Fleetqueen Pty Ltd v Newcastle City Council

[2018] NSWLEC 1105

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fleetqueen Pty Ltd v Newcastle City Council [2018] NSWLEC 1105
Hearing dates:	21-22 February 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders:  (1) Leave is granted to rely on amended plans granted by the Court on 19 December 2017, as Exhibit A. (2) The appeal is upheld. (3) Development Application (DA) No. 2015/0820 for demolition of existing structures, two strata subdivisions (of six and two lots), and construction of multi-dwelling housing consisting of six (6) dwellings on Lot 13 Section W DP 21829, and two (2) dwellings on Lot 1 DP 20700, known as 25 Queens Road and 30 Fleet Street, New Lambton, respectively, is approved subject to conditions in Appendix A. (4) The exhibits, except Exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: multi-dwelling housing development; consistency with R2 zone and local planning strategy; lack of respect to amenity and local character.
Legislation Cited:	Environmental Planning and Assessment Act 1979 No. 203 Newcastle Local Environmental Plan 2012
Cases Cited:	Project Venture Developments v Pittwater Council (2005) NSW LEC 191 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Texts Cited:	Local Planning Strategy 2015. The City of Newcastle
Category:	Principal judgment
Parties:	Fleetqueen Pty Ltd (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: Mr Peter Tomasetti, Barrister (Applicant) Ms Angela Pearman, Barrister (Respondent)   Solicitors: Pikes and Verekers Lawyers (Applicant) Newcastle City Council (Respondent)
File Number(s):	2017/117336
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) No. 2015/0820 for demolition of existing structures, two strata subdivisions (of six and two lots), and construction of multi-dwelling housing on Lot 13 Section W DP 21829 (6 dwellings) and Lot 1 DP 20700 (2 dwellings), known as 25 Queens Road and 30 Fleet Street, New Lambton, respectively (the site).

2. The DA was lodged with Newcastle City Council (council) on 4 August 2015. The proposed development was subsequently amended by leave of the Court granted on 19 December 2017, to consist of six (6) dwellings on 25 Queens Road lot, and two (2) dwellings on 30 Fleet Street lot, as shown in amended plans below.

3. DA (15/820) was notified to residents between 14 August to 28 August 2015, and 28 September to 13 October 2015. Thirty two (32) submissions were received. In addition, council conducted a ‘Public Voice’ meeting on 21 February 2017, after receiving two requests during the second notification period.

4. Council presented the DA to the Development Applications Committee of Newcastle City Council on 21 March 2017, which recommended DA 15/820 for approval subject to conditions of consent.

5. Council subsequently determined to refuse the DA on the basis of: inconsistency with zone objectives; not exhibiting best qualities of urbanism, as expressed on the council’s Local Planning Strategy (LPS) 2015; and issues raised by residents that establish unreasonable impacts.

6. A Class 1 appeal against the refusal of DA 16/952, pursuant to section(s) 8.7 (1) of the Environmental Protection and Assessment Act 1979 No. 203 (EP&A Act) was initiated by the applicant on 31 March 2017.

The site

7. The site is located at 30 Fleet Street and 25 Queens Road, New Lambton within a residential area dominated by single and two storey dwellings. Lot 1 DP 20700 is 672.3m2 in area, rectangular in shape which fronts to Fleet Street. Directly to the south, it adjoins Lot 13, Section W DP 1949, which has a rectangular area of 1293m2 that fronts Queens Raod. The site has street frontage along Fleet Street of 13.41m and Queens Road of 20.12m.

8. Existing at the front of each lot is a single storey dwelling with a detached garage and shed located towards the centre/rear of the site. The site is sparsely vegetated with established trees in the rear of each lot.

Relevant planning controls

9. The site is zoned R2 Low Density Residential, pursuant to Newcastle Local Environmental Plan 2012 (NLEP 2012). Cl 2.3 (2) of the NLEP 2012 requires that the consent authority must have regard to the zone objectives, when considering a development application.

10. The development controls of the Newcastle Development Control Plan 2012 (NDCP 2012) apply to this site.

11. The Local Planning Strategy 2015 (LPS 2015) identifies the site as being within a ‘limited growth precinct’, as determined using ‘SAFE’ criteria. The limited growth precinct for residential developments is described in the LPS 2015 as:

The Limited Growth precinct covers the remaining residential zoned land outside of the Substantial and Moderate precincts. In terms of the Newcastle Urbanism principles, development within this precinct is intended to be limited and, as such, the type of development envisaged is to be more suburban in nature but may still include housing types such as townhouses and villas.

(Typically height 8.5m, FSR 0.6:1).

Issues of agreement and contention

12. For this appeal, the council contends that the DA should be refused on the basis of:

• inconsistency with NLEP 2012 zone objective that relates to respect for amenity and character,

• inconsistency with NDCP 2012 building design and appearance objectives and control for R2 zone,

• inconsistency with LPS 2015 for a limited growth precinct,

• insufficient landscaping,

• insufficient waste management and storage, and

• traffic and car parking.

13. Prior to the hearing, the parties agreed that the contentions that relate to traffic, parking, waste and storage were resolved based on amended plans (Exhibit A) or could be resolved in the draft conditions of consent (Exhibit 7).

14. At the hearing, the parties agreed that the issues that relate to landscaping could be resolved by conditions of consent, and to amend Exhibit 7.

15. Council has therefore focused its remaining contentions on consistency with statutory planning instruments and planning strategy for the proposed units 3 and 4, part of Lot 13 Section W DP 21829 (hereafter Queens Road lot). Council contends that these units, located at the rear of the lot, do not provide ‘respectful’ consideration of the surrounding/immediate area, resulting in visual impact to adjoining properties and are ‘out of character’ due to their building bulk.

16. The parties agree that the proposed development complies with all numeric development standards, as provided in the NLEP 2012.

17. The parties also agree that the proposed development complies with all numeric controls of the NDCP 2012.

18. The council has no objection to the proposed dwellings on Lot 1 DP 20700 (hereafter Fleet Street lot).

19. In the hearing, council raised an additional contention identified in the joint expert report (Exhibit 3), although not identified in the Statement of Facts and Contentions (SoF) dated 25 January 2018, relating to insufficient swept paths. This contention was opposed by the applicant and subsequently withdrawn by council.

20. Town planning experts whom presented evidence at the hearing were: Mr Adam Piper (for the applicant); and Mr Garry Fielding (for the respondent).

Are the zone objectives met by the proposed development?

The objectives

21. The site is situated within the R2 low density residential zone, pursuant to the NLEP 2012. The R2 zone objectives are as follows:

Zone R2   Low Density Residential

1 Objectives of zone

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

22. The parties agree that the first zone objective has been met and that the second zone objective is not relevant to this DA.

23. The parties disagree as to whether the third zone objective of the zone, has been achieved by the proposed development, in relation to ‘respects the amenity … and character’. In addition, the parties do not agree on the areal extent of ‘surrounding development’.

Amenity definition

24. A definition of amenity is provided in the NDCP 2012 as:

Amenity - is the term used to describe the features, facilities or services that make for a comfortable and pleasant life. Amenity is not only enjoyed by residents in their homes and gardens but also in the street and public places.

Character definition

25. A definition of character is provided in the NDCP 2012 as:

Character - the combination of the individual characteristics or qualities of a neighbourhood, precinct or street.

Evidence

26. There was considerable discussion and disagreement amongst the experts on what constitutes the areal dimension of ‘surrounding’ that relates to the site.

27. Additionally, the experts were not in agreement on what type of developments are considered ‘compatible’ with the character of the surrounding area.

28. Mr Fielding characterises the surrounding area as having the majority of dwellings being single and double storey detached dwellings with rear yards, and only a limited number of multi-dwelling housing that are single storey.

29. Mr Fielding considers that the term ‘surrounding’ relates primarily to the area contained within neighbouring properties, from the odd number side of Regent Street, the Queens Road/Fleet Street block and including the even number side of Queens Road, immediately adjacent the site. He considers that new developments at 9 and 13 Regent Street are new development anomalies that do not reflect the character of the surrounding area, and that multi-dwelling housing in the area is typically single storey.

30. Mr Piper however contends that the reference to ‘surrounding’ relates to the broader locality beyond the immediate neighbouring properties. He considers the surrounding area extends from the even number side of Regent Street, includes the block bounded by Queens Road and Fleet Street, the even number side of Queens Road and the odd number side of Fleet Street.

31. The surrounding area in Mr Pipers view therefore includes a number of two storey and single story dwellings, as well as two storey and single storey multi-housing dwellings. He draws particular attention to the new developments at 5, 9 and 13 Regent Street, which he considers are reflective of ‘urban renewal’ character within the surrounding area. These developments are two storey detached, attached and multi-housing dwellings that occupy the majority of the building envelope.

32. The experts agree that the R2 zone and the surrounding area of the site is undergoing ‘urban renewal’. However, they disagree as to whether the intent of the statutory controls is to limit this change to maintain predominantly detached dwellings with a rear yard or to allow an increasing number of developments that utilise fully the building envelope including with two storey dwellings.

33. Mr Fielding agrees that the proposed development achieves the numeric requirements to achieve the zone objectives, as defined within both the NLEP 2012 and NDCP 2012. However, he contends that the assessment of the zone objectives is also subjective, of which the proposed development does not satisfy.

34. Mr Fielding acknowledges that there is no statement in the NLEP 2012, NDCP 2012 or LPS 2015, which requires that the bulk or mass of a development must be contained within the front of a lot or that the rear of a lot is limited to a single storey dwelling.

35. Mr Fielding objects to the two storey element of units 3 and 4, which he contends do not match existing housing stock in the area and are not consistent with the ‘limited growth precinct’ aims of the LPS 2015, which have informed the NLEP 2012 and NDCP 2012. He considers that the proposed units 1 and 2 on the Fleet Street lot are a more ‘respectful’ consideration of character and amenity, and would prefer the rear portion of the Queens Road lot to be developed in a similar manner.

36. Mr Fielding contends, to which Mr Piper disagrees, that a two storey dwelling at the rear of a lot, as proposed for units 3 and 4, creates an ‘overbearing’ visual element to neighbouring properties, namely 23 and 27 Queens Road. The effect of overbearing on the neighbouring properties is a reduction in ‘pleasantness’ due to overlooking and overshadowing.

37. Mr Fielding contends that the proposed development is therefore not ‘respectful’ to the surrounding area, and particularly to neighbouring properties at 23 and 27 Queens Road. He measures ‘respect’ in terms of achieving amenity and character ‘compatibility’ with the surrounding area

38. When asked by the Court to define the elements of amenity that are offended by the proposed development, Mr Fielding considers that the ‘pleasantness’ and visual aspects are the most affected.

39. Mr Piper agreed with the elements of amenity as proposed by Mr Fielding, however disagreed that the proposed development offended any of these elements. He affirmed that the proposed development achieves NDCP 2015 controls for overshadowing.

40. Mr Piper is of the opinion that as the proposed development satisfies that standards of the NLEP 2012 and controls of the NDCP 2012 which address amenity impacts, there are no amenity impacts on the surrounding area from the proposed development.

Findings

41. The dimension of ‘surrounding’ area was disagreed by the experts. The Macquarie dictionary defines surrounding as:

surrounding

/səˈraʊndɪŋ/ (say suh'rownding)

noun 1. that which surrounds.

2. (plural) environing circumstances, conditions, etc.; environment.

3. the act of encircling or enclosing.

–adjective 4. that encloses or encircles.

5. neighbouring; nearby; in the environment of.

42. Based on the definition above, I agree with Mr Piper’s explanation of what constitutes the ‘surrounding area’ of the site. The surrounding area must therefore extend beyond the immediately adjacent properties, and include ‘neighbouring and nearby’.

43. The respondent’s expert paid particular attention to the question of whether the proposed development shows sufficient ‘respect’ to the surrounding area. The Macquarie dictionary definition of respect is:

respect

/rəˈspɛkt/ (say ruh'spekt)

noun 1. esteem or deferential regard felt or shown.

2. the condition of being esteemed or honoured.

3. (plural) deferential, respectful, or friendly compliments, as paid by making a call on a person or otherwise: to pay one's respects.

4. consideration or regard, as to something that might influence a choice.

5. a particular, detail, or point: in that respect; in one respect; in any respect.

6. Obsolete consideration.

–verb (t) 7. to hold in esteem or honour: to respect one's elders.

8. to show esteem, regard, or consideration for: to respect someone's wishes.

9. to treat with consideration; refrain from interfering with: to respect a person's privacy.

10. Obsolete to relate or have reference to.

–phrase 11. in respect of (or to), in relation or reference to: the council's policy in respect of garbage collection.

12. with respect to, in relation or reference to: inquiries with respect to a route.

44. In reference to the definition of respect provided above, I note particular relevance to number 9 above, ‘to treat with consideration; refrain from interfering with: to respect a person's privacy’. The parties agree that privacy is an important element in assessing amenity impact. It therefore follows that to achieve privacy would be to show respect.

45. I agree with the applicant that the proposed development is a ‘respectful’ development, which achieves the NLEP 2012 standards (including building height and floor to space ratio, FSR) and NDCP 2012 controls (including privacy, setbacks, building envelope).

46. There is negligible view loss to 23 or 27 Queens Road, and all potentially overlooking windows in units 3 and 4 have been raised (conditioned with a minimum sill height of 1.7 metres above floor level) and oriented to restrict overlooking. I also note that neither overlooking nor privacy are contentions raised by the respondent. In fact, the issue of privacy was not pressed by the respondent as it was deemed to have been addressed by the amended plans.

47. The proposed development attains the building height and FSR standards of the NLEP 2012, and the parties agree that there are no controls that limit the construction of two storey dwellings in the rear of a lot. The use of landscaping and setback between units 3/4 and 5/6, provides a break in the bulk and scale in the building envelope, and also provides for the preservation of views that 27 Queens Road currently enjoys. The effect of the break between these unit blocks is also to establish a separation in the dwellings that reduces the potential for overlooking into the private open spaces (including pools) of the neighbouring properties.

48. In terms of the compatibility test, reference was made to the matter of Project Venture Developments v Pittwater Council (2005) NSW LEC 191 where Senior Commissioner Roseth said:

There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness, it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance though as different in these attributes increase harmony is harder to achieve.

...Where compatibility between a building and surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

1. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential and surrounding sites.

2. Is the proposal appearance in harmony with buildings around it and the character of the street?

The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment...In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping...(emphasis added).

49. The proposed development achieves all the statutory numeric standards and controls required for this type of development, being multi-dwelling housing in the R2 zone.

50. I find there is no ‘disrespectful’ amenity impact on the surrounding area, particularly due to visual or privacy issues from the proposed development. I am satisfied that on the basis of the first question that there are no physical impacts identified arising from the amended plan.

51. I now turn to the second question of whether the proposed development is ‘in harmony’ with the character of the surrounding area as posed in the zone objectives.

52. Consistent with the findings of Senior Commissioner Roseth in Project Venture Developments v Pittwater Council (2005) NSW LEC 191, I disagree with Mr Fielding that the assessment of ‘harmony’ should be weighted towards a subjective assessment.

53. The standards and controls established in the NLEP 2012 and NDCP 2012, including height, FSR, setbacks, landscaping, building materials and private open spaces are intended to support and provide objectively in the achievement of ‘harmony’, and to ensure the character of the surrounding area are ‘respected’, which in turn support achievement of the zone objectives.

49. It is unfortunate that the NDCP 2012 does not specify a control for storeys, which would have allowed consideration of the contention raised by Mr Fielding to limiting the number of storey’s in the rear of a lot. As is the case, I cannot find such a limitation and therefore must consider this contention unsupported, particularly as the NLEP 2012 height standard is achieved.

50. In terms of the subjective element of assessment for character, I agree with Mr Piper that the character of the surrounding area is under a process of ‘urban renewal’ and that the current period of development is reflected by a variety of housing types including single and two storey dwellings that are attached, detached and multi-dwelling. Therefore, the proposed development of two storey multi-dwelling housing is in character with and respectful of the surrounding area.

51. The new developments at 5, 9 and 13 Regent Street, all of which were approved under the same statutory framework, are consistent with the bulk and scale of the proposed development. These developments are reflective of the changing character of the surrounding area under a process of urban renewal.

52. A number of objections were lodged against the original proposal and they can be summarised as follows:

• Type of development is a continuation of the unacceptable proliferation of two storey multi-dwelling housing development in the area

• Inadequate stormwater management

• Adverse amenity impacts

• Unsatisfactory parking arrangements in street

• Out of character with the area

58. In considering these objections, I refer to the statutory requirements, amended plans and SoF. In response it is noted that:

(5) The subject site is zoned R2 low density residential under the provisions of the NLEP 2012 and multi-dwelling housing is a permissible use within the zone.

(6) The building envelope is able to support the proposed development.

(7) The design of the multi-dwelling housing will not create adverse impacts to surrounding development (area).

(8) The proposed development achieves all NLEP 2012 standards and NDCP 2012 controls.

(9) The statutory controls were developed in consultation with the community and recognise a variety of housing types.

(10) Consent if issued with conditions will enable enforcement that property is maintained in a reasonable manner.

(11) This proposal will create no discernible change to the character of the area.

(12) Onsite parking and stormwater management as designed satisfies the requirements of the council and a condition of consent.

(13) The design of the development is compatible with the character of the area.

59. It therefore follows, that I find the objectives of the R2 low density residential zone are achieved by the proposed development, and in particular the development of multi-dwelling housing at the site is respectful of the amenity and character of the surrounding area.

Have the NDCP 2012 building design and appearance objectives been met?

The objectives

60. The objectives for Section 7.01.07 (Building design and appearance) of the NDCP 2012 (as provided in Exhibit 2) are:

Objectives

1. Ensure the design of new development responds to and contributes to its context.

2. Encourage the creation of attractive well designed development.

Evidence

61. The experts had considerable discussion and disagreement on what was the dimension of an ‘immediate area’ and its relationship to ‘surrounding area’ as referred to in the NLEP 2012 zone objectives.

62. Mr Fielding contends that although the proposed development achieves the numeric controls established within Section 7.01 (Building design criteria) of the NDCP 2012, it does not meet objective 1 of Section 7.01.07 to ‘Ensure the design of new development responds to and contributes to its context’, its context being the R2 zone.

63. Specifically, Mr Fielding refers to the control in Section 7.01.07, Building design and appearance for the R2 zone. He contends that units 3 and 4 do not satisfy the control provided below, due to incompatibility with character and massing within the ‘immediate area’.

6. Within the R2 Low Density Residential zone new development is compatible with the existing scale, character and massing of the development in the immediate area.

64. Mr Fielding’s objections with regards to character and bulk/massing in the surrounding area are provided previously, and need not be repeated again.

65. Further to that, the discussion by Mr Piper on the achievement of amenity and character by the proposed development in the surrounding area is provided previously.

66. It is noted that these discussions provided above relate to the ‘surrounding area’, however for reasons provided hereafter, repetition of the discussion on this issue, as it relates to ‘immediate area’ is not warranted.

Findings

67. It should be noted that the Court was not made aware by either party during the hearing of the repeal of Section 7.01 of the NDCP 2012. In response to an email request from the Court seeking to clarify the status of this Section with regards to contention (b) of the SoF, the Court was advised that as of 27 June 2017, Section 7.01 of the NDCP 2012 (Version 11), had been repealed and was replaced by Section 3.03 (Residential Development) of the NDCP 2012, with a commencement date of 10 July 2017.

68. However, pursuant to the savings provision in Section 3.03 of the NDCP 2012, Section 7.01 will be considered hereafter to address contention (b) of the SoF.

Savings provisions

Any development application lodged but not determined prior to this section coming into effect will be determined as though the provisions of this section did not apply.

69. It is unfortunate that the language used in the NLEP 2012 and NDCP 2012 is not consistent with respect to defining the area to which an assessment should be made.

70. The Macquarie Dictionary definition of ‘immediate’ is:

immediate

/ɪˈmidiət/ (say i'meedeeuht)

adjective 1. occurring or accomplished without delay; instant: an immediate reply.

2. relating to the present time or moment: our immediate plans.

3. having no time intervening; present or next adjacent: the immediate future.

4. having no object or space intervening; nearest or next: in the immediate vicinity.

5. without intervening medium or agent; direct: an immediate cause.

6. having a direct bearing: immediate consideration.

7. Metaphysics indemonstrable; intuitive.

71. With regard to contention (b) of the SoF (for the Queens Road lot), I refer specifically to item 4 in the definition above, ‘having no object or space intervening; nearest or next: in the immediate vicinity’. I take this to relate directly to Queens Road lot neighbouring properties of 23 and 27 Queens Road, as well as 9 Regent Street, 28 and 30 Fleet Street.

72. All properties within the immediate area of the site except 23 and 27 Queens Street are currently two storey detached (and proposed to be attached, not opposed by council) dwellings.

73. I find that the NLEP 2012 requirement to assess impact and compatibility within the ‘surrounding area’ for the R2 zone, encompasses and includes the ‘immediate area’ as required in Section 7.01.07 of the NDCP 2012.

74. I find that the objectives in Section 7.01.07 of the NDCP 2012 that relate to contention (b) are not contrary to the objectives of the NLEP 2012 for the R2 zone.

75. The role of and relative weight applied to a development control plan is tested by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 at 386-387, and is explained by Spigelman CJ , Meagher JA , Beazley JA as:

A development control plan is not an “environmental planning instrument”. (See definition in s4). Accordingly, the requirement in s80(2) that a consent authority “must refuse” an application that would “result in a contravention of” such an instrument does not apply to a development control plan.

76. I have previously determined that the proposed development satisfies the objectives of the NLEP 2012, particularly with respect to amenity and character, and that the proposed development is compatible with the surrounding area.

77. The proposed development attains all the numeric standards of the NLEP 2012 and controls of the NDCP 2012. I find there is no evidence that there is a likely amenity impact on either the surrounding or immediate area. For reasons given previously, Units 3 and 4 are not out of character for the either area.

78. It therefore follows, that I agree with the applicant that the proposed development complies with the objectives and controls of Section 7.01.07 of the NDCP 2012.

Consistency with LPS 2015 for a limited growth precinct?

The aims

79. The LPS 2015 for Newcastle aims ‘to deliver housing diversity, that is a range of dwelling types within a defined area. More diversity means greater housing choice for a range of households. This can also create more affordable housing options’.

Evidence

80. The LPS 2015, in its draft form was used to inform the NLEP 2012 and NDCP 2012, particularly with regards to FSR.

81. Mr Fielding agreed that the LPS 2015 is not a statutory tool with respect to development consents, however considers it an important ‘strategic’ document that helps inform the future character of the limited growth precinct that includes the site.

82. Mr Piper cites the following quote from the Gattan Institute, as provided in the LPS 2015, to underpin his understanding that the limited growth precinct should support a diversity of housing types in the area.

“Providing more housing will not necessarily ensure housing needs are met. The key is to ensure there is more diversity within housing”.

Findings

83. The disagreement between the experts relates to whether the proposed development within the limited growth precinct achieves the principles and aims of the LPS 2015.

84. I agree with the applicant that the LPS 2015 has little weight for a consent authority in consideration of a development application. It is not a statutory instrument, and whatever influence it has on achieving the objectives of the R2 zone has already been embedded within the standards and controls of the NLEP 2012 and NDCP 2012, such as through the FSR.

85. The proposed development achieves the standards and controls of the NLEP 2012 and NDCP 2012, and in particular FSR, the proposed development, I therefore find it is not in contradiction to the LPS 2015.

86. The proposed development is consistent with the aims of the LPS 2015 and criteria of a limited growth precinct, and in particular addresses Principle 14 of the LPS 2015. The proposed development is not in conflict with the other LPS Principles, which are less relevant to the proposed development. The proposed development provides the diversity of housing for a range of socio-economic situations, and that supports urban renewal within the surrounding area.

P14. A creative, culturally rich and vibrant community will be encouraged by providing a greater diversity of quality housing, business and recreational opportunities within each suburb for current and future community needs.

Conclusions

87. Having considered the evidence, submissions and undertaken a view, I am satisfied that the amended application now merits conditional consent. It appears to me that the amended plan substantially responds to the issues raised by objectors, which is confirmed by the general agreement of the engineers and the planners, except the respondents remaining contentions which I have responded to in favour of the applicant.

88. Based on the discussion between the planners, I consider that improving the vegetation species along the boundary landscaping with 23 Queens Road represents a reasonable outcome in terms of the compatibility with the side boundary treatments. I am satisfied that Condition 27A in the conditions of consent proposed by mutual agreement of the parties adequately addresses this issue.

89. In summary, I am satisfied this is a permissible development and the amended proposal demonstrates reasonable compliance with the relevant design standards to permit conditional consent. Whilst some objections were lodged about the change in character for this type of use, I do not consider these reasonable grounds for refusal.

90. I am also satisfied that this design respects the current amenity and is consistent with the character of the surrounding (and immediate) area.

91. I note the concerns of the community. If the local community wishes to restrict or limit this form of development, and inform urban renewal, it should be done through a strategic review of the current controls and such review should consider the relative balance between the different public and private interests for this type development.

Orders

92. The orders of the Court are:

1. Leave is granted to rely on amended plans granted by the Court on 19 December 2017, as Exhibit A.

2. The appeal is upheld.

3. Development Application (DA) No. 2015/0820 for demolition of existing structures, two strata subdivisions, and construction of multi-dwelling housing consisting of six (6) dwellings on Lot 13 Section W DP 21829, and two (2) dwellings on Lot 1 DP 20700, known as 25 Queens Road and 30 Fleet Street, New Lambton, respectively, is approved subject to conditions in Annexure A.

4. The exhibits, except Exhibits 1 and A, are returned.

_______________

S Bish

Commissioner of the Court

Annexure A (108 KB, pdf)

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Decision last updated: 06 March 2018