David Kettle Consulting Pty Ltd v Gosford Council

[2008] NSWLEC 1328

Land and Environment Court

of New South Wales

CITATION:

David Kettle Consulting Pty Ltd v Gosford Council [2008] NSWLEC 1328

PARTIES:

APPLICANT
David Kettle Consulting Pty Ltd

RESPONDENT
Gosford Council

FILE NUMBER(S):

10638 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- Town houses and residential flat buildings, residential amenity, urban design, compatibility with and impacts on surrounding development, scenic quality, development standards and removal of trees

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Gosford Planning Scheme Ordinance
Gosford Development Control Plan 100 - Medium Density Residential Development.

DATES OF HEARING:

30/07/2008, 31/07/2008 and 1/08/2008

 
DATE OF JUDGMENT: 

20 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen, SC
with Mr M Staunton, barrister
Instructed by Gadens Lawyers.

RESPONDENT
Mr J Maston, barrister
Instructed by PJ Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

20 August 2008

10638 of 2007 David Kettle Consulting Pty Ltd v Gosford Council

JUDGMENT

1 This appeal relates to a development application for a 153 dwelling residential development on the 3.9 ha site at 75-83 Karalta Road Erina. The development comprises:

• One and two-storey townhouses containing 23 villa style dwellings with garage car parking.
• Five, three-storey and one, two-storey residential flat buildings containing 114 dwellings plus semi basement car parking .
• One three-storey residential flat building containing 16 dwellings plus semi basement car parking together with (on the ground- floor) communal recreation and other facilities.

2 A significant proportion of the site is to be set aside for landscaping, including walkways for recreation and access purposes

3 Whilst the application is not one involving State Environmental Planning Policy-Seniors Living the proposed development is nevertheless designed for seniors living.

4 Apart from a single detached dwelling house the site is undeveloped. It has a moderate slope (about 9%), falling from east to west. There is a significant band of mature indigenous vegetation (some trees in excess of 20 m in height) that extends over about 30% of the site. Also, there is a dense hedge of Leyland Cypress trees around the majority of the site’s boundaries as well as along the west side of the adjoining Pine Tree Avenue off Karalta Road.

5 The site is located close to Erina Fair, a regional shopping and service centre. Adjoining to the east in Bronzewing Drive is a residential subdivision developed with detached dwelling houses. To the south is a residential but higher density retirement village (the Pine Needles Village) that is accessed via Pine Tree Avenue. To the west is a relocatable home village and, in excess of 230 m beyond this, is the Erina Oval.

6 The council refused the development application on 8 May 2007.

7 This judgment concludes that the appeal should be upheld and conditional development consent granted, subject to the deletion of two dwellings.

Planning controls

8 The site is zoned Residential 2(c) under the Gosford Planning Scheme Ordnance and the proposed development is permissible with development consent. Adjoining land to the west and south is also zoned 2(c). The zone objectives relevantly provide for the development of 2(c) zoned lands for housing at medium to high density. Adjoining land to the east is zoned Residential 2(a).

9 Clause 28(2) of the ordinance requires that for a residential flat building in the 2(c) zone a site area of 2,000 square metres or more is required and this development standard is comfortably met by the proposal. This clause also requires that, for a residential flat building a minimum site area of 130 square metres is required for each large dwelling and on this basis the site is capable of accommodating 300 dwellings, almost double the number of proposed dwellings.

10 Clause 28(4)(a) requires, in the 2(c) zone, compliance with a building height plane comprising a 45° envelope projected from a point 3.5 m above ground level along the boundary of the site to a maximum height of 12 m. This development standard is almost entirely complied with and little concern has been expressed in relation to the relatively minor non-compliances.

11 Clause 28(4)(b) requires that, in the 2(c) zone, buildings have a maximum vertical dimension of 6 m measured from the highest point of the floor of the topmost floor of the building above natural ground level. This development standard has the effect of limiting buildings to three-storeys. The proposed development exhibits a number of non-compliances with this development standard and an objection under State Environmental Planning Policy No. 1 - Development Standards has been provided. This objection also deals with the non-compliances with cl 28(4)(a).

12 Clause 29B of the ordinance imposes a maximum floor space ratio of 0.75:1 for the 2(c) zone and having a floor space ratio of 0.67:1 the proposal comfortably meets this development standard.

13 Also applicable are State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, Gosford Development Control Plan 100 - Medium Density Residential Development and Gosford Development Control Plan 159 – Character.

14 Section B.1.3 of DCP 100 contains objectives and standards in relation to setbacks and building envelopes. The 6 m setback standard is almost entirely complied with and in many instances is significantly exceeded. The building height plane requirement reflects that contained in the ordinance. DCP 100 also allows buildings to occupy up to 50% of site area and, having a site coverage of about 30%, this standard is comfortably met. At least 40% of the site should incorporate open space areas and, with a provision of about 60%, this standard is also comfortably met.

15 Other relevant provisions of the development control plans are dealt with later in the judgment.

16 When the hearing began on site I heard from a number of residents who had concerns about the development's impact including:

• Overshadowing, aural and privacy aspects and the building bulk of two and three-storey dwellings at the rear of the dwellings in Bronzewing Drive.
• More generally the development is unattractive and would be an overdevelopment of the site and taking also into account the removal of trees it would adversely affect the general amenity of the area.
• The nature and density of the development is likely to result in it degenerating into a residential ghetto.
• The traffic likely to be generated by the 150 dwellings has not been properly addressed and could result in serious traffic congestion and hazards.

17 I also heard from Mr D Leonard the Chairman of the Pine Needles Residents Association Committee. He explained that the association represents the majority of the 351 senior citizens who own 245 dwellings in the Pine Needles Village. The association supports the proposal as being the most suitable and best option for the site. It also wishes that the characteristic avenue of pine trees along both sides of the accessway to the village be retained because the existence of these trees led to the naming of the estate.

18 In accordance with cl 30 of SEPP 65 the Urban Design Panel considered the proposal and on 15 February 2006, recommended that the application be refused. Matters of concern to the panel involve:

• Relationships between buildings, pedestrian and vehicular circulation and open spaces.
• Building alignments in relation to Karalta Road and Pine Tree Avenue.
• The design and amenity of the residential flat buildings.

19 More particularly the panel was concerned that the built form of the three/four-storey buildings needs to be broken down to provide more spatially generous layouts and greater articulation. Also, footprints should be reduced, car-parking basements lowered and roof forms modulated. The existing stand of trees should be retained.

20 The urban design experts - Mr B Newbold (respondent) and Mr R Dickson (applicant) - prepared a joint report and gave oral evidence at the site inspection and subsequently in court. Following the inspection of the site and its environs Mr Newbold provided an amended list of his Principal Concerns that now form the basis of the respondent's case:

• The proposed development raises a number of concerns with regard to the amenity of future residents.
• The proposed development does not demonstrate reasonable compatibility with the adjacent 2(a) residential neighbourhood to the east.
• The proposed development neither protects nor enhances the subject site’s scenic distinctiveness.
• The SEPP 1 objection is not well-founded especially in relation to visual impacts.

21 There was no expert evidence to support the residents concerns about social and traffic impacts and I do not believe these to be matters of any determinative significance.

Residential amenity

22 The original contentions raise questions involving the amenity of the dwellings within the development, including aspects of cross ventilation, privacy and solar access. In addition concerns were raised as to the design of the communal facilities and pedestrian pathways.

23 As a result of changes to the design, including deferred commencement conditions, the respondent did not press these matters and consequently they do not need to be addressed by me. However I do need to make reference to the solar access matter that was eventually resolved (condition of consent) by the removal of a number of the Leyland Cypress trees along the western boundary of the site to ensure solar penetration into the west facing dwellings of several residential flat buildings.

24 During the hearing it became apparent that the Leyland Cypress trees provide a significant screening of the proposed buildings and as they grow, this screening would increase probably to the extent of completely blocking any views of the development from the west. The proposed removal of some of these trees will provide gaps that, to various degrees (subject to other proposed landscaping and the existing Leyland Cypress trees on the west side of Pine Tree Avenue), will facilitate intermittent views of these buildings.

25 All of the dwelling houses in Bronzewing Drive that adjoin the site are substantially screened from the proposed development by the Leyland Cypress trees along the eastern boundary of the site. The neighbouring residents generally seek to have these trees retained. (These trees were originally to be removed but the applicant has now agreed that they be retained). Despite this screening and notwithstanding that the corner of Building C is setback about 8 m from the rear boundary of 24 Bronzewing Drive I agree with the concerns expressed by the owner of that property who objected to having a three-storey residential flat building so close to his home.

26 The applicant responded to this concern by offering to delete from the corner of this building one dwelling (C11) at the third level or if necessary the two dwellings (C11 and C18) at the second and third levels. This would increase the setbacks at these levels from the boundary to 15 m. Whilst Mr Newbold believed that the corner dwelling at ground level and the associated basement should also be removed I do not accept that this is necessary.

27 I agree that with the deletion of the two dwellings as proffered, taking into account the significantly reduced bulk at this corner of the building the distance of separation and the intervening landscaping, the outcome for the neighbour would be entirely within reason.

Character, visual impact and Tree loss

28 Apart from the residential amenity questions and leaving aside for the moment the exceedence of the topmost floor height development standard in cl 28(4)(b) of the ordinance, the principal urban design aspects of this proposal that are in dispute involve the removal of trees from the site and the presentation of the development when viewed from Erina Oval and from the local park in Bronzewing Drive.

29 Relevant to these issues, cl 10(3) and (4) of the ordinance relevantly provides that consent must not be granted for development unless consideration has been given to:

…the objectives of the zone and the consistency of that development within those objectives...
…the character of the development site and the surrounding area…

30 In the context of cl 10 of the ordinance it cannot be argued that the proposed development is not appropriately responsive to the zone objective involving housing at medium to high density, particularly taking into account the development's response to the density and building envelope provisions in cl 28 and the floor space ratio provisions in cl 29B.

31 Conversely, there was considerable disagreement as to whether the proposal is appropriately responsive to the character of its site and the surrounding area. In this regard and leaving aside for the moment the development and other standards that control density, building envelope, height and setbacks, assistance in this regard can be obtained from DCP 159.

32 Section 1.5 of DCP 159 requires consideration of character issues including the protection and enhancement of existing natural features and scenic prominence and distinctiveness. Mr Newbold says this has not been achieved. Section 1.5 also requires that development proposals be compatible or consistent with applicable statements of desired character that are described in the map in Schedule Two. In this regard the site is mostly included in Erina 7: Mobile Home Estates and partly within Erina 6: Medium Density Estates. Erina 7 includes the majority of the western portion of the site but mainly comprises the adjacent relocatable home village. Erina 6 extends to the south of the site and mainly comprises the Pine Needles Village. In this regard, I agree with the urban design experts that the map in Schedule Two has been incorrectly drawn and that the site should have been included in Erina 6. In the circumstances s 1.5 of DCP 159 should be applied to the site in terms of the desired character for Erina 6.

33 The character statement for Erina 6 requires that these areas should remain as medium density residential estates that accommodate older people or people with a disability. Future development should comprise new low-rise multi-unit buildings surrounded by leafy gardens. However DCP 159 does not explain what the term low-rise means and bearing in mind that the LEP effectively permits three-storey buildings this requirement should attract little weight. Importantly however, existing informal scenic qualities of hillside properties should be maintained, including the conservation of visually prominent trees particularly near hill crests or close to ridge lines. In this regard, I am not convinced that the site comprises a hillside property, it not being positioned on the side of a hill. It is nevertheless viewed in the context of the Kincumber Mountain ridge and this should be taken into account.

34 The character statement also suggests that appearance of long or continuous buildings is to be avoided by surrounding new development with leafy gardens, the retention of natural slopes along boundaries and the provision of shade trees. The height and scale of new buildings is to be minimised by using strongly articulated forms including stepped floor-levels and facades including the use of pavilions. Roofs should be simple hips gables or skillions.

35 It was not in dispute that there is a significant band of mature indigenous trees extending over about 30% of the site and I accept that these trees comprise an important natural feature of the site. Mr Newbold contends that these trees also make an important contribution to the vegetated character of the surrounding area including the Kincumber Mountain ridge. Because 75% of these trees are to be removed, this would be contrary to DCP 159 that requires the conservation and enhancement of existing natural features. This would be of considerable concern when viewing the development from Erina Oval, as the near-continuous row of six apartment buildings with little separation between them would dominate. He expressed similar concerns in relation to the presentation of two of the residential flat buildings to the park and to several dwellings in Bronzewing Drive.

36 Mr Newbold was also concerned at the unsatisfactory design of the residential flat buildings taking into account the requirement of DCP 159 that urges the use of strongly articulated forms including stepped floor levels. This concern results from the rectilinear form of the buildings with limited or no articulation; successive roof tops with near identical relative levels; repetitive fenestration; and insufficient setbacks between buildings.

37 Mr Dickson acknowledged that vegetated hillsides and ridge-tops are distinctive places however the trees on the site are detached from the Kincumber Mountain ridge because of intervening urban development including that in and around Bronzewing Drive. Also the view from Erina Oval towards the ridge comprises the dominant mobile home park and foreground vegetation as well as the heavily vegetated hillside of Kincumber Mountain. These views will be largely unaffected by the proposal. He also pointed out that the scenic quality of the site would be enhanced in time as a result of the site's proposed landscaping. In these circumstances it was his opinion that, taking also into account the zoning of the land and the applicable density standards the significant removal of vegetation was not unreasonable. As for the appearance of the proposed buildings when viewed from Erina Oval he was of the opinion that this would be entirely reasonable, are taking into account that: the full height of the buildings will not be seen with only some of their upper levels being apparent above the vegetation; the angling of the facades away from the boundaries; the separation and landscaping between the buildings; the articulation including projecting balconies and facade fenestration; and the varying use of materials and colours. This same reasoning can also be applied to the consideration of the presentation of the buildings when viewed from the park in Bronzewing Drive. He disagreed with Mr Newbold’s, contention that the distance-effect would visually flatten the proposed articulation of each building and variations in facade treatment would not be apparent.

38 In my opinion the proposed development represents a reasonable and balanced approach to the development of this site taking into account its constraints and the applicable planning controls. Despite the non-compliance with the floor height control and the minor non-compliances with the building height envelope I prefer the evidence provided on behalf of the applicant that the development is responsive to the character of the site and the surrounding area. In reaching this conclusion and in dealing with the suggested impacts of the development, significant weight must be given to the zoning of the land that anticipates residential development at medium to high density. In this regard it must be accepted that the land was zoned for this purpose and density, taking into account the vegetation on the site and its relationship to the Kincumber Mountain ridge.

39 Leaving aside for the moment the obvious benefits that are afforded to the development by the existing and proposed vegetation, I accept that the proposed residential flat buildings when viewed from the west and to a lesser extent when viewed from the east could, in terms of their height and form read as long or continuous buildings of the kind sought to be avoided by DCP 159. I also accept that buildings with greater modulation and articulation than as proposed and with greater separation could have avoided this concern altogether. Despite this I do not accept that these buildings are, in this regard, so problematical as to require the refusal of the application. In reaching this conclusion I accept the evidence of Mr Dickson that the buildings do exhibit modulation, articulation and built form separation and taking these matters into account together with the angling of the facades and the varying use of materials and colours this will provide an acceptable outcome when viewing the development from the park or from Erina Oval.

40 Whilst I understand Mr Newbold's contention that these design features will have a reduced effect when viewed from Erina Oval because of the distance of separation, I do not accept that this makes any determinative difference. This is because I expect that the different treatment of each of the buildings will continue to be apparent and as argued by Mr Dickson, to the extent that the appearance of the buildings might have been of concern, as the viewer moves further away, even accepting that the buildings might read as one, they become proportionally less apparent in their setting. More generally I observe that whilst the residential flat buildings may be able to be seen from the local park in Bronzewing Avenue or from Erina Oval, and recognized as such, this is not, of itself a matter of any significance as the site is zoned for medium density development and there can be no expectation that buildings on it should be hidden from view.

41 As referred to above in dealing with long or continuous buildings, DCP 159 recognizes that the appearance of such buildings can be avoided by surrounding new development with leafy gardens. Plainly this development meets that requirement taking into account the retained vegetation on the site including the Leyland cypress trees, the proposed landscaping throughout the site and within the triangular setback areas between buildings as well as the existing vegetation in the locality. About 60% of the site is to be landscaped including over 500 square metres of deep soil planting areas that will enable substantial plantings including numerous canopy trees.

42 There is little doubt that the site has scenic qualities, mainly as a result of the existing trees, but this is not a hillside property where such qualities are required to be maintained and certainly not to the extent that few if any trees may be removed. Having considered the question of tree removal whilst on site, and taking into account the photograph taken from Erina Oval that depicts the heavily timbered Kincumber Mountain ridgeline I am satisfied that even if the top levels of the proposed buildings will be seen amongst the trees they will be well below the ridgeline and any visual impact will be within reason. Again, there is no need to hide the buildings.

43 As referred to above there is an avenue of Leyland Cypress trees along Pine Tree Avenue. Should this development proceed and those trees are left to continue growing, they would most likely obliterate any views of the development from the west. Even if, as is now proposed, a number of these trees (on the site) are to be removed, the remaining trees along the west side of Pine Tree Avenue will maintain this effect.

44 In the circumstances I am satisfied that whilst the site's treed character will be fundamentally changed by the proposed development this change is not unreasonable. I am also satisfied that the proposed development achieves a satisfactory balance between built form and landscape both on the site and in the surrounding area and represents an appropriate response to the planning controls. Of particular relevance here are the envelope height, site coverage, landscaping and density controls in the ordinance. I am also satisfied that the development is compatible with the desired character requirements of DCP 159. Of course the noncompliances with the topmost floor height control and building envelope development standards must also be addressed in terms of the SEPP 1 objection.

The SEPP 1 objection

45 As referred to above the proposed development exhibits a number of exceedences of the development standard in cl 28(4)(b) of the ordinance that sets a maximum vertical distance of 6 m measured between the topmost floor level of the buildings and natural ground level. These non-compliances of up to 4.5 m but generally between 1 m and 2 m, involve Buildings A, B, C, D, E and F and are mainly manifested in the western presentation of these buildings, taking into account the site's downward slope to the west and the partial projection of the basement garages out of the ground. As also referred to above the non-compliances with cl 28(4)(a) are of little significance. The SEPP 1 objection nevertheless deals with both cl 28(4)(a) and cl 28(4)(b) that are unquestionably development standards.

46 In relation to cl 28(4)(b) the objection notes that the ordinance does not contain specific objectives associated with the development standard and thus addresses the 2(c) zone objectives and the building envelope objectives in DCP 100.

47 In Bruce Kerr Pty Ltd v Gosford City Council [2007] NSWLEC 501 it was accepted that the underlying objective of cl 28(4) of the ordinance was to achieve an appropriate residential character and visual bulk. It was nevertheless recognized that a development standard involving floor levels in a building cannot provide much assistance in dealing with visual bulk. (The absence of an articulated objective in the ordinance was then, and is still unfortunate). These findings are particularly relevant here, especially as, in terms of visual bulk, the buildings effectively comply with the applicable building height plane envelopes, these being the more usual and effective means of controlling the bulk and scale of buildings.

48 Notwithstanding the decision in Bruce Kerr, the respondent now submits that the purpose of the topmost floor height development standard is, in effect, that habitable levels of buildings be kept in conformity with the natural topography. Hence, on sloping sites, building floors need to be stepped; and that external walls be limited in height so as to reduce the building's visual appearance and its scale.

49 The objection, utilising a similar approach in each instance deals separately with the non-complying buildings in relation to these objectives. The following comprises the essence of the arguments utilised in relation to Building A which arguments can be generally applied to all of the non-complying buildings. (It is to be recognized that some of these arguments do not address the objectives directly instead providing general support for the proposal, and thus indirect support for the noncompliances).

• The building will be in keeping with Council's desired medium density residential character for the site, as characterised by the 2(c) zone.
• The proposed density is consistent with the controls in the ordinance and will not place unreasonable demands on services beyond what is expected from a medium density residential development.
• The visual bulk of the building is reduced by means of articulation, orientation, materials and finishes as well as spaces between the buildings for landscaping. Lighter materials have been adopted for the upper floors.
• The top floor height variance does not reduce the ability to comply with the maximum building height.
• The proposed buildings are compatible with the adjoining built forms of the Pine Needles Estate and the larger building forms of the nearby Erina Fair.
• The proposed ground fill to raise the ground level will ensure that the western and northern and southern elevations at pedestrian level will best reflect buildings of a medium density residential character.
• The building provides a high level of residential amenity to occupants and neighbours.
• There will be no reduction in the level of privacy, available views and solar access afforded internally and to adjoining properties.
• The site layout enables the maximum of outdoor spaces to provide high-quality usable space and amenity for residents.

50 Taking these matters into account the objection concludes that the variation to the development standard is well founded because the underlying objectives are achieved. Compliance with the development standard is therefore unnecessary.

51 The respondent submits that the objection should not be upheld because the desired character for the site in its context is not achieved. Because the objectives call for a consideration of the height and length of walls that should have an appropriate residential character and visual bulk, the non-compliance is indicative of a development that does not achieve the outcome that full compliance would achieve. The argument that an appropriate residential character can be achieved by raising ground levels to facilitate entrances at pedestrian level is not persuasive because it fails to consider that a complying building could address this aspect in an appropriate manner. Also the provision of access is quite different to the objective of the height standard itself.

52 Visual appearance arguments involving articulation orientation materials and finishes are also not persuasive because these matters have not reduced the visual bulk of the buildings whereas a complying building would produce a significant reduction. Similarly the inadequate gaps between the buildings will not assist. As a consequence it has not been demonstrated that an equal or superior outcome will be achieved by comparison with a complying development. Importantly it is not appropriate to rely on compliance with one development standard in order to argue that it is unreasonable to comply with another. The building height plane envelope and the maximum top floor height control are separate and cumulative requirements of the ordinance.

53 Finally, the respondent submits that arguments such as the enabling of appropriate dwelling layouts to be efficient and the maximisation of usable outdoor areas are not relevant to a development standard dealing with the height of buildings. Also because aspects of amenity such as privacy and solar access are not reduced this does not mean that a complying development would not achieve the same or better outcomes.

54 In response the applicant makes two important submissions. First, by requiring that serious attention to be given to the underlying objectives of the standard, SEPP 1 effectively facilitates different means of achieving the purpose of the development standards. Second the conclusions reached in relation to the underlying objective of the standard in Bruce Kerr namely that of an appropriate residential character and visual bulk, should be affirmed.

55 In seeking to understand these objectives, reference is made to the building envelope objective in DCP 100 that also requires that the height and length of walls relative to side and rear boundaries is of an appropriate residential character and visual bulk. However because the development standard is expressed as a height to an upper floor it is, (by comparison with the building envelope controls), of little use in controlling visual bulk and building height. Whilst an absence of environmental harm cannot and is not relied upon, because this development is no worse than a complying development in terms of character and visual bulk this is a relevant circumstance of the case. It is also contended that this development would comprise the orderly and economic use of land and its overall benefits can be considered in deciding whether to uphold the SEPP 1 objections.

56 It is also submitted on behalf of the applicant that, in dealing with the question of whether compliance with the development standard would be unreasonable or unnecessary, the zoning of the land and its physical character can be taken into account. The site is specifically identified for medium density development and it must be assumed that this was done taking into account its topography and vegetation and its surroundings including the Kincumber Mountain ridge. In this context, having taken these matters into account together with its reasonable density, the development represents a reasonable balance.

57 Having considered the SEPP 1 objections in the light of all of the associated evidence, I agree that what is here proposed is a satisfactory alternative means of achieving the objectives of the development standard in cl 28(4)(a) and (b) of the ordinance that involve an appropriate residential character and visual bulk, particularly taking into account the appearance and scale of the buildings and their relevant context.

58 As I said in Bruce Kerr, unlike the building envelope controls, the floor height development standard is of limited assistance in controlling visual bulk because it does not deal with built form and scale above the uppermost floor level nor does it deal with building length. As for the question of residential character I agree that the proposed buildings will have a medium density residential character that is responsive to the applicable 2(c) zone.

59 In my opinion the floor height development standard can be considered to be a control within the building height and envelope standards that effectively links wall heights to three storeys. In this regard I accept that substantial compliance is achieved. I have reached this conclusion giving some weight to the mitigating effect of variously raising ground levels adjacent to buildings A, B, F and E notwithstanding that from some viewing positions some buildings will continue to appear as more than three storeys. There being no adverse impacts associated with the other standards in terms of character and visual bulk and taking also into account the comfortable compliance with the associated site coverage, landscaped area and density standards, I accept that the underlying purpose of the standard has been met.

60 In the circumstances, having been persuaded by the reasoning provided by the SEPP 1 objections I find that strict compliance with the development standards to be unnecessary and would uphold the objections.

Conclusions

61 As referred to earlier, cl 10(3) of the ordinance requires that consent must not be granted for development unless consideration has been given to the objectives of the zone that provide for housing at a medium to high density. In my opinion this development is appropriately responsive, taking into account the density of surrounding development and the proposal's site density and floor space ratio in relation to the requirements of cll 28 and 29B of the ordinance. I am also satisfied that the proposal represents a satisfactory response to the character requirements in cl 10(4) of the ordinance considering the character of site and the surrounding area and taking into account the development's form and character in the light of the building height plane and height controls and notwithstanding the non-compliance with the wall height control.

62 I have thus been persuaded, that this development comprises a good design outcome and have decided that the appeal should be upheld and conditional development consent granted.

___________________

T A Bly
Commissioner of the Court
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