Frith v Blue Mountains City Council
[2014] NSWLEC 1134
•01 July 2014
Land and Environment Court
New South Wales
Case Title: Frith & Anor v Blue Mountains City Council Medium Neutral Citation: [2014] NSWLEC 1134 Hearing Date(s): 18 June 2014 Decision Date: 01 July 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed
Catchwords: Development Application: development standards, whether SEPP 1 objection is required, bulk, scale, character Legislation Cited: Blue Mountains Local Environmental Plan 2005; State Environmental Planning Policy No 1 - Development Standards; Land and Environment Court Act 1979; Environmental Planning and Assessment Act; Civil Procedure Act 2005 Cases Cited: Strathfield Municipal Council v Poynting [2001] NSWCA 270 Texts Cited: Blue Mountains Better Living Development Control Plan Category: Principal judgment Parties: Douglas William Frith
Roby Anne Frith (Applicants)
Blue Mountains City Council (Respondent)Representation - Solicitors: Mr D Frith (Litigant in Person)
Mr A Seton
Marsdens Law GroupFile Number(s): 10227 of 2014
JUDGMENT
Mr and Mrs Frith lodged Development Application X/827/2013 with Blue Mountains City Council seeking consent to construct a two storey dwelling house to create a detached dual occupancy. The removal of one tree within the site frontage is also proposed. The council refused consent and the Friths are appealing that decision.
The site and its context
The site of the application is Lot 117 in DP 1058423 and is known as No 21 Chapman Parade, Faulconbridge. It is a single regular shaped allotment having a total area of approximately 1288sqm with a splayed frontage to Chapman Parade of approximately 18m.
A single storey dwelling house erected on an approximate setback of 21m stands on the site. The land falls moderately from the north west corner to the south east corner, with an increase in slope towards the rear of the site which is heavily landscaped. The front setback has been cleared of the majority of vegetation and a retaining wall has recently been constructed inside the eastern property boundary from the front of the site to the dwelling house.
Development in the vicinity of the site comprises single and two storey dwelling houses erected on a variety of setbacks. The treatment of the front setbacks to the dwellings varies from formalised gardens to bush settings with significant vegetation. Springwood High School is located directly opposite the site.
Background and the proposal
The development application was lodged with the council on12 November 2013 and sought consent for the construction of a two storey dwelling within the current building alignment of the existing dwelling house. A common driveway to the west of the proposed new dwelling would be constructed and service the proposed and existing house.
It is proposed to site the dwelling on an 8m setback to Chapman Parade, measured parallel to the front boundary and 1m from the eastern property boundary. The area forward of the dwelling with an area of 63.7sqm would be developed as private open space for the new dwelling and would be fenced with a 1.5m high timber fence erected across the front of the site, along the eastern boundary and returning along to the western side of the proposed dwelling. The new dwelling would be separated from the existing dwelling by a distance of 6.65m.
The dwelling would incorporate a large double garage, craft room, bedroom and ensuite on the ground floor and an open plan living/dining/kitchen area, bedroom and bathroom on the first floor.
The plans provide for a landscaped strip along the western boundary in the location now occupied by the retaining wall and the planting of three deciduous trees between the fence and the front property boundary supplemented by a 600mm high Box hedge and Photinia species.
The driveway would utilise an existing crossover at the western side of the site and be of variable width. A turning area is proposed between the existing and proposed dwelling and it was agreed during the hearing that its location would be further to the north of that shown on the plans to facilitate turning movements.
The planning controls
The site is within the Living - General Zone under Blue Mountains Local Environmental Plan 2005 (LEP). Dual Occupancy development is permitted with consent in that zone.
Clause 9 is in the following terms:
Before granting consent to the carrying out of any development on land to which this plan applies, the consent authority is to be satisfied that the development:
(a) is consistent with the aim of this plan and the principles and practices of ecologically sustainable development, and
(b) complies with the principal objectives of the plan that are relevant to the development, and
(c) complies with the locality management provisions within Part 2 that apply to the land, and
(d) complies with the assessment requirements and provisions within Part 3 that are relevant to the development, and
(e) complies with the development provisions within Part 4 that are relevant to the development.The aim of the plan and the ecologically sustainable development provisions are found at clauses 10 and 11. The principal objectives of the plan are included in clause 12.
Clause 13 relates to general locality management and is in the following terms:
(1) Consent shall not be granted to the carrying out of any development on land to which this plan applies unless:
(a) the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and that are relevant to the development, and
(b) the development proposed to be carried out is permissible within the zone applying to the land in accordance with Division 3 (Permissibility of land use).
(2) Consent shall not be granted to development on land that adjoins land in another zone unless the development proposed to be carried out does not compromise achieving the objectives of the adjoining zone and the consent authority is satisfied that sufficient consideration has been given to the measures proposed to reduce any adverse impacts of the development on land within that adjoining zone.The locality management provisions within the living zones are at clause 15 as follows:
(1) Consent shall not be granted to development within the Living-General zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 1 of Schedule 2, and complies with those provisions.
(2) Consent shall not be granted to development within the Living-Conservation zone or to development within roads shown uncoloured on the Map and adjoining the Living-Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 2 of Schedule 2, and complies with those provisions.
(3) Consent shall not be granted to development within the Living-Bushland Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 3 of Schedule 2, and complies with those provisions.The objectives of the Living General Zone are at clause 22 as follows:
(a) To allow for residential development primarily in the form of detached single dwelling houses in a variety of types, designs and tenures.
(b) To promote residential development in locations that are accessible to services and facilities, thereby encouraging use of transport modes other than private motor vehicles.
(c) To ensure that residential and non-residential development maintains and improves the character of residential areas, in a manner that minimises impacts on the existing amenity and environmental quality of those areas.
(d) To allow a range of non-residential land uses that are consistent with the predominant scale and height of adjoining buildings and do not unreasonably detract from the amenity of adjoining or adjacent residents.
(e) To ensure that development responds to the environmental characteristics of the site.Clause 60 requires consideration of character and landscape and is in the following terms:
(1) Consent shall not be granted to development involving a building unless the consent authority has considered the extent to which the development is consistent with, or enhances, the established character and streetscape of the surrounding area with regard to:
(a) the scale and massing of any proposed building, and
(b) the use of building materials, including colours and finishes, and
(c) the building form, including roof pitch and proportions of windows, and
(d) the location of buildings on an allotment and the relationship of the building to the public street.
(2) For the purpose of providing for an open streetscape appearance for residential development, the following restrictions on solid fences and walls apply:
(a) a fence or wall located along any street frontage of a lot and any part of a side fence or wall that is located within the front building setback shall not exceed a height of 1 metre, except where a higher fence or wall is required, in the opinion of the consent authority:
(i) as a noise attenuation measure and other measures are not available, or
(ii) along one street frontage, in the case only of a lot with a frontage to more than one street, to adequately screen private open space,
(b) noise attenuation fences or walls are to be designed to minimise any adverse impact on the character and streetscape of the surrounding area as viewed from a road or the Regional Transport Corridor.
(3) Consent shall not be granted to development for the purpose of accessible housing, a boarding house, a dual occupancy, multi-dwelling housing or tourist accommodation unless the development is designed to:
(a) minimise the visible bulk of any development and to integrate the development with the existing character of the street, and
(b) incorporate measures to minimise any potential impacts on the amenity of adjoining residents, and
(c) ensure that the building form and design are articulated and varied, to provide a fine-grained residential built form and an individual dwelling identity and street address, and
(d) provide active street frontages and direct views from living areas, where possible, to the public street, and
(e) promote a landscape setting for residential development by establishing vegetation as an integral part of the development, and
(f) encourage pedestrian and vehicular permeability and, where possible, to provide for linkages with the existing street systems, and
(g) develop new streets and access lanes to reflect the local street layout of the surrounding area, if applicable (eg grid street layout).
(4) Consent shall not be granted to development within view of a public place, including a road, railway, or open space, unless the consent authority has considered the probable aesthetic appearance of the proposed development or use of the proposed development when viewed from that public place.Additional specific provisions that relate to landscaping for residential development are found at clause 65 as follows:
(1) Consent shall not be granted for residential development unless the consent authority has considered a concept landscape plan that demonstrates to the satisfaction of the consent authority that:
(a) the design of buildings complements the physical characteristics of the site and minimises the removal of mature vegetation and site disturbance, and
(b) the location of buildings maximises the retention of mature vegetation and maintains significant mature landscape features that contribute to the streetscape, and
(c) mature vegetation that shall be removed for the proposed development will be replaced with appropriate vegetation to provide screening from adjoining buildings and to maintain the contribution to the streetscape of the vegetation on the site, and
(d) the development incorporates proposed planting that, upon maturity, will provide screening of the development from public streets and adjoining dwellings, and
(e) the scale and massing of buildings ensure that built forms are secondary to the landscape setting in residential areas where these settings are the dominant character element in the surrounding area.
(2) A concept landscape plan prepared to comply with subclause (1) shall include the following information:
(a) the location and extent of existing vegetation to be retained including trees, hedges, large shrubs, shrub beds and any areas of natural vegetation,
(b) an indicative planting plan showing the location and size of each tree and large shrub to be planted and the areas to be planted with low shrubs and ground covers,
(c) the proposed extent and type (native or exotic) of planting that is to be provided to replace any vegetation that is proposed to be removed.The provisions within Part 2 of Schedule 2 are building height, front building setback, setback from other boundaries, site coverage and development density. The application complies with the numerical provisions for building height, setback from other boundaries, site coverage and development density. Those provisions relevant to the contentions are Front building setback and that part of the setback from other boundaries that relates to the location of buildings on an allotment. Those are in the following terms:
(1) Front building setback
The front wall of a new building or carport is to be set back from the primary front boundary a distance that is:
(a) within 20 per cent of the average setback of dwellings on adjoining allotments in established areas or, where there is no established pattern of residential setbacks, a minimum of 8 metres from the primary road frontage, and
(b) a minimum of 4 metres from the secondary road frontage, in the case of corner residential allotments, and
(c) a minimum of 9 metres from the rear boundary of the lot in front, in the case of hatchet shaped lots.
(2) Setback from other boundaries
(a) ....
(b) ......
(c) .......
(d) Notwithstanding paragraphs (b) and (c), the location of buildings on an allotment is to ensure that:
(i) the bulk and scale of development is consistent with the existing streetscape of the surrounding area and promotes a prominent landscape setting for dwellings, and
(ii) overshadowing of adjoining buildings and impact on solar access to the living areas and private open space of those buildings is minimised, and
(iii) the design and location of the buildings respond effectively to individual site constraints and minimise site disturbance and clearing of vegetation.The Blue Mountains Better Living Development Control Plan (DCP) also applies to the application and in particular, those sections that apply to stormwater detention (a disputed condition) and streetscape. Clause D3.5.8 requires a minimum separation distance between detached dual occupancy buildings for sites with a north-south orientation of 10m unless the site is of sufficient width in which a second dwelling is able to achieve full and uninterrupted northern aspect.
The council exhibited Draft Blue Mountains Local Environmental Plan 2013 from 4 December 2013 to 5 March 2014 and is currently reviewing submissions received. The development would remain permissible under the provisions of that draft plan.
The issues
The contentions in the case are whether the building setback control contained in Clause 2(1)(a) of Part 1 of Schedule 2 and the front fence controls in Clause 60(2)(a) of the LEP is a development standard and if it is the ability of the Court to approve the application in the absence of an objection to that standard pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP1); the adequacy of the building separation distance between the existing and proposed dwelling in relation to the DCP control of 10m; whether the bulk, scale, landscape setting, character and design are compatible with the likely future character of the area and the LEP provisions, whether an acceptable level of amenity is provided to occupants of the existing and adjoining dwellings in terms of overshadowing and there is adequate amenity in terms of private open space; whether the development is in the public interest and would establish an undesirable precedent.
The evidence
The hearing commenced on site as a conciliation conference under s34AA of the Land and Environment Court Act 1979 (LEC Act). Evidence was heard from four persons, three who supported the application and one who opposed it.
Those who spoke in support said that the recent clearing of the site had improved its appearance and the proposed dwelling would further enhance the streetscape. They did not object to the siting of the building and did not consider it would result in any adverse amenity impacts.
The objector stated the development would be out of character with the locality, the loss of vegetation has adversely affected the amenity of the area, there would be increased noise from the additional cars associated with the development and associated privacy impacts. He also raised the non-compliance with the front setback control and says a two storey dwelling in that location would be unusual and intrusive.
Expert planning evidence was heard from Ms K Barrett for the council. Mr Frith, a self represented litigant, did not put on any expert evidence.
Ms Barrett says that an objection under SEPP1 to the development standards contained in clause 2(1)(a) of Part 1 of Schedule 2 in the LEP is required because the site is within an established area and the existing residential setbacks of the dwellings at 19 Chapman Parade and 23 Chapman Parade constitute an established pattern of residential setbacks. Applying the formula in the clause and the average setback of the two adjoining properties is 16.46m and therefore, a setback of between 13.17m and 19.75m for the proposed dwelling is required. The proposed setback of approximately 8m is non-compliant. Ms Barrett did not consider that the pattern of setback had to be regular.
Similar views are held in regard to the provisions of clause 60(2)(a), with Ms Barrett saying that whilst the clause does allow for fences along the street frontage above 1 metre, the consent authority must form the opinion that the higher fence is required as a noise attenuation measure and other measures are not available. The development application was lodged without any reference to noise mitigation or supporting documentation or expert evidence that the fence was required or would achieve any noise attenuation to either the dwelling or private open space area. Ms Barrett noted the absence of similar fencing in the locality and says that the clause does reference the Regional Transport Corridor and in her opinion, the intent of the standard is to allow an increase in fence height for noise amelioration on heavily trafficked major roads and the Great Western Highway and not noise from adjacent properties, or in this case the school located opposite.
Ms Barrett was not satisfied as to the accuracy of the shadow diagrams lodged with the application or those tendered as Exhibit A however conceded that if they were correct, there would be no overshadowing impacts to private open space or living areas of adjoining properties and that the windows of the existing dwelling would maintain sunlight throughout the day on 21 June. Her concerns in relation to building separation being less than required by the DCP remain as she says that the purpose of the control is to ensure there is space for hardstand and manoeuvring areas in combination with landscaping to ensure an appropriate setting is created around each dwelling such that the buildings do not read as a single, solid façade when viewed from the street. She says the proposed development does not achieve this aim.
In relation to the bulk and scale of the proposal, Ms Barrett says that it is not in keeping with the surrounding development and will result in an overdevelopment of the front portion of the site. The inappropriate bulk and scale results from the combination of locating the building with minimal setback, limited articulation in the architectural design, an overall building depth of 12.6m and the siting of the private open space within the front setback.
With regard to clause 65, Ms Barrett says that the scale and massing of buildings must be secondary to the landscape setting where that setting is dominant, as she says it is. She does not consider that the proposed landscape planting will screen the development due in combination to the scale and massing of the building, the limited space provided within the front setback for the establishment of a landscape setting and the type of landscaping proposed with the large character trees proposed being deciduous species. She disagreed with Mr Frith's submission that the neighbours are better placed to determine the appropriate built form and says that the LEP and DCP represent the broader community's views and noted that one neighbour objected to the proposal so only half of the immediate neighbours supported it.
Ms Barrett says that the importance of character and design is identified in both the objectives of the zone and the provisions of clause 60(1) which state that the scale and massing of any proposed building, the location of that building on the allotment and the relationship of the building to the street must be considered before consent can be granted. She says the proposed two storey dwelling is inconsistent with the established character and streetscape and where two storey dwellings exist in the immediate locality, they observe a substantial front setback. These larger setbacks allow for appropriate landscaping and sufficient vegetation depth to screen the dwelling resulting in limited visibility of the buildings from Chapman Parade as evidence from the adjoining property, No 23.
Submissions
Applicant's submissions
Mr Frith submits that the development is compliant with the LEP and the DCP and that no objection to the development standards is required for the setback or fence height.
In relation to the provisions of Clause 2(1)(a) of Part 1 of Schedule 2 of the LEP, there is no established pattern of development in Chapman Parade. He provided Dictionary definitions for the word pattern which include:
The regular and repeated way in which something happens or is done;
A repeated form or design especially that is used to decorate something;
A regular and intelligible form or sequence discernible in the way in which something happens or is done;
Arranged in or constituting a constant or definite pattern, especially with the same space between individual instances.There is no established pattern to the setbacks in Chapman Parade because the setbacks vary considerably. There was an established pattern of setbacks in Grose Road where the setbacks are similar along the length of the road. Because there is no established pattern, the development is compliant with the default 8m standard contained in the clause.
A fence height of 1.5m is required to address noise from vehicles accessing a driveway almost opposite the site that services the school and the traffic noise in Chapman Parade. Mr Frith was unable to provide the Court with traffic counts or any acoustic assessment of the noise of either source nor indicate whether the proposed fence would assist in mitigating the noise source. He advised the Court that if the application could be approved in the absence of this issue, he would be prepared to reduce the height of the fence to 1m and accept a condition that heavy planting be provided to screen the private open space area thereby taking over the role of the fence. The double glazing required under the BASIX Certificate would address noise to the dwelling.
Mr Frith considers that many of the properties along Chapman Parade are neglected and contain weed species, citing the Weeds list contained in the DCP and submits if those species were removed from the properties, there would be no bushland left. Approval of his development would be one step closer to improving the streetscape. In relation to the contentions of bulk, scale, siting and character, the development as proposed is a good, articulated design that is supported by three residents who consider the design, style and landscaping appropriate, the development will not be visible when travelling along Chapman Parade until you are approximately 10m from the site.
Council's submissions
Mr Seton submits that the building setback control contained in Clause 2(1)(a) of Part 1 of Schedule 2 and the front fence controls in Clause 60(2)(a) are development standards and because those standards are not met, in the absence of an objection to those development standards, consent cannot be granted.
There are two storey dwellings further along Chapman Parade, however, these were built prior to the LEP and DCP controls taking effect and are not examples of how the provisions of those plans would be met.
The LEP controls for character and landscaping contained in clause 60 of the LEP are not met by the application, in particular subclause (1)(d), (3)(a) and (3)(e).
The applicant has not provided any reason not to provide the 10m separation between buildings required under the DCP and there are other ways of providing the desired accommodation on the site.
The community expectations are embodied in the council's planning controls and these determine whether a development is appropriate and consistent with those expectations.
Conclusion and findings
My first task is to determine whether the provisions of Clause 2(1)(a) of Part 1 of Schedule 2 and the front fence controls in Clause 60(2)(a) of the LEP are development standards. If they are then consent cannot be granted as the application is not accompanied by a written objection to those development standards.
Development standards is defined in Section 4(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) as follows:
development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,
(b) the proportion or percentage of the area of a site which a building or work may occupy,
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,
(d) the cubic content or floor space of a building,
(e) the intensity or density of the use of any land, building or work,
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,
(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,
(h) the volume, nature and type of traffic generated by the development,
(i) road patterns,
(j) drainage,
(k) the carrying out of earthworks,
(l) the effects of development on patterns of wind, sunlight, daylight or shadows,
(m) the provision of services, facilities and amenities demanded by development,
(n) the emission of pollution and means for its prevention or control or mitigation, and
(o) such other matters as may be prescribed.Clause 26(1)(b) of the EPA Act provides that an environmental planning instrument may make provision for controlling (whether by the imposing of development standards or otherwise) development. Guidance in this issue is provided by Giles JA in Strathfield Municipal Council v Poynting [2001] NSWCA 270 where, at [96] - [99] he states:
96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.
97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.
98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard.
99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances.This two-step approach asks two questions, the first, Is the development proposed in respect of the site prohibited in any circumstances by the provisions of either clause construed in the context of the LEP as a whole? The second, if it is not so prohibited do the provisions relevantly specify a requirement in respect of any aspect of the proposed development.
In relation to the first question, dual occupancy development is not prohibited in any circumstances by the provisions of either clause. In relation to the second question, I find that these provisions are separately defined controls to be imposed on permitted development, that is, a dual occupancy development must be erected on a setback determined under the clause and a fence can only be erected along the street frontage of a lot if its height does not exceed one metre. Accordingly, both provisions are development standards.
In this case, that is not the end of the questioning in regard to the setback control or the fencing control as I must determine whether the default setback of 8m applies to the site and whether the fence is required for noise attenuation because other measures are not available.
The building setback subclause is in two parts, the first applies in circumstances where the setback is calculated having regard to the average setback of dwellings on adjoining lots in established areas. The second applies to circumstances where there is no established pattern of residential setback.
The site is within an established area. Dwellings are constructed on adjoining allotments and along the entire length of Chapman Parade on its southern side. Those setbacks vary considerably as detailed in the evidence. The fact that the setbacks are not regular or the same does not mean that there is no established pattern. The pattern is irregular. It is however interesting to note that the irregular pattern does in fact form a curved patter as evidence in the aerial photo included on page 9 of Exhibit C. Application of the clause must have some planning purpose and that purpose is to provide for that irregular situation and flexibility in terms of its application and has the effect of continuing that irregular setback outcome.
In my opinion, the second part of the clause would apply to circumstances such as a new subdivision where no buildings had been erected so no pattern of setbacks had been established. The 8m default setback would apply in those circumstances.
There is no evidence before the Court that the proposed fence is required for noise attenuation and that no other measures have been considered to address noise impacts if in fact the noise levels exceed acceptable criteria. Accordingly, I find that the provisions of Clause 60(2)(a) are not met.
Compliance with the development standards of Clause 2(1)(a) of Part 1 of Schedule 2 and Clause 60(2)(a) of the LEP is a precondition to consent. As the application does not comply with those development standards it must fail and consent cannot be granted.
If I am wrong in the conclusion that I have reached on the jurisdictional test arising from my findings that the provisions are development standards, I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.
The provisions of S79C of the EPA Act prescribe those matters that must be taken into consideration in determining the application. The LEP is one of those matters and, pursuant to clause 9, requires that I am satisfied that the development is consistent with the aim of the LEP, the principles and practices of ecologically sustainable development (ESD) and complies with the principal objectives of the plan as relevant, the locality management provisions within Part 2 that apply to the land and the assessment requirements and provisions in Part 3 relevant to the development, and the relevant development provisions within Part 4. Further, as prescribed in clause 15, consent shall not be granted unless the development has been assessed in accordance with the provisions that apply to the land specified within Part 1 of Schedule 2 and complies with those provisions.
I am satisfied that the development would be consistent with the aim of the LEP and the principles and practices of ESD and would comply with its principle objectives.
I am not satisfied that the development is consistent with objective (c) of the Living General Zone. That is because, having regard to the evidence and the submissions of the applicant, I am not satisfied that the proposal will improve the character of the area in a manner that minimises impacts on the existing amenity and environmental qualities of the area. Mr Frith placed great emphasis on the presence of plant species in the locality that the council has, in its DCP, identified as weed species. They include species such as Chinese Tallow, Cootamundra Wattle, Jacaranda, NZ Pittosporum, Golden Wreath Wattle and Cotoneaster. Whilst I accept that the planting of these trees should not be encouraged because of the threat that they impose to the natural environment in the Blue Mountains, where these are planted in the vicinity of the development, they contribute to its landscaped character. That character, in some instances, takes the form of a more natural bushland setting and on other properties, a much more formal setting. Both contribute to the amenity of the area.
Having regard to the provisions of clause 60 of the LEP, I am not satisfied that the development is consistent with the established character and streetscape with regard to the location of the building on the allotment and the siting of the proposed fence and private open space forward of the dwelling. Nor does it minimise the visible bulk, integrate the development with the existing character of the street or, based on the landscape plans proposed, promote a landscape setting for residential development by establishing vegetation as an integral part of the development. That landscape plan does not achieve the objectives of clause 65 of the LEP.
For these reasons, the application does not merit consent.
The Orders of the Court are:
(1)The appeal is dismissed.
(2)Development Application X/827/2013 for the construction a two storey dwelling house to create a detached dual occupancy at No 21 Chapman Parade, Faulconbridge is refused consent.
(3)The exhibits, other than exhibits, B, C and 2, can be returned.
_______________________
Sue Morris
Commissioner of the Court**********
Frith v Blue Mountains City Council [2014] NSWLEC 1134
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