance of long and continuous buildings facing any front or side boundary. Step the shape and height of all visible facades, provide at least one wide landscaped setback that varies in width, and line driveways with avenues of trees and shrubs.

Reflect the modest scale of traditional mid-Twentieth Century bungalows, for example by dividing new developments into individual dwelling pavilions with a varied form or orientation, separated by verandahs or parking structures and landscaped courtyards. Any facades that are taller or longer than neighbouring buildings should be screened by a combination of extra setbacks and balconies or verandahs. Roofs should be gently-pitched to minimise the height of ridges, and flanked by wide eaves that disguise the scale and bulk of exterior walls. Parking is preferable in open carports or part-basements, rather than in wide garages that would accentuate building bulk or dominate visible facades.

In order to complement the scale and design character of traditional bungalows, a "light-weight appearance" is preferable for all visible facades, incorporating walls of windows that are shaded by framed balconies or verandahs plus exterior sunscreens, painted finishes and some sheet or board cladding rather than extensive plain masonry. Where facades face a street, a laneway or a driveway, provide a traditional "street address" with visible verandahs, living rooms and front doors.

Screen driveways, terraces, courtyards and balconies to protect the privacy and amenity of neighbouring dwellings.”

24. CCDCP also refers to this statement, among a listing of other character statements, within a group of “related documents” (last item in Table of Contents). Chapter 2.17 of CCDCP goes under the title “Character and Scenic Quality”. Clause 2.17.1, relating to “matters for consideration”, includes the following objectives:

▪ Provide guidance in the assessment of development applications with regard to character and scenic value considerations

▪ Maintaining the character and scenic quality of an area while considering the desired and likely future character of the area.

25. In this CCDCP provision there is a long list of associated “requirements”. But one notable matter on the list is as follows:

“Development applications are to demonstrate their consistency or compatibility where applicable with:

i) the Character and Scenic Quality Statements incorporated as Related Documents to this DCP”.

…

26. This indicates a continued relevance, under CCDCP, of the statement on “desired character” for the Sandplain Medium Density area.

27. An initial query relates to the weight that might associate with the above character statement. Mr Sharma made clear that he believed the “focus” for the evaluation of the application should be directed to the controls applicable under CCLEP and CCDCP (Ex 4 par 13 and 14). He also inferred that he was familiar with very many recent approvals in the local area and that the subject proposal was entirely in character with these approvals.

Broader considerations on understanding desired future character in this particular context

28. Mindful of Mr Sharma’s comments above [27], I will refer to two other authorities which were cited by the parties in closing submissions. The applicant, I think in particular, referred to the findings of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 [86]-[88] (Stockland), which have become a Court principle in relation to weight to be given to development control plans.

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 the 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.

30. I also note the applicant's reference in openings to SJD [62] and Big Property Group Pty Ltd v Randwick City Council [42]-[44]. In relation to the latter, and selectively applying Big Property [44] to the circumstances here, I should understand that policy controls are frequently generic and do not necessarily account for existing and approved development or the nuances of an individual site.

31. I am also mindful of the provisions of s 3.42 of the EPA Act in regard to the purpose and status of development control plans. A noteworthy point here is that the provisions of a development control plan made for that purpose are not statutory requirements.

32. In the commentary that follows it will be seen that there is some jumping around between GDCP and CCDCP and the evidence of other local approvals in the evaluation exercise. This seems necessary given:

1. The mandatory statutory requirement to consider the GDCP policy provisions (under s 4.15(1)(iii) of the EPA Act), as the applicable development control plan given nominated savings provisions [11] (these savings provisions mean it is GDCP which is relevant in terms of the application of subss 4.15(3A)(a) and (b) of the EPA Act).

2. There is a good sense and “public interest” in giving consideration to CCDCP as an understanding of what Council, as a policy maker, has seen as a bringing up to date of the applicable provisions.

3. There is the need to be mindful of the non-statutory nature of development control plan’s generally; and that existing and approved development can have a function in defining existing and desired future character.

The proposal and character-related development control plan provisions

33. It was the position of Mr Sharma that the proposal conformed with the bulk of the development control plan provisions under CCDCP. He also argued that there was a multitude of other development application that had been approved in the site's local and wider environs which contravened GDCP (and CCDCP) provisions.

34. Ms Englund believed the proposal breached significant provisions in CCDCP and GDCP.

35. It will be seen that, having regard to the both the planning controls and the evidence on existing and approved development, I find essentially that the proposal is not satisfactory having regard to the character compatibility considerations. Mindful of all of the zone objectives and development standards, there are two particular problem areas in my view:

1. Site frontage configuration and,

2. Rear boundary interface.

3. As a merits consideration, the site frontage configuration is determinative of itself and I will deal with it first.

Site frontage configuration

36. The site frontage configuration is an important element when considerations of character are under evaluation. How a new development is perceived in the public streetscape can be very influential in considering whether development is compatible with the desired future character. I agree with Council that the proposal does not provide an appropriate built form or landscaped response with regard to the context of the site and local character ambitions. A number of related factors warrant attention.

36. The proposal would breach GDCP and CCDCP provisions in relation to the front building setback and in regard to the filling proposed in the front setback area. In this consideration a third factor, relating to the front courtyard as private open space also needs to be factored in.

37. The front wall of the proposed building would sit at a setback of 5.2m from the boundary (compared to a 6m numerical requirement under GDCP cl 3.3.3.2.2(b)). The experts, I think, saw a preference in the approach adopted in CCDCP (cl 2.2.5(a)(ii) provides for a minimum front setback “the average distance of the front setbacks of the nearest 2 dwelling houses…”). I agree with the experts that there is little merit in requiring a front setback directly in accordance with CCDCP requirements. This is because the setback to the cottage which adjoins to the west (36 Warrah Street) will likely change with redevelopment at some point. However, if CCDCP requirements are to be front of mind, the proposal would sit in front of the building line to the already developed site to the east (Ms Englund suggested by some 0.8m in oral evidence).

38. Mr Sharma accounts for this by pointing out the “stepped front façade with a variation of the front setback of the front façade (5.2m to 9.75m)” (Ex 4 par 32), which “offers visual interest and diversity” within the “somewhat evolving streetscape”.

39. Mindful of s 4.15(3A) of the EPA Act, the most relevant “purpose” behind the setback controls in GDCP is “(to) surround new buildings with deep soil areas that are sufficient to conserve existing trees or to accommodate intensive new landscaping” (clause 3.3.3.2.1(d)).

40. I would perceive some softening of this position with the more recent provisions of CCDCP. Relevant objectives are (clause 2.2.10):

▪ To improve habitat for native indigenous flora and fauna

▪ To provide for softening of building forms and enhancement of the urban environment

▪ To assist in the reduction of stormwater runoff from a site

▪ To improve urban air quality

▪ To relate landscape design and fencing to the desired proportions and character of the streetscape

▪ To retain existing significant native vegetation on site

▪ To improve the amenity of open space areas

▪ To contribute to streetscape character and the amenity of the locality

▪ To design landscape which contributes to the site’s particular and positive characteristics.

42. An important related aspect for the proposal’s evaluation is the fact of the site levels in the front setback area. An additional setback provision (thus, in concept, also related to the purpose at clause 3.3.3.2.1(d) in GDCP) is that “(there) should be minimal change to existing ground levels within required deep soil setbacks and along all boundaries”. CCDCP (rather than GDCP) adopts a control which limits fill to 1m (clause 2.2.9.1(b)).

43. A first point to observe here is the proposed elevated and enclosed private courtyard area in the front building setback. In a north-south alignment, the courtyard would occupy about 3.2m of the front setback area. Mr Sharma indicated that “the proposal seeks to raise the front yard 1.3m above the natural ground level” (Ex 4 par 55). According to Mr Sharma this was to “be commensurate with the level of the lot adjoining – No. 32 Warrah Street”. In any event, it is clear that the fill would in places exceed 1m in height.

44. Notwithstanding the intended replacement canopy tree within the road reservation and what seems to be two smaller trees and other lower level planting in the front setback (Ex G) the finished level differences (and retaining wall and fencing as a kind of disjuncture between the front courtyard and the existing and street levels) in my opinion directly limit the opportunity for achievement of the purpose at clause 3.3.3.2.1(d) in GDCP (see [40]).

45. Ms Englund also countered Mr Sharma's argument that the amended plans had reduced the impact of the elevated portion of the proposal to the streetscape by introducing a wider at-grade area by indicating that the width of the elevated portion of the site (and retaining wall and front fencing) had increased to some 57% of the site width.

46. Turning to private open space, I also note comments from Ms Englund regarding the height of proposed fencing of the courtyard (both front and eastern side) and concerns relating to visual privacy (Ex 6 pars 36-41). That is, GDCP clause 3.3.3.5.5(c)(iii) provides that “…courtyards should be designed as “outdoor rooms”, incorporating effective screening for privacy …”. It seemed that the fencing to the front courtyard would be just 700mm high and that there would be considerable overlooking from the front courtyard to the neighbour to the east (Ex 6 pars 38-39). The quandary is that if fencing height is increased to provide a reasonable privacy outcome then, mindful of the extent of site fill, the visual massing of the development in the street would increase (for example, at odds with objectives relating to fencing at clause 2.2.10.4 of CCDCP). Attention was also drawn to CCDCP provisions that ground level courtyards are not permitted within the front building setback area fronting local roads (CCDCP clause 2.2.7.3(e)). However, they are explicitly permitted within GDCP (clause 3.3.3.5.5(c)(i)).

47. As mentioned already, in consideration of the fill in the site frontage, Mr Sharma argued that the “front courtyard although raised would be raised at a level commensurate with the adjoining multi-dwelling development” (Ex 4 par 52). However, I can appreciate Ms Englund’s point that plans indicated that finished levels of the adjacent development suggest that the development’s proposed finished levels between about 0.3m and 0.5m higher than that adjacent (Ex 4 par 65).

48. There is the further point about the non-compliance with the requirement for a 0.5m area for landscaping treatment along the side of the driveway, and the proposal providing for 0.15m for the majority of the driveway. On this point I acknowledge Mr Sharma’s reference to other recent approvals for developments also involving treatment similar to that now proposed (Ex 4 par 54). I recall there was also direct evidence in Warrah Street of non-compliance with this 0.5m planting strip. While I note the policy intentions and design benefits of side boundary landscaping, I do not rely on this landscaping edge treatment for my findings.

49. It is very reasonable to turn to the function of recent development or approvals in defining existing and desired future character. However, in regard to this, it did not seem to me that the applicant (through Mr Sharma or otherwise) provided convincing evidence about other examples of this juxtaposition of non-compliant fill at the site frontage, non-compliant front building setback, along with what I will suggest to be unresolved privacy treatment in regard to the front courtyard. While Mr Sharma cited examples on other issues, I think the most apposite comparable example to the proposal’s site frontage configuration was the adjacent development at 32 Warrah Street. When I compare the proposal to this adjacent development all I can see is the proposal as a more detracting element, in regard to local character ambitions under both GCDP and CCDCP. Otherwise, Ms Englund’s evidence was that other examples of areas of private open space in the front setback areas are “generally at existing ground level” and provide satisfactory privacy responses (Ex 6 par 44).

Finding

50. While noting the proposal’s compliance with GLEP development standards for height and FSR, it is clear that the front setback configuration, inclusive of the planned land fill in the front setback area (upon which the front of the proposed building would sit) and the building’s imposing encroachment into the front setback area, even mindful of proposed landscaping, would be at odds with other relevant character-related controls.

51. It is my view that these features are such that the proposal would bring about a substandard visually dominant streetscape presentation. The front setback configuration, reliant as it is on an essentially level building platform for all three housing units, would provide a poor urban design outcome, something planning controls are directly seeking to resist as this local area continues to evolve.

52. I am also of the view that the front setback configuration is unsatisfactory on amenity grounds in regard to its intended private open space function, and in regard to visual privacy to the east.

53. Notwithstanding zone objectives relating to providing for the housing needs of the community, I believe this front setback configuration to be a determinative aspect of the proposal. Both the now repealed but applicable (ie GLEP and GDCP) and the more recent (CCLEP and CCDCP) policy provisions applying to this local area are looking for higher quality rather than very basic responses to context, as multi dwelling housing developments continue to be developed in the local area. This is evident in the unusually direct reference to this housing type in the zone objective for both the applicable and more recent local environmental plan (“[promotion of] best practice in the design of multi dwelling housing”). There is also the fact of the calling up of the historical character statements in CCDCP with its ambitions for “urban design quality” and surrounding dwelling unit housing with “leafy gardens”.

54. As indicated earlier, the applicant drew my attention to the findings in Stocklands, which among other things indicate that, at [87]:

“[a] development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.”

55. In this instance, I accept the closing submissions from Council that a “careful approach” is necessary in coming to a view that relevant policy has been selectively applied. In this instance, I was not satisfied that the references to other approvals in the applicant’s evidence and submissions proved the point.

56. The concern is demonstrated having regard to the applicant’s arguments in support of the rear setback contravention by referencing the non-compliance of 32 Warrah Street. However, a clear difference here was that the subject site interfaced with the private courtyard of a neighbour to the south, whereas 32 Warrah Street did not.

57. It is necessary to have at least some understanding of the “the nuances of (an) individual site” (see [1]) when references to other approvals seek to prove an argument that policy has relevantly been set aside. I do not believe that the limited details provided or selective references to very dated Council assessment reports in support of the applicant’s position (Ex 6 par 20) is sufficient on that front.

58. But further, and having regard to Stocklands, an unusual situation arises here with the fact that Council has adopted a new development control plan quite recently. One can reasonably assume public participation in accordance with regulatory processes. It seems premature to be assuming too soon, or without more comprehensive evidence, that the relevant provisions should be set aside based on historical development assessment.

Other character related provisions

59. In oral evidence, Mr Sharma agreed that the proposal did not accord with a number of GDCP numerical provisions, including in relation to: (1) 2m minimum deep soil provisions along the site setback and 6m along the rear setback (2) tree removal, (3) maximum building depth and (4) solar access for Unit 2 (ie the middle unit). Ms Englund also claimed that the proposal contravened the following provision of CCDCP: (1) rear setback of 4.5m under clause 2.2.5(c)(i), (3.502m proposed), (2) articulation/wall length requirements under clause 2.2.6.1(a).

60. Without discounting other non-compliances, for me the most relevant further consideration is that relating to the rear boundary. As introduced above, an unusual relational configuration presented itself here with a very proximate neighbouring dwelling with a courtyard extending directly to the common boundary. The neighbouring dwelling sat below the existing (and proposed) finished levels as proposed for the private open space of Unit 3 (the rear unit). The design response to this configuration was unresolved, with landscape plans (Ex G, and the only plans indicating fencing treatment) suggesting retention of an existing low fence (which would allow immediate and direct overlooking from Unit 3 to the neighbouring courtyard until a proposed hedge grew to a screening height) and provision of a Water Gum in inappropriately close proximity to the boundary (Ex 6 par 24). That is not to say that a suitable design response is not available. But, as presented, this rear boundary interface configuration was a significant further detracting element of the proposal, given the likely immediate neighbour amenity impact.

61. As indicated earlier, the merits findings in relation to the front setback configuration are determinative. But given it is jurisdictional, it is appropriate to also give attention to Contention 1 which I turn to now.

Minimum lot size contravention

62. Under cl 4.1B of GLEP, among other things, a minimum lot size for multi dwelling housing is nominated as 750m2. The lot size of the site is 730.4m2, providing for a contravention of this development standard. Clause 4.6 of GLEP provides for a pathway for the granting of development consent even though the development would contravene a development standard. I note briefly that the DA appeal before me here, needs to be assessed under the provisions of cl 4.6 of GLEP as applying prior to 1 November 2023. It is these provisions which are under attention in my consideration below.

Conditional permissive powers

63. The permissive powers within cl 4.6(2) of GLEP (as applying prior to 1 November 2023) which allow approval of a proposal notwithstanding a contravention of a development standard are subject to the restrictions at subcll 4.6(3)-(5) of GLEP:

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Planning Secretary must consider—

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

64. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) of GLEP to enliven the permissive power under cl 4.6(2) to grant development consent in instances of a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [14]).

65. The first opinion of satisfaction (under cll 4.6(3) and 4.6(4)(a)(i) of GLEP), is in regard to a written request from the applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3) of GLEP.

66. The applicant has opened the door to the Court’s consideration of the application of the permissive powers at cl 4.6(2) of GLEP by providing a written request seeking to justify the contravention. The written request formed Appendix A to a Statement of Environmental Effects dated September 2021 and accompanying the Class 1 Application to the Court (Ex A).

Particulars of the contravention

67. The written request indicates that the proposal would provide for a 2.6% departure from the 750m2 minimum lot size development standard.

Whether written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances.

68. The first opinion of satisfaction, under cl 4.6(4)(a)(i) of GLEP, itself involves two thresholds. The first of these is that a consent authority must not grant consent unless it is satisfied that the written request has adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances (GLEP cll 4.6(3)(a)). The written request seeks to demonstrate this mindful of Preston CJ’s findings in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). Among other references, the written request refers to the first “Wehbe way”, seeking to show how the development achieves the objectives of the standard, notwithstanding the contravention. 

69. There is one nominated objective to cl 4.1B of GLEP, as follows:

The objective of this clause is to achieve planned residential density in certain zones.

70. The written request indicates that the “proposal is well within the allowed FSR … under Gosford LEP …” (p 23). The applicable FSR control is 0.5:1. Ex D indicates that the proposed FSR is 0.49:1 (Ex D Drawing DA030 P7). To argue that comparison demonstrates the development is “well within” the FSR control may be an exaggeration. Nonetheless, I do acknowledge that floor space ratio is also used as an indicator of planned density. I also note the reference in the written request to the relatively small proportionate contravention (2.6%). It is reasonable to consider a degree of imprecision when the objective is that of achieving planned density. Together, I accept that the written request has adequately demonstrated that the development proposal achieves the objectives of the standard, notwithstanding the contravention. In turn, mindful of Wehbe, the written request has adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances.

Whether written request adequately demonstrates sufficient environmental planning grounds to justify the contravention

71. One of the other requirements, before the permissive powers of cl 4.6 of GLEP are triggered, is for there to be a finding of satisfaction, on the Court’s part, that the written request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify the contravention (GLEP cll 4.6(3)(b) and 4.6(4)(a)(i)).

72. The written request’s arguments can be synthesised into nine points, argued as planning grounds, seen as justifying the contravention.

1. The site has sufficient area and dimensions to cater for the erection of multi dwelling housing.

2. That strict enforcement of the minimum lot size control would hinder the desired development outcome for the site. An example is provided of another site, but the principal that is argued is that an attached dual occupancy development could be developed on the site without a minimum lot size contravention (conforming with a minimum lot size requirement of only 550m2 under cl 4.1B of GLEP). Noting that the proposal would accommodate three dwellings, a dual occupancy development would be at odds with Central Coast and State ambitions relating to housing supply. It was put it this way in the written request (p 25):

The proposed development would be in line with draft Central Coast Regional Strategy that is the New South Wales government’s long-term land use plan for the region, which covers the Gosford City and Wyong Shire local government areas. The Regional Strategy contains policies and actions designed to cater for the region’s projected housing and employment growth over the next 20 years. Greater housing choice is prioritised to satisfy the communities’ desire for smaller households the plan places emphasis on providing new housing in existing and committed growth areas.

…

3. That the proposal meets the majority of prescribed controls, noting compliance with GLEP development standards for height and FSR.

4. That there are numerous examples of recent multi dwelling housing development with “the same design scale, height, setbacks, site cover and parking” (written request p 23). Nineteen developments are then listed in the suburbs of Ettalong Beach, Booker Bay, Umina Beach, Blackwall and Woy Woy.

5. The proposal would not bring detrimental amenity impacts on neighbouring properties.

6. The proposal would not bring detrimental effects on the public domain.

7. The proposal meets the objectives of the particular development standards.

8. The proposal meets the zone objectives.

9. The proposal meets certain objectives of the EPA Act and strict enforcement “would hinder the desired development outcome for the site”. The following references to an earlier version of the EPA Act are indicated (written request p 27) [sic]:

(i) the proper management, development, and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and coordination of the orderly and economic use and development of land

73. Before considering these grounds, I turn to the judgment of Preston CJ in Initial Action at [24]:

24 The environmental planning grounds relied on in the written request under cl 4.6 must be “sufficient”. There are two respects in which the written request needs to be “sufficient”. First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter.

74. I am also mindful of the findings of the Chief Judge in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, at [51] and the requirement for me to be satisfied that the written request has in fact demonstrated “that there are sufficient environmental planning grounds to justify contravening the development standard”.

75. Initial Action [24] indicates that the focus of cl 4.6(3)(b) of GLEP is on “the aspect or element of the development that contravenes the development standard, not on the development as a whole”. I note that a minimum lot size control is not so easily compartmentalised as say a building height contravention. The focus in this instance is on the size of the lot. It follows for me that the question does need to be asked as to whether the size of the lot is fit for the development. I have determined to consider all of the planning grounds, nominated above (as a synthesis of the written request’s relevant content), as relevant grounds. The test is that, together, they need to satisfy me that they demonstrate “that there are sufficient environmental planning grounds to justify contravening the development standard.

76. The first planning ground outlined above I would think to be true, but it does little to assist me in this particular case.

77. In relation to the second planning ground, I can agree that, among other things, it is reasonable to acknowledge a planning ambition at local and regional levels to provide for housing supply. In regard to that particular ambition, providing two dwellings rather than three would be seen as suboptimal. Two points can be made in response. First that housing supply objectives need to “mesh” with local planning controls in order to read the full picture on planning ambition; and second that it is not clear at all that this site is not capable of providing for three dwellings, certainly if “smaller households” (see [72(2)]) are a target. Each of the three dwellings as proposed are quite large with three bedrooms, upstairs and downstairs living rooms and multiple bathrooms.

78. In relation to the third planning ground, it is clear enough that the proposal complies with the majority of the prescribed controls. It is important to acknowledge the proposal’s accordance with height and FSR standards. However, as outlined previously, it does not comply with certain important prescribed controls and objectives. Were the site a little larger there may be a better capacity to comply with such provisions.

79. In relation to the fourth planning ground, I am not satisfied that the nuances of individual sites have been properly demonstrated in the written request to prove this point, including in regard to its cross-references to the accompanying statement of environmental effects (see [57]).

80. In relation to the fifth planning ground, and as outlined previously, the proposal would bring about a very obvious adverse privacy impact to the rear, up until proposed planting becomes effective, which could take a considerable period of time. Again as indicated previously, there would also be an adverse privacy impact to the neighbour to the east.

81. In relation to the sixth planning ground, and as outlined previously, the proposal would adversely impact the public domain due to its non-compliance with the front building setback control, fill quantum in the front setback area and retaining configuration which restrict landscaping capacity.

82. In relation to the seventh planning ground, I have indicated above that the proposal meets the development standard objective. This was when I was considering whether the written request has adequately addressed the requirement to demonstrate the requirements of subcl 4.6(3)(a) of GLEP. In this instance I am unconvinced that this point alone demonstrates sufficient planning grounds to justify the contravention, and the test of subcl 4.6(3)(b).

83. In relation to the eighth planning ground, I accept that the proposal meets some of the zone objective as demonstrated in the written request. While mindful of the arguments in the written request, the site is not large enough for the proposal as designed. I am not satisfied that the proposal is consistent with the following two zone objectives:

• To ensure that development is compatible with the desired future character of the zone.

• To promote best practice in the design of multi dwelling housing and other similar types of development.

84. The ninth planning ground refers to earlier provision of the EPA Act. While current s 1.3 includes objects similar to those cited in the written request, the objects at s 1.3(g) were not included in the old s 5. They refer to the promotion of “good design and amenity of the built environment”. The written request’s commentary in relation to the object of the EPA Act are incomplete and unconvincing.

85. Based on the above, the written request has not been able to satisfy me that it adequately demonstrates sufficient environmental planning grounds to justify the contravention.

Conclusion

86. Front setback configuration is important to how this proposal would relate to its setting and the desired future character. The proposed configuration, involving a breach of front setback provisions and reliant as it is on significant land fill and an essentially level building platform for all three housing units, would bring about a significantly substandard, visually dominant, streetscape presentation. This is something planning controls are directly seeking to resist as this local area continues to evolve. For this and other reasons, as indicated above, the proposal would fail on the merits.

87. In regard to the minimum lot size development standard contravention, it is also the case that the applicant’s written request has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of GLEP. The deficiency is in the demonstration that there are sufficient environmental planning grounds to justify contravening the development standard.  Mindful of cl 4.6(4)(a) of GLEP, the facultative powers of cl 4.6(2) of GLEP are not available. In these circumstances, of the contravention of the minimum lot size development standard at cl 4.1B of GLEP, there is no jurisdiction to grant consent. In turn, the DA appeal would also be dismissed on jurisdictional grounds.

Orders

88. The Court orders that:

1. The appeal is dismissed.

2. Development application DA/62934/2021 for demolition works and construction of a multi dwelling housing development at 34 Warrah Street, Ettalong Beach is determined by refusal of consent.

3. The exhibits are returned with the exception of the following exhibits which are retained A, B, D, E, G and 2.

P Walsh

Commissioner of the Court

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Decision last updated: 21 February 2024