Fusion Sydney Pty Ltd v City of Parramatta Council

[2016] NSWLEC 1367

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Fusion Sydney Pty Ltd v City of Parramatta Council [2016] NSWLEC 1367
Hearing dates:	22 August 2016
Date of orders:	23 September 2016
Decision date:	30 August 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	Directions for amended plans & conditions at [85].
Catchwords:	DEVELOPMENT APPLICATION: Certainty of solar access from skylights; impact of vehicular turning area on streetscape; landscaping in front setback.; Public submissions and objections.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919
Category:	Principal judgment
Parties:	Fusion Sydney Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Mr. D Loether, Bartier Perry (Applicant) Mr. A Gough, Storey & Gough (Respondent)
File Number(s):	2016/00161874

Judgment

1. COMMISSIONER: This is an appeal, pursuant to the provisions of s 97(b) of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by City of Parramatta Council (the Council) of Development Application number DA818/2014. This application sought approval for: demolition, tree removal, consolidation and subdivision into three lots; and the construction of two attached and one detached torrens titled dual occupancies (the original proposal) at 18-20 Mobbs Lane, Carlingford (the site).

2. The appeal was subject to mandatory conciliation on 15 February 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). Following the initial conciliation the conference was adjourned to allow the applicant to further address the matters raised by the Council and the residents who provided evidence at the site inspection.

3. Following the submission of amended plans, and their readvertising, the matter was considered by the Council and authority was not provided to enter into agreement.

4. Given an agreement was not reached during the conciliation phase, the conciliation conference was terminated on 11 May 2016, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 11 August 2016 for the applicant to rely on the amended proposal. [Architectural Plans by TERRAERIS dated 1 August 2016, Exhibit 1].

5. The proceedings focussed on:

• Proposed dwellings 20C and 20B: the appropriateness of solar access; parking and manoeuvrability; the appropriateness of the front setback in terms of streetscape.

• The development as a whole: issues raised by the objectors; and the broader public Interest.

6. Following consideration of the expert evidence, the concerns expressed by residents, and the relevant planning controls, directions are provided to prepare amended plans and conditions to satisfy the above issues.

The Locality

7. The site is Lot 4 and 8 in DP 39354 and consists of two rectangular shaped allotments located on the southern side of Midson Road, Ermington at the intersection of Raimonde Road Carlingford. The site has a total area of 1823m² and slopes to the rear of the site. The side has two road frontages Mobbs Lane and Raimonde Road, as shown below.

The proposal

8. The amended proposal (the proposal) before the court is for:

• Demolition of all structures on site and tree removal;

• Consolidation of the lots 7 and 8 in DP39354, and re-subdivision into three allotments;

• Construction of two attached, and one detached dwelling; and

• Torrens title subdivision of the completed dual occupancy developments.

9. The plans before the court have made the following changes [exhibit 1]:

Reconfiguration of driveways

Introduction of turning areas for dwelling 20B and 20C

Changes to the roof design 

10. The proposed dwellings are located as indicated in the following extract of the site plan, with the exiting lot layout shown in red dashed line:

Issues

11. Councils initial contentions in the matter can be summarised as:

• Inconsistency of the development with the areas existing character;

• Inadequate setbacks to the development, resulting in an unacceptable impact to the privacy and amenity of the occupants of the proposed development;

• Unacceptable visual privacy impacts to the private open space within the proposed development;

• Inadequate private open space for proposed dwellings 18C, 20A, 20B and 20C;

• Inadequate solar access to the living rooms of proposed dwellings 20B and 20C;

• Impact of the development on the safety of the area;

• The unsympathetic nature of the proposed roof design;

• Non-compliant parking and manoeuvrability for proposed dwelling 20B and 20C;

• Non- compliant driveway widths for proposed dwelling 18C, 20A, 20B and 20C; and

• As a result of the above and concerns expressed by objectors, the contention that the development is not in the public interest.

12. Following the Court providing leave to rely to the applicant on amended plans, and the joint conferencing of experts, the council were given leave to amend their contentions. The further amended contentions (exhibit 2) reduced the scope of concerns with the proposed development to the following outstanding issues:

• Inadequate solar access to the living rooms of proposed dwelling 20B and 20C, which would result in poor amenity for the occupants;

• Unacceptable parking for proposed dwelling 20B and 20C;

• Unacceptable and unsafe manoeuvring of vehicles from dwellings 18A, 18B, 20B and 20C, as the vehicles are unable to exit in a forward direction;

• The inclusion of the turning bay in the front setback of proposed dwelling 20B and 20C is suboptimum from a streetscape perspective and would be to the detriment of the overall appearance of the development.

• As a result of the above and concerns expressed by objectors, the the contention that the development is not in the public interest.

Public submissions

13. The Court heard from a number of objectors on site at the commencement of the hearing. Their objections were tendered (Exhibit 5) and their central concerns with the proposal can be summarised as:

• The bulk and scale of the proposal and how it responds to the site constraints (specifically lot size and slope);

• Capacity of the site to accommodate the number of residential dwelling proposed, and the adequacy of the open space retained on the site;

• The proposals impact on the amenity of the adjoining residents (overshadowing, overlooking and increased use of on street parking);

• The reduction in off street vehicular accommodation per dwelling from what is currently provided;

• The appropriateness of the architectural design of the proposed dwellings, compatibility with the character of the area and their street appearance;

• Potential for increased run off from the proposal;

• The safety of reversing from new residential garages into Raimonde Rd; and

• The impact of the increased traffic movements at the intersection of Mobbs Lane and Raimonde Rd.

Planning framework

14. The site is zoned R2 Low Density Residential and the proposal is permissible with consent, pursuant to Parramatta Local Environmental Plan 2011 (LEP 2011). The objectives of the R2 zone are as follows:

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 ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment.

To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.

15. The first of the zone objectives is the most relevant to these proceedings.

16. Cl. 2.6 subdivision: sub cl 1 subdivision can only occur with consent; sub cl 2 consent must not be granted, unless the minimum lot sizes, as shown on the Minimum Lot Size map are achieved. The proposal complies with these controls (exhibit E).

17. Cl. 2.7 provides that demolition can only be carried out with development consent. Consent for demolition is sought by the applicant.

18. Minimum lot size, for the resulting lots, is defined by Clause 4.1 (3) and (4B) as 600sqm. This is achieved by the proposal as demonstrated by the proposed subdivision plan (exhibit E).

19. The height of building development standard for the site is mapped as 9m (cl. 4.3 of LEP 2011). The proposal complies with this control.

20. The floor space ratio (FSR) development standard for the site is 0.5:1 (cl. 4.4 of LEP 2011). The proposal complies with this control (exhibit 3).

21. Pursuant to cl. 6.1, dual occupancy development is permitted on the site as it: meets the minimum area requirements; does not seek detached dual occupancies (sub-cl 2); and is not within a mapped exclusion area (sub-cl 3).

22. The Parramatta Development Control Plan 2011 (DCP 2011) applies to the proposal. DCP 2011 has the following aims:

To ensure that development contributes to the quality of the natural and built environments;

Encourage development that contributes to the quality of the public domain;

Ensure that development is economically, environmentally and socially sustainable;

Ensure future development has consideration for the needs of all members of the community;

Ensure development positively responds to the qualities of the site and its context; and

Ensures development positively responds to the character of the area.

23. Council’s contentions primarily relate to how the proposal meets the Development Principles in DCP 2011. The structure of the DCP is that each clause has an objective, development principles and development controls. The objectives and principles provide flexibility to the implementation of the development controls as sought by s79C(3A) (b) of EPA Act.

24. DCP 2011 recognises that many parts of the local government area of Parramatta are in transition and states it is important to recognise that places and communities evolve over time. Anticipation of spatial change needs to be balanced with existing themes, forms and patterns which have helped establish the character of the locality (cl 2.1 DCP 2011).

25. LEP 2011 and DCP 2011 define a preliminary building envelope (cl 3.1.3 DCP 2011). The DCP establishes that this envelope is further modified by the application of the site controls such: as setback; deep soil zones; landscaped areas; and building controls. The controls seek to modify the preliminary building envelope, for example, to modulate facades and provide appropriate roof designs. In these proceedings the provisions in dispute relate to clauses:

3.1.3 Deep soil zone

3.2.5 Streetscape

3.3.5 Solar access

3.6.2 Parking and vehicle access

26. DCP 2011 requires, for dual occupancy development, a minimum deep soil zone area of 30% of the site (with 15% of that provided at the front), and with a dimension not less than 4m by 4m. The experts agreed that the numerical standards were not achieved by the proposed dwellings 20B and 20C.

27. Streetscape is defined by cl 3.2.5 DCP 2011 as representing the interrelationship between buildings, landscape and open spaces in the street scene. The clause has the following objectives:

01 To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban development;

02 To increase the legibility of streetscapes and urban spaces so that the interrelationship between development, landscape and open space is visually coherent and harmonious.

03 To maximise opportunities for buildings to define the public domain.

04 To encourage active street frontages and improve pedestrian amenity.

28. These objectives are supported by 13 development principles. The experts did not reach agreement on the compliance of the proposed development with cl 3.2.5 of DCP 2011.

29. Clause 3.3.1 details the following objectives for landscaping, relevant to the proposal:

…

05 To enhance the existing streetscape and promote a scale and density of planting that softens the visual impact of buildings;

…

08 To provide for the infiltration of water to the water table, minimise run off and assist with stormwater management

09 To ensure developments make an equitable contribution to the landscape setting of the locality.

30. These objectives are supported by 13 development principles. The experts did not reach agreement on the compliance of the proposed development with cl 3.3.1 of DCP 2011.

31. Controls for solar access and cross ventilation are contained in DCP 2011 in cl 3.3.5 with the following relevant objectives:

01 To provide thermal comfort for occupants

02 To ensure that development does unreasonably diminish sunlight to neighbouring properties and within the development site

03 To ensure that sunlight access is provided to private open space and habitable rooms to improve amenity and energy efficiency

…

32. These objectives are supported by 12 development principles. The experts agreed the proposed development achieves the requirements of cl 3.3.5 of DCP 2011, subject to appropriate conditions to ensure certainty. This is discussed further below.

33. The relevant controls for parking and vehicular access are contained in cl.3.6.2, which has the following objectives:

01 To ensure that the location and design of driveways, parking areas and other areas used for the movement of motor vehicles are efficient, safe, convenient and are integrated into the design of the development to minimise their visual impact

02 To ensure that adequate off street parking is provided to serve the needs of development.

34. As the proposed dwellings are larger than 125sqm, two parking spaces are required. The proposal complies with this control.

35. These objectives are supported by 20 development principles. The experts did not reach agreement on the compliance of the proposed development with cl.3.6.2 of DCP 2011.

36. Notification provisions for development applications are contained in the appendix to DCP 2011. The amended proposal has been notified by Council in accordance with these provisions. Submission received have been provided to the Court and have been considered in the assessment of the application as required by s79C(1)(d) of EPA Act.

Expert evidence

37. The joint conferencing process sought to address the remaining issues in contention as detailed in [9].

38. Mr Adam Coburn (for the applicant) and Mr Jeff Mead (for the respondent) provided a joint report on planning issues (exhibit 3), as part of the same report Ms Rosemarie Baretto (for the respondent) provided, with Mr Adam Coburn expert comment on traffic and transport issues. I am satisfied that Mr Coburn’s evidence in relation to traffic and transport issues was limited to their planning impacts. Relevant oral evidence of technical aspects of traffic and transport issues was provided by Ms Baretto.

39. At the conclusion of the joint conferencing process a joint report was prepared. However the joint reports conclusions need to be read in the context that the joint conference was undertaken on a version of the plans that was immediately prior to those before the court.

• The planning experts concluded that concerns in relation to the adequacy of solar access were resolved by the amended plans. Specifically for proposed dwelling 20B and 20C, this was achieved by the inclusion of skylights, shown on architectural plan DA03F. The experts noted that any consent proposed for the development would require a condition regarding the maintenance of these skylights in perpetuity. This issue is discussed further in the following section under solar access.

• The driveway reconfiguration, which has resulted in the gradient being amended to 1:20, resulted in the traffic and transport experts concluding that the proposed driveway and parking arrangements were compliant with the relevant Australian Standards.

• The traffic and transport experts also agreed that the reconfiguration of the driveway resulted in a width no less than 3m, and is now compliant with the relevant Australian Standards.

• The proposed dwellings at 18A, 18B are accessed by a single driveway from Raimonde Rd. During the joint conferencing process the traffic and transport experts agreed that Raimonde Rd is a low traffic volume street, and that based on adequate sight lines, residential traffic reversing from these properties into the street would be acceptable.

• In relation to 20B and 20C, the amended plans incorporate a turning bay to allow exit of vehicles in a forward direction onto Mobbs Lane. The traffic and transport experts concluded that this is acceptable, subject to an appropriate condition that provides for a reciprocal right of way (ROW). The driveway and parking arrangement for 20B and 20C was reviewed during the proceedings and is discussed further in the addendum report from the experts.

• The planning experts considered the contention that the lack of eaves on the proposed pitched roof is unsympathetic and not compatible with the streetscape objectives 01 and 02 and the design principle 03 in the DCP 2011. They concluded that ‘the proposed development is considered a contemporary design which responds to the planning controls, whilst not being incompatible with the streetscape’ and that this issue was not sufficient to warrant refusal of the development. During the course of the proceedings an appropriate condition was agreed which will require the development, if approved, to be constructed with eaves;

• In the vicinity of the application there is no distinct neighbourhood character and the proposed design, whilst contemporary, is not incompatible with the streetscape and is satisfactory. This matter is discussed further in the addendum report from the experts;

40. During the proceedings the experts prepared an addendum to their joint report. This addendum focussed on the issue raised in the further amended statement of facts and contentions, namely vehicle manoeuvrability and front setback treatment proposed to 20B and 20C.

41. I have reviewed the comments made by experts, and where they have reached agreement, I am satisfied that they appropriately consider the issues raised by the contentions and the appropriate planning controls and I accept their conclusions.

Appropriateness of solar access

42. The planning experts agreed that solar access to the living areas of 20B and 20C was made acceptable, and meets the requirements of DCP 2011, by: the deletion of Bed 3; the subsequent creation of a void space; and the inclusion of roof top skylights. These changes were incorporated in the amended plans before the court.

43. The certainty of the ongoing protection of this access to sunlight to the living room was raised in the experts report, and was the subject of their joint evidence. The planning experts agreed that a condition should be imposed to preclude future modifications to 20B and 20C that seek to remove the void space, and therefore the living rooms access to the roof top skylights.

44. I agree with the experts concerns in this regard to the need for certainty of an acceptable outcome in relation to solar access. It is necessary for this development to provide certainty that it will achieve compliance with cl. 3.3.5, in particular principal two that requires dwellings in the development site to receive a minimum of three hours of sunlight between 9am and 3pm on June 22.

45. Three hours of mid-winter sunlight is not achieved without the inclusion of skylights above the living area, and without these skylights the development would be inconsistent with objective 1 and 3 of cl 3.3.5 in DCP 2011.

46. For the reasons in the preceding paragraph I find that the retention of the skylight is material to the amenity of the future occupants and that it is appropriate to include a condition requiring their retention. In addition to this it is my view that an appropriate restriction to user should be included on the title of the proposed lots, pursuant to s88B of the Conveyancing Act. This will ensure that this requirement is clear to future purchasers, and will assist in achieving the planning purpose of cl.3.3.5 of DCP 2011. Such a restriction on title could be varied by a consent authority at a later date if appropriate in the circumstances of the case.

Parking and manoeuvrability

47. I accept the evidence of Ms Baretto that the based on adequate sight lines and low traffic volumes on Raimonde Rd, residential traffic reversing from 18 A and 18B into the street would be acceptable [exhibit 3].

48. During the proceedings Ms Baretto gave evidence as to the trend of increasing vehicle numbers (especially during peak hours) on Mobbs Lane, as well as the particular aspects of driveway slope (the road being higher than the garage) and resulting sight lines that would make a reversing movement out of the driveways 20B and 20C unsafe, in her view. I accept this evidence.

49. The plans before the court incorporate a turning bay in the front setback of 20B and 20C to facilitate the sweep paths of turning vehicles and to allow them to exit in a forward direction. It was demonstrated in the addendum to the experts report (exhibit 7) that these movements will impact on a number of the garden edges and beds currently indicated on the site plan for the proposal.

50. A ROW is proposed across proposed driveways to allow for this manoeuvrability. A conditioned is proposed by the experts to ensure this is registered on the title prior to Occupation certificate.

51. Based on the evidence before the Court, I am satisfied that, subject to correction of the landscaping design to accommodate the defined vehicle sweep paths, and the registration of the ROW, the parking and manoeuvrability is acceptable.

52. The proposal meets the requirements of the planning instruments, with the exception of the requirement for parking areas to be integrated into the design of the development to minimise their impact (objective 01). The achievement of this objective is discussed in the following.

Appropriateness of the treatment of the front setback

53. The treatment of the front setback in any development is important to ensure that it makes a positive contribution to the streetscape to which it belongs, in this case Mobbs Lane and Raimonde Rd.

54. In DCP 2011 streetscape is defined by cl 3.2.5 as representing the interrelationship between buildings, landscape and open spaces in the street scene. In contention in these proceedings is the appropriateness of the treatment of the front setback of the proposed dwelling 20B and 20C.

55. An extract from the Site Plan, exhibit 1, shows the proposed treatment of the front setback area of proposed dwelling 20B and 20C.

56. The addendum to the experts joint report (exhibit 7) details the following calculations relevant to the treatment of landscaping within the front setback:

Landscaped area:

Total site: 42.68%

No 20B: 33.33%

No 20C: 34.47%

Deep Soil (overall):

Total site: 37.16%

No 20B: 28.70%

No 20C: 31.27%

Deep soil in front setback:

No 20B and 20C none provided at 4 x 4 m

Actual deep soil (overall % of site area)

No 20B: 11.25sqm (12.5%)

No 20C: 9sqm (10%)

57. The experts agreed that the numerical standards of DCP 2011 were not achieved by proposed residential dwellings 20B and 20C. The experts did not agree whether the development met the objectives and design principles, and therefore whether flexibility could be provided in the implementation of the development controls as sought by s79C(3A) (b) of EPA Act.

58. Mr Mead was of the opinion that the treatment of the front setback was inconsistent with that encouraged by the applicable planning controls and the character of the streetscape within which the site sits. His evidence states that the streetscape in vicinity of the site is characterised by vegetated front setbacks and that the controls in DCP 2011 seek to continue this. He argued that the landscaped areas shown in the amended plans will allow for limited planting and are not located so as to soften the visual impacts of the driveway and area of the front setback. He concluded that the amended plans result in non-compliance of both lots 20B and 20C in terms of landscaped area (40% required) and therefore the built form outcome for these lots is unacceptable [exhibit 7].

59. Mr Coburn evidence is that there is sufficient landscaping area in the front setback of 20B and 20C for screen planting and small trees which meet the intent of deep soil. He argued that the turning bay and landscaping is satisfactory in the broader landscape having regard to other dual occupancies (such as 6A and 6B [Mobbs Lane]), shopping centre (with no landscaping) and that 20B and 20C is lower than the street and will not dominate the landscape. Mr Coburn concluded that whilst sub-optimal, the turning bay is not offensive to the streetscape and there is landscaping to provide relief from hardstand areas.

60. In the proceedings Mr Coburn was asked to clarify his comments in regard to the front setback having sufficient area for small trees. Reference was made to the NSW Apartment Design Guide, which whilst not intended for dual occupancy development, was tendered by the respondent as a guide to the volume of soil required for small trees (exhibit 8). Mr Coburn accepted that within the front setback none of the areas proposed would enable the establishment of small trees, as defined by this document. He also accepted that the landscaping in the front setback would need to be altered to accommodate the vehicle sweep paths.

61. During the proceedings Mr Coburn and Mr Mead had differing approaches to defining the streetscape of the site. As noted at [27] streetscape is defined in DCP 2011, which is the definition I have adopted in assessing this proposal.

62. As a result of the evidence given by the experts, and my observations of the interrelationship between buildings, landscape and open spaces in the street scene surrounding the site, I find that the provision of landscaping within the front boundary, including small trees, is characteristic of the area.

63. The aims of DCP 2011 requires development to make a positive contribution to the qualities of the site and its context; the character of the area and the quality of the public domain.

64. The DCP controls in relation to parking (cl 3.6.2) requires that the location and design of driveways, parking areas integrated into the design of the development to minimise their visual impact

65. Clause 3.3.1 requires proposed landscaping to enhance the existing streetscape and promote a scale and density of planting that softens the visual impact of buildings and to make an equitable contribution to the landscape setting of the locality.

66. I find that the proposal, in its current form, fails to meet these applicable planning controls. On the basis of the planning controls and the evidence of the planning experts I am not satisfied that the treatment of the front setback area to 20B and 20C is appropriate.

67. I find that in order meet the objectives of the controls, and to allow for greater screen planting and deep soil zones with the proposed development, the applicant is required to amend the proposal to:

• Increase the front setback of the proposed dwelling 20B and 20C, by 2 metres, to achieve a minimum of 9 metres from the street boundary at the front entry wall of 20C.

• The separate pedestrian entries to proposed dwelling 20B and 20C are to be incorporated adjacent, or within, the proposed driveway to reduce the area of hardstand at the street frontage. This will also provide a contiguous central zone of landscaping with the streetscape.

• The resulting deep soil area created is to be landscaped, along with the remaining area of the front setback not required for vehicular movement, to achieve a scale and density of planting that softens the visual impact of buildings.

68. This increase in capacity for landscaping, and in particular, deep soil zones will meet the relevant control for a 4 x 4 area, and will sufficient soil volume to sustain small trees. With these amendments, and a flexible approach to the application for the development standards, the development will meet the planning controls and make a positive contribution to quality of the public domain, as required by DCP 2011.

Public Interest

69. During the course of the proceedings I sought evidence from the planning experts on how a number of the issues raised by residents, but no longer pressed by Council, had been addressed. The following paragraphs discuss those broad issues, not already covered in the preceding, that were raised by members of the public who addressed the court.

70. In the submissions received by the Court the issue of the bulk and scale of the proposal, and its impact on the amenity of the adjoining residents, was consistently raised by objectors. Residents also expressed concerned with the appropriateness of the architectural design of the proposed dwellings;

71. Bulk, scale and intensity of development is controlled primarily through the controls of LEP 2011 and the zoning of land. The LEP seeks to provide for the housing needs of the community within a low density residential environment. The planning instruments of Parramatta local government area acknowledges that the area is in transition and states it is important to recognise that places and communities evolve over time. Development potential on any site must be assessment of impacts of such a development, as required by s79C of EPA Act.

72. The proposed development complies with, and is well below, the permissible maximum height for the site. It complies with the remaining development standards within LEP 2011. As part of the amendments, changes to the roof design have reduced the overall bulk of the development. The requirement in the directions below to incorporate eave overhangs will also improve the compatibility of the development with the existing urban character of the surrounds.

73. The residents also raised concerns with regard to the suitability of the site for the development proposed. Having regard to the evidence before me, my observations at the onsite hearing, and the proceeding discussion I find that the site is suitable for the development proposed (s79C(1)(c) of EPA Act).

74. Whilst I find that the site has the capacity to accommodate the number of residential dwelling proposed, in the preceding I concluded that the adequacy of the open space retained in the front setback to the site is insufficient to make a positive contribution to the streetscape of Mobbs Lane. This was an issue that was raised by residents who felt that the development as proposed was not compatible with the appearance of existing neighbouring homes, many that have deep landscaped setbacks to the street.

75. Concern was also raised in relation to the impact of the development proposed on overshadowing and overlooking of the property at 1 Marook St. The planning experts gave agreed evidence that if the proposed development was approved, 50% of the private open space of this property will continue to achieve sunlight in mid-winter. I accept this evidence. On the basis that the development is in compliance with LEP 2011 and the objectives of cl 3.3.5, and the evidence of the experts, the development does unreasonably diminish sunlight to neighbouring properties.

76. The planning experts also provided evidence in relation to the privacy impacts to 1 Marook St. They concluded that as a result of changes to the amended plans (and the deletion of habitable room windows to this boundary) during the conciliation and hearing process there are no issues in relation to privacy that warrant refusal of the application. I accept this evidence.

77. The residents expressed concern that the development will lead to increased use of on street parking and will result in a reduction in off street vehicular accommodation. The undeveloped site has significant off street vehicle parking, and the site is well serviced by unregulated on street parking. Each of the proposed dwellings meets the requirement under cl 3.6.2 for two parking spaces.

78. During the proceedings the concerns of the residents in relation to parking was put to Ms Baretto who concluded she is satisfied that the proposal is acceptable.

79. I am satisfied that, having regard to the evidence before me and the circumstances of this case that the parking provision for the development is appropriate and any increase in on street parking can be accommodated.

80. The final issue raised by residents, which is not covered in the preceding, is the potential impact of the increased traffic movements at the intersection of Mobbs Lane and Raimonde Rd. During the proceedings this concern was put to Ms Baretto who gave evidence that the intersection has capacity to service the development proposed.

Subdivision

81. The development application proposes subdivision of the amalgamated lots into three allotments. Proposed Lot 1 will contain 18A and 18B, Proposed Lot 2 will contain 20A, and Proposed Lot 3 will contain 20B and 20C [exhibit E, DA 12 C, extract below].

82. The proposed subdivision complies with the minimum required frontage width and the minimum lots size of 600sqm as required by LEP 2011.

83. I am satisfied that having regard to the evidence before me, the subdivision proposed meets the relevant planning controls, and with appropriate conditions applied to any consent, is acceptable.

Conclusion

84. This judgement identifies a number of matter that require further attention by the applicant by way of amended plans and conditions prior to the determination of the appeal. These are addressed in the directions.

Directions

85. The Court directs the applicant to amend the proposal to:

• Increase the front setback of the proposed dwelling 20B and 20C, by 2 metres, to achieve a minimum of 9 metres from the street boundary at the front entry wall of 20C.

• The separate pedestrian entries to proposed dwelling 20B and 20C are to be incorporated adjacent, or within, the proposed driveway to reduce the area of hardstand at the street frontage. This will also provide a contiguous central zone of landscaping with the streetscape.

• The resulting deep soil area created is to be landscaped, along with the remaining area of the front setback not required for vehicular movement, to achieve a scale and density of planting that softens the visual impact of buildings.

• Incorporate eaves to the proposed roof designs with a minimum width of 300mm, as required by the agreed draft conditions [exhibit 4]

86. The applicant is to file and serve the amended plans no later than 14 September 2016.

87. The respondent is to file amended consolidated conditions of consent, which includes a proposed condition to require a restriction on title for 20B and 20C [as detailed in 46], and indicating the revision numbers of the amended architectural drawings no later than 21 September 2016.

88. Liberty to restore on 2 days’ notice.

89. Orders will be made in chambers.

Addendum made 23 September 2016

90. In accordance with the directions in my judgement of 30 August, on 14 September the applicant provided me amended plans and on the 23 September 2016 the respondent provided me with conditions of consent. I am satisfied that these documents accord with my findings and accordingly I make orders in chambers as follows:

1) The appeal is upheld;

2) Leave is granted to rely on amended plans arising from the directions, prepared by Terraeris dated 12/9/16;

3) Development application 818/2014 for: demolition of all structures on site and tree removal; consolidation of the lots 7 and 8 in DP39354, and re-subdivision into three allotments; construction of two attached, and one detached dwelling; and torrens title subdivision of the completed dual occupancy developments at 18-20 Mobbs Rd is approved, subject to conditions in annexure ‘A’;

4) The exhibits are returned with the exception of exhibit 2 and the amended plans referred to in (2).

…………….

D M Dickson

Commissioner

161874.16 - Annexure A (142 KB, pdf)

Amendments

26 September 2016 - Addendum - Final Orders

Decision last updated: 26 September 2016